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Deonandan Prasad Sin... v. Janki Singh And Othe...
Factual and Procedural Background
This litigation arose from the sale of an estate held under Act 11 of 1859 because the proprietors of the twelve‑annas share defaulted in payment of Government revenue. A separate account had been opened for a 4‑annas share; the residual 12‑annas share stood in the names of plaintiffs 1 to 20. Plaintiffs 7 to 16 owned 9 annas and plaintiffs 17 to 20 owned 3 annas of that share; plaintiffs 1 to 6 claimed to be assignees of portions of the 3‑annas share. The defendant Deo Nandan Prasad Singh held a usufructuary mortgage over the 3‑annas share and was the auction‑purchaser at the sale.
The plaintiffs sued in the Court of the Subordinate Judge seeking to set aside the auction sale on the ground that defendant 1 had fraudulently withheld payment of the Government demand, and they prayed that the defendant should convey the property to them and give possession with mesne profits. An alternative claim for damages was withdrawn with liberty to bring a fresh suit. The Subordinate Judge dismissed the suit with costs.
On appeal the High Court decreed that the sale was invalid and that, upon the plaintiffs paying into court the purchase money with interest from the date of the sale, the defendant should, through his guardian, convey the property to the plaintiffs by a proper deed of sale. On appeal to the Privy Council the High Court decree was modified: the Privy Council held that the sale and purchase should be declared to be held for the benefit of the plaintiffs and defendant 1 according to their respective interests, and subject to repayment of Rs. 425 with interest there was to be a direction for conveyance on payment of that amount on or before a date to be fixed by the Subordinate Judge. With that variation the High Court decree was affirmed.
The plaintiffs applied on 7 September 1918 for execution of the Privy Council decree. The judgment‑debtor (defendant 1) filed an objection on 21 November 1918. On 28 April 1919 the Subordinate Judge of Monghyr dismissed the objection and held that execution must proceed. The present appeal challenges the Subordinate Judge's order dismissing the objection.
Legal Issues Presented
- Whether delivery of possession can be ordered in execution proceedings incident to an order for conveyance (i.e., whether the decree for execution of a conveyance carries with it a right to delivery of possession enforceable in execution).
- Whether the decree of the Privy Council is a nullity and therefore not executable because one of the respondents (Eklal) allegedly died before the Privy Council heard the appeal and his heirs were not brought on the record, producing an alleged abatement that prevents execution by the remaining plaintiffs‑respondents.
Arguments of the Parties
Appellant's Arguments (judgment‑debtor)
- There can be no delivery of possession in these execution proceedings because the Privy Council directed only the execution of a conveyance and the decree is silent as to delivery of possession; therefore plaintiffs must bring a fresh suit on the completed contract for possession.
- The 3‑annas share is under a usufructuary mortgage and assignments among co‑sharers have been freely made, so a decree for possession could not be practically worked out in the execution department.
- The decree of the Privy Council is a nullity insofar as one respondent (Eklal) is alleged to have died before the decree; since his heirs were not on the record, the cause of action as to his interest has abated and the remaining plaintiffs cannot execute the decree.
- Evidence was produced to suggest Eklal died in 1916 (a karpardaz's testimony and a report referencing a death register), implying the Privy Council heard the appeal after his death.
Respondents' Arguments (plaintiffs)
- The plaintiffs sought both to set aside the sale and to obtain delivery of possession after execution of the conveyance; the relief as to possession is ancillary to the order for execution and follows from it.
- Evidence was produced that Eklal died in 1917 (testimony of a co‑sharer named Janki Singh), and the Subordinate Judge found that the onus of proving an earlier death was not discharged by the appellant.
- The reports from the Collector's office relied upon by the appellant were unreliable because the relevant original register had been destroyed before respondents could inspect it, and the date of death contention was not timely disclosed by the appellant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ranjit Sinha v. Kalidasi Debi | Supports the proposition that a cause of action for delivery of possession may arise both upon the contract and upon the completed conveyance (i.e., delivery of possession can accompany specific performance). | The court relied on this authority to show that delivery of possession is not limited to a separate suit on the completed conveyance but can be included in relief by way of specific performance and therefore enforceable in execution. |
| Madan Mohan Singh v. Gaja Prasad Singh | Also cited to support that delivery of possession may arise either under the contract or the conveyance. | Used alongside Ranjit Sinha to justify that possession relief may follow the order for execution of the conveyance. |
| Krishnammal v. Manandiar Sundararaja Aiyar | Represents a view (from the Madras High Court) that may be contrary to the proposition that possession relief is included with specific performance. | The court stated respectful disagreement with any contrary view suggested by this case and explained why, on the facts and principles before it, possession relief should follow the conveyance order. |
| Flood v. Egan | Holds that where the Judicial Committee (Privy Council) heard and decided an appeal in ignorance of a respondent's death, the courts below should not lightly ignore a decree of the Sovereign in Council; statutory authority was cited (Will. 4, C. 41, S. 23). | The court applied this authority to reject the contention that the Privy Council decree was a nullity because a respondent had died; the court held that a Court in India cannot treat the Sovereign's order as void on that ground. |
Court's Reasoning and Analysis
The court addressed the two principal objections raised by the appellant in turn.
