Jugobundhoo Roy vs Lokenath Roy on 25 April, 1876

Calcutta High Court
Jugobundhoo Roy vs Lokenath Roy on 25 April, 1876
Equivalent citations: (1876) ILR 1 Cal 297
Author: L Jackson
Bench: L Jackson, Mcdonell


L.S. Jackson, J.

1. In appeal the first point argued was that the Subordinate Judge ought to have dismissed the plaintiff’s case on the strength of the Privy Council Rulings cited by the (defendant) appellant. Great stress was laid upon the fact that Grish Narain and Mohendro Narain were admittedly not in possession at the time they granted the lease, which formed the basis of the plaintiff’s claim, and it was pointed out that the ikrar, dated 17th Assar 1278, clearly showed that the full payment of the consideration was contingent on the result of this litigation, and that thus the suit was eminently a speculative one. The rulings cited by the (defendant) appellant before the Subordinate Judge as well as Tara Soondaree Chowdhrain v. The Collector of Mymensingh 13 B.L.R. 495 Ram Khelawun Singh v. Mussamut Oudh Kooer 21 W.R. 101, Boodhun Singh v. Mussamut Luteefun 22 W.R. 535 and Bishonath Dey Roy v. Chunder Mohun Dutt Biswas 23 W.R. 165 were referred to in support of the appellant’s contention. Now the ruling in Tara Soondaree Chowdhrain v. The Collector of Mymensingh 13 B.L.R. 495 only shows that where the vendor was a defendant in the suit, and the agreement was only to sell as much as was recovered, the suit could not be maintained as contrary to public policy. In the ruling in Ram Khelawun Singh v. Mussamut Oudh Kooer 21 W.R. 101 the principle laid down was that wherever a party executed a deed of sale of property not in his possession, this should be held to be only a contract to sell. In Bhoodhun Singh v. Mussamut Luteefun 22 W.R. 535 it was ruled that an assignee of property is not entitled to recover against his assignor, on the footing of a champertous contract, and that an assignee of property, whose assignor was not in possession when the assignment was made, can only recover even from the hands of third persons, upon showing that he should have a right to enforce specific performance of his contract against his assignor, if the property were to come back to the hands of the assignor. The ruling in Bishonath Dey Roy v. Chunder Mohun Dutt Biswas 23 W.R. 165 lays down the proposition that alleged purchasers whose vendors were not in possession, and who pay nothing for what is said to have been sold to them, are not competent to maintain a suit for possession of the property in dispute. The ruling in Rajah Sahib Prahlad Sen v. Budhu Singh 2 B.L.R.P.C. 111 : S.C. 12 Moore’s I.A. 275 has been fully discussed by the Subordinate Judge.

2. None of these rulings in our opinion apply to the present case. The present case was not brought for the specific performance of a contract, and there is nothing to show that the plaintiff has not performed his part of the contract. The contract may be a speculative one, but there is nothing to show that the plaintiff purchased at a sum below the value of the thing sold. The stipulation in the ikrar, regarding the refusal of part of the consideration money in case of loss of the thing sold tends to show that the price paid was adequate. There is nothing in the present case to show that the dur-patni potta was evidence of a contract to be performed in future on the happening of a certain contingency, or that if it were so that the plaintiff has not done all he was bound to do, if a suit for the specific performance of the contract were brought. The ikrar in the present case shows that the transfer was in substance complete. The warranty clause at the end of the first paragraph shows not only that the consideration money was paid, but that under certain contingencies it would be refunded.

3. In none of the cases relied on by the appellant has it been held that a transfer of property of which the transferor is not at the time of such transfer in possession would be ipso facto void.

3. The rulings in Bikan Singh v. Mussamat Parbutty Kooer 22 W.R. 99, Chedambara Chetty v. Renja Krishna Muthu Vira Puchanja Naiker 13 B.L.R. 509 and Gungahurry Nundee v. Raghubram Nundee 14 B.L.R. 307 point to a contrary conclusion. In the first of these cases it was ruled that where a conveyance of property was made by a person who had been in possession and enjoyment for years before, and he was wrongfully ousted, the conveyance gave a right to sue for immediate possession. In the second the Lords of the Judicial Committee of the Privy Council pointed out that the statute of champerty has no effect in the mofussil of India; they held that the true principle was that stated by Sir Barnes Peacock, viz. that the Courts in India administering justice in accordance to the broad principles of equity and good conscience, will consider whether the transaction is merely the acquisition of an interest in the subject of litigation bond, fide entered into, or whether it is an unfair or illegitimate transaction got up merely for the purpose of spoil or of litigation, and carried on for corrupt or other improper motives.

4. In the third the ruling was still stronger; there it was distinctly held that delivery was not necessary to complete the title of the vendee; further that this was the general rule in India, and that under the Hindu law a well defined usage acquires the force of law. Considering, therefore, that the latter rulings support the view taken by the Subordinate Judge, we hold that in the present case the plaintiff had a right to bring the suit.

5. His Lordship after deciding the remaining issues in the plaintiff’s favour dismissed the appeal with costs.

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