{"id":127810,"date":"1951-02-09T00:00:00","date_gmt":"1951-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/srinivas-ram-kumar-vs-mahabir-prasad-and-others-on-9-february-1951"},"modified":"2015-12-15T09:12:51","modified_gmt":"2015-12-15T03:42:51","slug":"srinivas-ram-kumar-vs-mahabir-prasad-and-others-on-9-february-1951","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/srinivas-ram-kumar-vs-mahabir-prasad-and-others-on-9-february-1951","title":{"rendered":"Srinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Srinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951<\/div>\n
Equivalent citations: 1951 AIR 177, \t\t 1951 SCR 277<\/div>\n
Author: B Mukherjea<\/div>\n
Bench: Mukherjea, B.K.<\/div>\n
           PETITIONER:\nSRINIVAS RAM KUMAR\n\n\tVs.\n\nRESPONDENT:\nMAHABIR PRASAD AND OTHERS.\n\nDATE OF JUDGMENT:\n09\/02\/1951\n\nBENCH:\nMUKHERJEA, B.K.\nBENCH:\nMUKHERJEA, B.K.\nSASTRI, M. PATANJALI\nMAHAJAN, MEHR CHAND\n\nCITATION:\n 1951 AIR  177\t\t  1951 SCR  277\n CITATOR INFO :\n R\t    1964 SC 136\t (11)\n R\t    1964 SC 818\t (9)\n D\t    1978 SC1362\t (25)\n\n\nACT:\n    Pleadings--Inconsistent   pleas--Plaintiff\t suing\t for\nspecific  performance  alleging\t that  money  was  paid\t  as\nprice--Defendant   pleading  that  money  was  received\t  as\nloan--Plaintiff's  case\t not proved-Whether  decree  can  be\ngiven for recovery of money as loan on defendant's plea.\n\n\n\nHEADNOTE:\n    Though the court would not grant relief to the plaintiff\non a case for which there was no foundation in the pleadings\nand  which  the\t other side was not called upon\t or  had  no\nopportunity  to meet, yet, when the alternative\t case  which\nthe  plaintiff could have made was not only admitted by\t the\ndefendant  in  his written statement but was  expressly\t put\nforward\t as an answer to the claim which the plaintiff\tmade\nin  the suit. there would be nothing improper in giving\t the\nplaintiff a decree upon the case which the defendant himself\nmakes.\tIn such circumstances, when no injustice can  possi-\nbly  result to the defendant, it may not be proper to  drive\nthe plaintiff to a separate suit.\n    The\t  plaintiff brought a suit for specific\t performance\nof  an agreement to sell a house alleging that he  had\tpaid\nRs. 30,000 towards the price and had been put in  possession\nin  part  performance  of the contract,\t but  the  defendant\npleaded that the amount of Rs. 30,000 was received as a loan\nand  the plaintiff was put in possession only to  facilitate\npayment\t of interest, and the court found that\tthe  defend-\nant's plea was true: Held, that a decree could be passed  in\nfavour\tof  the\t plaintiff for recovery of the\tsum  of\t Rs.\n30,000\tand  interest remaining due under the  agreement  of\nloan pleaded by the defendant, even though the plaintiff had\nnot set up such a case and it was even inconsistent with the\nallegations in the plaint.\n    Babu  Raja\tMohan Manucha v. Babu  Manzoor\t(70  I.A..1)\nreferred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION : Appeal from\t a  judgment
\nand  decree of the High Court of Judicature at\tPatna  dated
\n29th August, 1947, in First Appeal No. 13 of 1945, modifying
\na decree of the Subordinate Court of Gaya in O.S. No. 59  of
\n1943: Civil Appeal No. 82 of
\n278<\/span>
\n    S.P.  Sinha\t (C. R. Pattabhi Raman and B.K.\t Saran\twith
\nhim) for the appellant.\n<\/p>\n
   Udai Bhan Chaudhry for respondents Nos. 1 and 2.
\n    Haris Chandra (N. C. Sen, with him) for respondents Nos.
\n3 to 7.\n<\/p>\n
    1951.  February 9.\tThe judgment of the Court was deliv-
\nered by
\n    MUKHERJEA J. –This appeal is on behalf of the plaintiff
\nand  it arises out of a suit for specific performance  of  a
\ncontract  to sell a house in the town of Gaya, belonging  to
\nthe  defendants second party who, it is alleged,  agreed  to
\nsell  the  house to the plaintiff but  subsequently  resiled
\nfrom the agreement and sold the same to the defendants first
\nparty who purchased it with notice of the contract.