1. Delivery of possession in execution of decree for conveyance:
- The court began from the accepted principle that in a suit for specific performance the plaintiff may join a claim for delivery of possession unless the contract expressly precludes it. It recognized authorities and procedural forms (Forms Nos. 47 and 48, Appendix A, Sch. 1, CPC) indicating that delivery of possession may arise either under the contract or under the completed conveyance.
- Applying Order 2, Rule 2 of the Code of Civil Procedure, the court noted that ordinarily both conveyance and possession relief would be granted together, and a subsequent suit for possession would be barred because the Court should not direct performance of part of a contract where the whole can be enforced.
- The court accepted that an exception exists where the conveyance embodies the substantial part of the agreement and the Court can direct its execution without regard to whether its provisions can be specifically enforced, but found that where right to possession springs from the contract it is generally included within relief for specific performance.
- While acknowledging a contrary statement in Krishnammal (Madras High Court), the court respectfully disagreed and held that the Calcutta High Court and the Judicial Committee intended possession relief to be ancillary to, and to follow from, the order for execution of the conveyance.
- The court rejected practical objections that a usufructuary mortgage or multiple assignments among co‑proprietors would render execution impracticable: the vendor is required to give such possession as the nature of the property admits, and here giving plaintiffs the possession they had at the time of sale posed no insuperable difficulty; execution department relief was appropriate and preferable to multiplying litigation.
- The court further held Section 47 CPC did not bar delivery of possession in execution, because that section prevents a separate suit for a relief while execution is pending, and in the court's view delivery of possession properly formed part of the decree being executed.
- Consequently, if the judgment‑debtor refuses to execute the conveyance, upon the officer of the Court executing the document on his behalf a right to possession vests in the decree‑holder enforceable by the execution court.
2. Allegation that the Privy Council decree is a nullity because of the death of a respondent (Eklal):
- The court refused to treat an order of the Judicial Committee (Privy Council) as a nullity on the basis that a respondent had died before the hearing and the Judicial Committee was unaware of the death. It relied on Flood v. Egan and statutory provisions (Will. 4, C. 41, S. 23) as authority for the proposition that courts below should not ignore a decree of the Sovereign in Council on such grounds.
- The court also analysed the factual record: the Subordinate Judge had heard oral evidence and found that the appellant had not discharged the onus of proving that Eklal had died before the Privy Council heard the appeal. Testimony presented by the appellant (a karpardaz) placed the death in 1916; respondents produced testimony that Eklal died in 1917; the collectorate report relied upon by the appellant referred to a register entry but the original register had been destroyed before respondents could inspect it.
- The court noted the appellant had failed to give particulars in its initial execution petition and disclosed the specific date of death only after the destruction of the register, undermining the reliability and fairness of the documentary evidence produced. Given the state of documentary and oral evidence, the court agreed with the Subordinate Judge that the appellant had not discharged the onus upon him.
On both grounds argued, the court found the appellant's contentions untenable and dismissed the appeal with costs. The opinion records that Justice Sultan Ahmed concurred.
Holding and Implications
Holding:
The appeal is dismissed with costs.
Direct implications for the parties:
- The Subordinate Judge's order dismissing the judgment‑debtor's objection stands, and execution of the Privy Council decree may proceed.
- The court held that delivery of possession is properly incident to the order for the execution of the conveyance and may be effected in execution proceedings; if the judgment‑debtor refuses to execute the conveyance, the officer of the court may execute it and the decree‑holder's right to possession will be enforceable by the execution court.
- The contention that the Privy Council decree was a nullity because of the earlier death of a respondent was rejected both as a legal proposition (courts should not treat a Sovereign Council's decree as void on that basis) and on the facts (the appellant failed to discharge the evidential onus regarding the alleged date of death).
Broader implications: The court explicitly disagreed with a contrary view attributed to Krishnammal v. Manandiar Sundararaja Aiyar and reaffirmed that possession relief can follow an order for execution of a conveyance in appropriate cases. The opinion did not state that a new binding precedent was established beyond the application of these principles to the facts before the court.
