Hiralal v. Dagdoo

1. The plaintiff gives the following genealogical tree to show how the two principal defendants are related: A (name not known)

2. The family owned survey Nos. 15, 21, 14 and a 4-annas share in survey No. 3 of Mauza Mhasla Buzrak in 1871 as ancestral property. Muktaji separated taking a third of the lands but continued to cultivate jointly, and his share went to Maruti and Rama. Maruti and Rama owned survey No. 7 of the village.

3. Plaintiff's story has been changed several times.

4. He alleges there was a partition three, years ago when defendant 5 took the pot Nos. 1 and 3. Dagdoo by a sale-deed dated 24th October 1913, Ex. P-5, sold to the plaintiff his half share in survey Nos. 15, 21, 3, 7 and 14 for Rs. 2,000 and plaintiff claimed a joint half in survey Nos. 15, 21, 7 and 14 and pot Nos. 2, 4 and 6 in survey No. 3. Dagdoo admitted the sale, stating that Rakhmaji, defendant 2 and himself had always been joint. His father died when he was a minor and Rama and Rakhmaji brought him up. In 1913 he claimed his half share, whereupon defendant 2 turned him out and he then sold to the plaintiff his half share. Rakhmaji admitted the correctness of the genealogy as regards Dagdoo's ancestors up to Parwata and his own ancestors as far as Laxman and Parwata were distant bhaubands and not joint. He denied that Dagdoo was ever joint with himself or his father. Rama and Muktaji were divided. They owned survey Nos. 14, 7, 2/3rds in Nos, 15 and 21 and pot Nos. 2, 4 and 6 in survey No. 3, pot Nos. 1 and 3 in that field belonged to defendant 5 and pot No. 5 to defendant 6. He denies any partition three years ago. As Muktaji died without heirs, Rama his brother got his share in the lands. In survey Nos, 15 and 21 defendant Dagdoo's father owned a joint one-third share and during Dagdoo's minority that was sold to Rama by his mother by a sale-deed of 15th August 1883, Ex. D2-1, for Rs. 49 and since defendant 2 and his father has been in possession of these two full numbers. Defendant 2 sold survey No. 14 to Ramasa, defendant 4, on 27th November 1892 and since then Ramasa has been in possession and now he has sold it to defendant 3 on 10th December 1912. He denies the alleged sale to the plaintiff.

5. Defendants 3 and 4 support the story of defendant 2 as regards survey No. 14 and plead that if plaintiff vendor had any title in this field, it has been lost by adverse possession for more than 12 years. Defendants 5 and 6 have been given up by the plaintiff and the sale to Rama by Dagdoo's mother was denied as was the sale by Rakhmaji to defendant 4 Ramasa.

6. The case went to trial on the following issues:

(1) Whether defendant 1 has sold half the shares in survey Nos. 15, 21, 3, 7 and 14 of Mauza Mhalsa to plaintiff, for consideration, by sale-deed dated 24th October 1913? (2) How are defendants 1 and 2 related to each other? (3) Whether they have been joint upto now and (a) Whether the fields in suit are their ancestral property? (b) What shares have each of defendants 1 and 2 got in the field? (4) Whether Mt. Gangabai sold defendant 1's shares in survey Nos, 15 and 21 by sale-deed dated 15th August 1883 as alleged by defendant 2? (5) Whether on 27th November 1892, defendant 2, Rakhmaji sold survey No. 14 to Ramasa defendant 4 and put him in possession? (6) Whether defendant 4 has become entitled to the field by statutory possession for more than 12 years before plaintiff's suit? (7) To what relief is plaintiff entitled and against which defendants.