\n    The\t plaintiff’s case, in substance, iS that in  Septem-
\nber, 1941, the defendants second party, who owned a house at
\nGaya,  entered into negotiations for sale of the same,\twith
\none  Jadu  Ram,\t and the title deeds of\t the  property\twere
\nactually  handed  over\tto the\tlatter.\t These\tnegotiations
\nfailed and the second party defendants thereupon  approached
\nthe  plaintiff firm and a contract was entered into  by\t and
\nbetween\t them  sometime towards the end\t of  October,  1945,
\nunder  which the former agreed to sell to the  latter  their
\nhouse at Gaya for a consideration of Rs. 34,000. Out of this
\nconsideration, a sum of Rs. 30,000 was paid by the plaintiff
\nfirm on behalf of the vendors to a creditor of the latter on
\n28th October, 1941. The vendors in their turn put the plain-
\ntiff  in possession of the house agreed to be sold  in\tpart
\nperformance  of the contract and promised to execute a\tcon-
\nveyance as soon as the title deeds were returned to them  by
\nJadu Ram and the balance of consideration money amounting to
\nRs.  4,000 was paid by the plaintiff. The second  party\t de-
\nfendants,  however, went back on their promise and  did\t not
\nexecute the conveyance in favour of the plaintiff even after
\nthey  got back their title deeds from Jadu Ram; and  on\t the
\nother hand, they sold the house to the defendants first
\n279<\/span>
\nparty on August 13, 1943. The plaintiff was thus obliged  to
\nbring  this suit, claiming specific performance of the\tcon-
\ntract of sale.\n<\/p>\n
    The\t suit was contested by both sets of defendants.\t The
\nsecond\tparty  defendants contended inter alia\tthat\tthey
\nnever agreed to sell their house at Gaya to the
\nplaintiff, and the story of a contract of sale as set up  by
\nthe  plaintiff was entirely false. They admitted  that\tthey
\nwere in need of money and hence approached the plaintiff for
\na  loan and the plaintiff did advance to them a sum  of\t Rs.
\n30,000\tcarrying interest at 6% per annum.  It was  entirely
\nfor  facilitating payment of interest due on this  loan\t and
\nnot  in\t part performance of the contract of sale  that\t the
\nplaintiff was put in possession of the same.
\n    This   defence  was reiterated by the first\t party.\t de-
\nfendants  who further pleaded that they were bona fide\tpur-
\nchasers\t for value having no notice of any contract of\tsale
\nwith the plaintiff.\n<\/p>\n
    The\t Subordinate Judge, who heard the suit, came to\t the
\nconclusion, on the evidence adduced by the parties, that the
\nstory  of a contract of sale, as alleged  by the  plaintiff,
\nwas not established and it was not in pursuance of any\tsuch
\ncontract  that\tthe plaintiff was put in possession  of\t the
\nhouse.\tIt was held that the defendants’ story was true\t and
\nthat the  plaintiff  did advance a sum of Rs. 30,000 to\t the
\ndefendants  second party, but this was by way of a loan\t and
\nnot  as part payment of the consideration money. So  far  as
\nthe first party defendants were concerned, it was held\tthat
\nthey Were bona fide  purchasers for value without notice. In
\nview of these findings, the Subordinate Judge dismissed\t the
\nplaintiff’s claim for specific performance but as the second
\nparty defendants admitted that they had taken an advance  of
\nRs.  30,000 from the plaintiff, a money decree was given  to
\nthe  plaintiff\tfor this sum against these  defendants\twith
\ninterest  at  6% per annum from the date of  the  suit\ttill
\nrealisation.\n<\/p>\n
    Against  this decision, the plaintiff took an appeal  to
\nthe High Court at Patna, and the second party
\n280<\/span>
\ndefendants  also  filed\t cross-objections  challenging\t the
\npropriety of the money decree that was passed against  them.
\nThe  appeal was heard by a Division Bench of the Patna\tHigh
\nCourt  who,  by their judgment dated August 29,\t 1947,\tdis-
\nmissed\tthe appeal of the plaintiff and allowed\t the  cross-
\nobjections  preferred  by the second party  defendants.\t The
\nlearned\t Judges held, concurring with the trial court,\tthat
\nno case of concluded contract between the parties was estab-
\nlished by the evidence adduced in the case, and the fact  of
\nthe plaintiff being put in possession of the house could not
\nbe  regarded as an act of part performance of any such\tcon-
\ntract. The High Court agreed with the trial judge in holding
\nthat  the  sum of Rs. 30,000 was advanced as a loan  by\t the
\nplaintiff  to the second party defendants, though  the\tevi-
\ndence was not very clear regarding payment of interest\tupon
\nit, and that the first party defendants were purchasers\t for
\nvalue without notice.  The High Court held further that even
\nif  there was a contract, its terms were vague\tand  indefi-
\nnite,  and as one of the vendors was a minor, no  relief  in
\nequity\tby  way\t of specific performance  of   the  contract
\nshould\t be  given in this case as  it\twould  substantially
\nprejudice the interest of the minor.  In the opinion of\t the
\nHigh  Court,  the money decree granted\tagainst\t the  second
\nparty  defendants was not warranted in law as no case  of  a
\nloan  was made by the plaintiff in the plaint and no  relief
\nwas claimed on that basis.  The result was that the suit was
\ndismissed  in  its entirety and the decree for\trecovery  of
\nmoney that was made in favour of the plaintiff by the  trial
\ncourt  was set aside.  It is against this judgment that\t the
\nplaintiff has come up on appeal to this court.