Result: Appeal dismissed. (Sultan Ahmed, J. concurred.)
Mullick, J.:— This litigation arises out of the sale of an estate which was held under Act 11 of 1859 in consequence of the default of the proprietors of the twelve-annas share to pay the Government revenue due from that share.
2. It appears that a separate account has been opened for the 4-annas share and that the residuary 12-annas share stands in the names of plaintiffs 1 to 20; plaintiffs 7 to 16 and 17 to 20 are respectively owners of 9-annas and 3-annas therein; plaintiffs 1 to 6 claim to be assignees as to portions of the above 3-annas share, while the defendant Deo Nandan Prasad Singh holds a usufructuary mortgage over the same and was the auction-purchaser at the sale.
3. The plaintiffs brought the suit in the Court of the Subordinate Judge to set aside the auction sale on the ground that defendant 1 had fraudulently withheld payment of the Government demand and they claimed that the defendant should convey the property to the plaintiffs and give possession with mesne profits. An alternative claim for damages was also made, but it was withdrawn with liberty to bring a fresh suit thereon. The Subordinate Judge dismissed the suit with costs.
4. On appeal to the High Court it was decreed that the sale was invalid and that, upon the plaintiffs paying into Court the purchase money with interest from the date of the sale, the defendant should through his guardian convey the property to the plaintiffs by a proper deed of sale.
5. On appeal to the Privy Council this decree was modified and their Lordships were of opinion that the declaration in the decree, that the sale and purchase were invalid, was misconceived as a description of the legal position, and that in its place should be substituted a declaration that the property purchased must be held for the benefit of the plaintiffs and defendant 1 according to their several interests, and that subject to the repayment of Rs. 425 with interest, there should be a direction fore conveyance as decreed by the High Court on payment of that amount on or before a date to be fixed by the Subordinate Judge. With this variation the decree of the High Court was affirmed in all respects.
6. The plaintiffs then applied on 7th of September 1918 for the execution of the above decree. The judgment-debtor, defendant 1, filed an objection on 21st November 1918. On the 28th April, 1919 the Subordinate Judge of Monghyr dismissed the objection and held that execution must proceed. The present appeal is directed against this order of dismissal.
7. The first point urged before us is that there can be no delivery of possession in this execution proceeding.
8. It is contended that their Lordships of the Privy Council only directed the execution of a conveyance and that as the decree is silent as to delivery of possession, the plaintiffs must bring a separate suit on the completed contract.
9. Now it is admitted that in a suit for specific performance of a contract for sale of land it is open to the plaintiff to join with his prayer for specific performance a claim for delivery of possession, unless the contract expressly disentitles him to such relief. A contrary view has sometimes been taken, but I think it is now settled that a cause of action for delivery of possession may arise both upon the contract and the completed conveyance: see Ranjit Sinha v. Kalidasi Debi(1) and Madan Mohan Singh v. Gaja Prasad Singh(2). Forms Nos. 47 and 48 given in Appendix A, Sch. 1, Code of Civil Procedure, also support this view.
10. Ordinarily the plaintiff would be entitled to ask for both reliefs and a sub-sequent suit for delivery of possession would I think be barred under the provisions of O. 2, R. 2 of the CPC which in its application to cases of contract merely asserts the principle that the Court will not direct the performance of a part of the contract where the whole can be enforced. As an exception to this rule, the Court will decree a claim for a conveyance only in cases where it embodies the substantial part of the agreement and where the Court can direct its execution without regard to the question whether or not its provisions can be specifically enforced.
11. Where the right to possession springs out of the contract for sale delivery of possession would in my opinion be included in relief by specific performance. Generally the right arises coincidently with the right to the execution of the conveyance, and if their Lordships of the Madras High Court in Krishnammal v. Manandiar Sundararaja Aiyar(3) intended to lay down a contrary view I would respectfully venture to differ.
12. The plaintiffs before us did in fact ask that the sale should be sat aside and delivery of possession given after the execution of a conveyance, and in my opinion their Lordships of the Calcutta High Court, as well as their Lordships of the Judicial Committee intended that the relief as to possession, being ancillary, should be included in the relief as to execution of the necessary document. Therefore although their Lordships of the Judicial Committee have not expressly made an order for delivery of possession, that relief follows immediately from the order for the execution of the conveyance.
13. It has been contended by the learned vakil for the appellant that other equities may arise and it has been hinted that a decree for delivery of joint possession is in the nature of a declaratory decree and cannot be executed. Such a view has sometimes been taken, but the weight of authority, in my opinion, shows that delivery of joint possession can be made among co-proprietors.