7. The findings of the first Court may be summarized thus:

(a) The relationship between defendants 1 and 2 has not been established, (b) Defendant 2 sold survey No. 14 to Ramasa and since then the latter has been in possession for more than 12 years before plaintiff's suit and is entitled to it by adverse possession, (c) The sale-deed by which the one-third share in survey Nos. 15 and 21 is said to have been conveyed to Rama on 15th August 1883 was held to be a forgery. Defendant 2 had foolishly entered therein the assessment of the present revenue survey and settlement in place of that fixed for the year in which the document is alleged to have been executed, (d) That plaintiff has failed to prove that defendants 1 and 2 were joint or jointly owned the fields in suit, except one-third in survey Nos. 15 and 21 of which the sale-deed has been found to be forged, (e) That though the sale-deed to the plaintiff has been executed yet no consideration passed and that plaintiff had purchased a legal speculation. A decree was passed giving plaintiff possession of a joint one third share in survey Nos. 21 and 15 and the rest of the claim was dismissed.

8. On appeal made by defendant 2 in which the plaintiff filed cross-objections, the finding that no consideration passed for the plaintiff's sale-deed dated 24th October 1913 was confirmed. It was held that plaintiff had purchased merely a right to sue and the deed was not an assignment of the property. The finding that plaintiff had failed to prove the relationship between defendants 1 and 2 was confirmed. The claim to survey No. 14 was held long time barred. The appeal was allowed, and the cross-objections dismissed. The result was that the suit was wholly dismissed.

9. I may mention that defendant 2 and the scribe of the alleged sale-deed of 1883 have been criminally prosecuted and sentenced to imprisonment, the document having been found to be a forged document. It is here contended that the plaintiff's purchase, being admitted and supported by the vendor it was not open to the lower appellate Court to question its bona fides and consideration, or to hold the suit not maintainable on the ground that all that the plaintiff purchased was a mere right to sue. I think there is force in this contention. It is unlawful to purchase an interest in property merely for the purpose of litigation necessary for realizing that interest: see Deorao v. Sadasheo(1). It was held in Fischer v. Kamala Naicker(2) that a contract in order to be invalid

“must be something against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral and to the constitution of which a bad motive in the same sense is necessary.”

10. There is no law in India similar in its effect to the English law of champerty and maintenance, and it seems to me that as the seller in the present case does not repudiate the contract defendant 2 could not do so; nor do I think that a mere right to sue was purchased, or that the transaction necessarily led to unnecessary litigation. For defendant 1's contentions are that when he claimed the share in the property defendant 2 turned him out and it was open for defendant 1 to sue for his rights. By a sale transferring his rights plaintiff sued instead of him.

11. It seems clear that as defendant 2 denied Dagdoo's title the latter sold it to the plaintiff. I agree with the Courts below that the purchase was purely speculative and that the consideration mentioned in the deed of sale has not passed but this by itself would not invalidate the sale. There is probably some secret understanding between plaintiff and his vendor as to what the latter should get in case the former succeeds in this suit. Having bought with very little idea as to the past history of the land plaintiff has endeavoured not in the cleanest way to prove Dagdoo's ownership. The finding that plaintiff has failed to establish the relationship between Dagdoo and Rukhmaji is one of fact binding on this Court and the whole story of a common ancestor, joint possession on the ground of relationship and an alleged partition therefore goes. It is not pleaded nor argued that minority saves limitation. The suit as regards survey No. 14 is clearly time barred. Rukhmaji has put up a false defence as regards survey Nos. 15 and 21, but that fact does not prove that the claim is within limitation. It is argued that the right of Dagdoo to these fields once being admitted, it lay on Rukhmaji to establish how this land was his, but before that it was incumbent on the appellant to establish his vendor's possession within 12 years of the suit. I have read the evidence and am of opinion that the appellant has failed to prove the subsisting title of his vendor at the time of sale. The lower appellate Court's finding in this respect is correct. Dagdoo may have had a share in survey Nos. 15 and 21 once, but it is obvious that Bukhmaji has been holding against him for more than 12 years prior to plaintiff's purchase in 1913. Plaintiff bought to fight Dagdoo's battles, and the changes in the pleadings point to a very imperfect conception of facts relating to past ownership and past possession. There is nothing to vitiate the findings of fact come to by the lower appellate Court, findings upon which the decision in the case turns, and they are conclusive. The suit has been rightly decided and this appeal fails and is dismissed with costs.

P.N/R.K

12. Appeal dismissed.