White, C.J:— Two questions, it seems to me, arise for consideration in this appeal. First, was there a contract between the 1st defendant and the Maharajah acting through his agents, on the strength of which the 1st defendant had a good defence to the plaintiff's claim in the ejectment and which would entitle the 1st defendant to remain in possession of the lands in question? secondly, assuming there was a contract, was the Maharajah, entitled by reason of the events which happened to withdraw his consent and to repudiate the contract and to deal with the lands as if no contract had been entered into?
2. The first question turns mainly on the documentary evidence.
3. The 1st document is Exhibit I. This is a record of the sale, as I understand it, of the right of occupancy in the lands in question. The 1st defendant was the highest bidder and we find this statement in the document, that as the 1st defendant “bid the last bid for one hundred and fifty rupees, and as no other bid for more than that it (the sale) has been confirmed in the name of the highest bidder, Chitibobu Adenna, subject to the approval and orders of the special agent, Vizianagaram Samastanam.” That is dated 8th July 1907. Then on August 16th we have a document which embodies the approval of the special agent. That document, which is Exhibit V, is in these terms. “The leasing out of the said Patta lands for settlement cowle for Fasli 1317 to Adenna Chitibobu (the 1st defendant) according to the amin's recommendation has been approved. It must be duly given effect to.” On August 29th we have an application by the plaintiff for a cowle of the lands in question. That is Exhibit L. On September 6th we have a document, Exhibit H, which amounts to a grant of the lands in question to the plaintiff, who is now seeking to eject the defendants. The terms of that order are very similar to the terms of the document which embodies the approval by the special agent of the confirmation of the sale by the amin in favour of the 1st defendant.
4. Mr. Srinivasa Aiyangar has contended that Exhibit I was nothing more than an offer by the 1st defendant to the amin. He says that, that being so, there was no contract between the parties because the communication of the acceptance by the agent of the Maharajah was not complete (we must take it as a fact that the acceptance was not communicated to the 1st defendant). He relies on Section 4 of the Contract Act: “The communication of an acceptance is complete……as against the acceptor when it comes to the knowledge of the proposer.” If Exhibit I were nothing more than an offer made through the amin and all that the amin had said was “You have made an offer; I will communicate it to my superior officer and see if he is prepared to accept it,” then, no doubt, Mr. Srinivasa Aiyangar's contention under Section 4 of the Contract Act would be good. But it seems to me that Exhibit I is a great deal more than that. It seems to me that it amounts to an acceptance on behalf of the principal of an offer which has been made subject to a condition subsequent, and that, if that condition subsequent is satisfied, then there is a contract. That the special agent in fact approved is not denied.
5. I will take it to be the case that the onus is on the 1st defendant to establish that the confirmation which the amin purported to give to the sale, was an act within the scope of his authority. If the onus is on the 1st defendant—I am not quite sure that it is—we have to consider what there is to satisfy that onus. We have been referred to a document, Exhibit D, which purports to define the scope of the agent's authority. We find in it a direction to the amin from the special agent that “the usual auction must be held and a full report should be sent… Everything should be done subject to the approval of the undersigned.” I do not think the latter sentence carries the case much further, because nobody denies that what was done under Exhibit I was subject to the approval of the special agent. We have the words “the usual auction must be held.” That seems to me to indicate that what took place when the 1st defendant was the highest bidder was in accordance with the usual practice. I think it may fairly be assumed that the terms which are embodied in the document, represent the usual practice which prevailed when a sale by auction took place by the amin. There can be no question that the amin purported to confirm the sale in favour of the 1st defendant subject to the approval and orders of the special agent, and if the onus is on the 1st defendant to show that the amin in so acting was acting within the scope of his authority, I think there is evidence to show that when the amin purported to confirm the sale subject to the condition subsequent, he was acting within the powers which were entrusted to him as agent.
6. As regards this part of the case Mr. Srinivasa Aiyangar cited several authorities, but I do not propose to deal with them as the question here really turns upon the construction of instrument, and upon the facts of this particular case, I think there was a contract between the 1st defendant and the Maharajah's representatives.
7. The second question is, was the Maharajah entitled in the events which happened to repudiate the contract? It is contended that he was, as soon as he ascertained that the 1st defendant had not entered into the contract on his own behalf but on behalf of another man. The learned Judge would seem to a great extent to rest his judgment on this part of the case on the ground of fraud. He says in one part of the judgment: “If the 1st defendant did not inform the amin that he was bidding for the 4th defendant he committed a fraud.” Further on he says: “The very fact that the 1st defendant concealed from its knowledge that he had bid for the 4th defendant would amount to a fraud practised by him on it, (the samasthanam).” It is admitted that the 1st defendant in bidding was not acting on his own account but was acting as a name-lender for or on behalf of another party, i.e, the 4th defendant. I cannot take the view of the learned Subordinate Judge that the fact that the 1st defendant was a benamidar acting for some other man was in itself fraudulent and would entitle the Maharajah to withdraw his consent and to repudiate the contract. The relations between the 1st defendant and the 4th defendant are clear enough. They are to be found in Exhibit VII, which is a letter from the 1st defendant to the 4th defendant in respect of this transaction and the release deed (Exhibit VIII). These documents show that the 1st defendant intended that the 4th defendant should have the benefit of this transaction and that he should have possession of the lands. As I have said there is nothing fraudulent in the fact that the 1st defendant was a benamidar.
8. Then can it be said that there was such misrepresentation or suppression of material facts, as would entitle the Maharajah to withdraw his approval and repudiate the contract. It must be observed that this is not a personal contract, that it is not one of the class of cases in which one party to the contract may be said to rely on the personal qualities or personal character of the other. It is a contract to put a man in possession of land. It is conceded that, if a formal lease had been given to the 1st defendant, nothing could have prevented him from assigning the rights which he had acquired to anybody he pleased. That being so, I am certainly not prepared to hold from the mere fact that he was acting on behalf of somebody else when he made the bid and when the sale was confirmed in his favour with the condition to which I have referred, that the 1st defendant was either misrepresenting things or suppressing material facts so as to entitle the Maharajah to say, “in view of certain facts which have been brought to my notice since I gave my consent, I withdraw my consent and repudiate the contract.” There was no restriction of any sort or kind in the conditions of sale which provided that bids must be made in the bidder's own interest and not on behalf of anybody else. I do not think that any case could be found in which a defence to a suit for specific performance had been successfully set up to the effect that the man who had entered into the contract for specific performance was not the man who had the beneficial interest.
9. It was further contended by Mr. Srinivasa Aiyangar that the Maharajah had the right to withdraw his consent because, as I understood his argument, the title of the 1st defendant was not complete since there had been no exchange of patta and muchilika as between him and the Maharajah. No doubt an exchange of patta and muchilika or an agreement to dispense with the exchange of patta and muchilika is a condition of the right to recover rent. But I do not think it has ever been suggested that the exchange of patta and muchilika gives title. No doubt the parties contemplated that something further should be done after the agent's consent was given, but this was not necessary for the completion of the 1st defendant's title; For these reasons I think that the District Munsif is right and that we should set aside the decree of the Subordinate Judge and dismiss the suit with costs throughout.
Sankaran Nair, J.:— I agree.
S.N/R.K
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