14. Then it is said that the 3 annas share is under usufructuary mortgage and that for this reason and for the reason that assignments have been freely made by the recorded cosharers, a decree for possession could not be worked out in the execution department. The law however merely requires that the vendor shall make to the vendee such delivery of possession as the nature of the property admits of, and in this case I see no difficulty in giving to the plaintiffs that possession which they had at the time of the sale. There is no reason why the plaintiffs should be relegated to a separate suit for obtaining a relief which can without difficulty be given in the execution department, and I cannot conceive that it is the intention of their Lordships of the Judicial Committee that litigation should be multiplied for this purpose.
15. It is contended that if a suit for possession lies upon the executed conveyance, then delivery of possession should not be made in execution. I do not think Section 47 of the CPC, is any bar. That section says that if the decree gives a certain relief, a separate suit for obtaining that relief will not lie during the pendency of execution proceedings founded on that decree. In the view that I take of the meaning of the decree, delivery of possession can and should be made.
16. I think therefore that the first objection must fail and upon the officer of the Court executing the document on behalf of the judgment-debtor, if he refuses to execute it a right to possession vests in the decree-holder which can be enforced by the elocution Court.
17. The next point urged on behalf of the appellant is that the decree of their Lordships of the Privy Council is a nullity, inasmuch as the heirs of one of the respondents who had died before the decree were not brought upon the record. It is contended that so far as the interest of the deceased plaintiff-respondent is concerned, the suit has abated and as the cause of action has not survived to the remaining plaintiffs respondents, they cannot execute the decree.
18. Now apart from the question of fact as to whether or not Eklal, the deceased respondent, had died before their Lordships of the Privy Council heard the appeal, I am unable to accede to the proposition that any Court in India can regard the order of the Sovereign as a nullity. It has been held in Flood v. Egan(4) that where, pending the hearing of the appeal, the respondent died and the Judicial Committee heard the appeal in ignorance of the death, and the appellant was ordered to pay costs, the Court below should refuse to ignore a decree of the Sovereign in Council. The provisions of Will. 4, C. 41, S. 23, seem to furnish express statutory authority for this view. Indeed it would be a curious result if the defendant-appellant should now be permitted to take advantage of his own negligence or wilful omission. It was his duty to substitute parties in the Privy Council and it is certain that if he had succeeded in his appeal, he would have strenuously resisted the plea that the decree was a nullity. I think therefore that the contention, that the only decree which it was possible to the Subordinate Judge to execute was the decree of the High Court, is untenable and must; fail.
19. But there is a more substantial ground upon which the appellant's contention must fail. The learned Subordinate Judge has found that Eklal did not the in 1916, as has been alleged by the appellant, and that he was alive at the time that their Lordships heard the appeal. One witness a karpardaz, has given evidence on be-half of the appellant that Eklal died in 1916. On the other hand the respondents have produced one of their cosharers, named Janki Singh, who says that Eklal died in 1917. The learned Subordinate Judge, having taken the oral evidence of both sides into consideration, has come to the conclusion that the judgment-debt-or has failed to discharge the onus that lay upon him. The appellant also produced report from an officer of the Collector's office at Monghyr stating that in a certain death register kept in the Collectorate for the year 1919 the name of Eklal is shown as having died on 29th March of that year. The report was signed on 3rd January, 1919 and the register in question was destroyed on 15th March of that year. The original register was therefore not available to the respondents in the Court of the Subordinate Judge on 26th April when the hearing of the execution case began. It is clearly impossible to place any reliance upon a report of this kind. The respondents had no opportunity of calling for the original register or even obtaining copies of the relevant entries therein with a view to eliciting what was the nature of the register, who was the person who gave the information of the death of Eklal and what was his official status.
20. It is very pertinently observed by the learned Subordinate Judge that in the execution petition filed by the judgment-debtor on 21st November 1918 no particulars were given showing that the judgment-debtor would contend that Eklal died on 29th March, 1916, and that the date of his death was not disclosed till 18th March, 1919, that is to say, three days after the destruction of the register. The appellants have also filed two reports from the office of the Collector, Exs. 2 and 2-A, to the effect that in the death register for 1917 there is no entry of Eklal's death. The learned Subordinate Judge observes that Eklal may have died in a village other than the village to which the register relates. We agree with the learned Subordinate Judge that in this state of the evidence, both documentary and oral, it would be impossible to hold that the onus cast upon the appellant has been discharged.
21. These are the only two points which have been argued before us and on both the appellant must fail. The appeal is therefore dismissed with costs.
22. Sultan Ahmed, J.:— I agree.
V.S/R.K
23. Appeal dismissed.
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