\n    The learned counsel appearing for the appellant contends
\nbefore\tus  that the findings upon which  the  courts  below
\ndisbelieved  the  story of the plaintiff and  dismissed\t the
\nclaim  for specific performance are not proper\tfindings  of
\nfact which could be legitimately inferred from the  evidence
\nadduced in’ this case.\tIn the alternative it is argued that
\nthe  High  Court was wrong in setting aside the\t decree\t for
\nmoney which was given
\n281<\/span>
\nagainst the second party defendants by the trial judge.
\n    The first contention put forward by the learned  counsel
\nappears\t to us to be plainly unsustainable. When the  courts
\nbelow  have given concurrent findings on pure  questions  of
\nfact,  this court would not ordinarily interfere with  these
\nfindings  and review the evidence for the third time  unless
\nthere  are  exceptional circumstances  justifying  departure
\nfrom  this normal practice. The position may undoubtedly  be
\ndifferent if the inference is one of law from facts admitted
\nand  proved or where the finding of fact is  materially\t af-
\nfected\tby violation of any rule of law or  procedure.\t The
\npractice adopted by this court is similar to what has always
\nbeen  acted  upon by the Judicial Committee.  To  quote\t the
\nwords  of Lord Thankerton in Bibhabati v.  Ramendra  Narayan
\n(1)  “it  is  not by any means\ta  cast\t  iron\t practice”;
\nthere\tmay  occur  cases of unusual  nature   which   might
\nconstrain  us to interfere with the concurrent\tfindings  of
\nfact  to  avoid miscarriage of justice. The case  before  us
\nhowever,  has  nothing\tunusual in it and  involves  a\tpure
\nquestion of fact.  There is no document in writing in  proof
\nof  the agreement upon which the plaintiff’s case  is  based
\nand  the decision hinges primarily upon appreciation of\t the
\noral  evidence\tthat has been adduced by the  parties.\t The
\ntrial judge, who had the witnesses before him, was the\tbest
\nperson\tto  weigh  and appraise their  credibility  and\t the
\nconclusions which he arrived at, have been affirmed in their
\nentirety  by  the High Court on appeal.\t  In  these  circum-
\nstances, we see no reason whatsoever to go beyond the  facts
\nwhich  have  been found against the appellant  by  both\t the
\ncourts below.\n<\/p>\n
    As\tregards\t the  other point, however, we\tare  of\t the
\nopinion\t that the decision of the trial court was right\t and
\nthat the High Court took an undoubtedly rigid and  technical
\nview in reversing this part of the decree of the Subordinate
\nJudge.\t It is true that it was no part of  the\t plaintiff’s
\ncase as made in the plaint that
\n282<\/span>
\nthe  sum  of Rs. 30,000 was advanced by way of loan  to\t the
\ndefendants  second party.  But it was certainly open to\t the
\nplaintiff  to  make an alternative case to that\t effect\t and
\nmake a prayer in the alternative for a decree for money even
\nif the allegations of the money being paid in pursuance of a
\ncontract of sale could not be established by evidence.\t The
\nfact  that such a prayer would have been  inconsistent\twith
\nthe  other prayer is not  really material.  A plaintiff\t may
\nrely upon different rights alternatively and there is  noth-
\ning  in\t the Civil Procedure Code to prevent  a\t party\tfrom
\nmaking\ttwo  or more inconsistent sets\tof  allegations\t and
\nclaiming  relief thereunder in the alternative.\t  The  ques-
\ntion,\thowever, arises whether, in the absence of any\tsuch
\nalternative  case in the plaint it is open to the  court  to
\ngive him relief on that basis.\tThe rule undoubtedly is that
\nthe court cannot grant relief to the plaintiff on a case for
\nwhich there was no foundation in the pleadings and which the
\nother  side  was not called upon or had\t an  opportunity  to
\nmeet.\tBut when the alternative case, which  the  plaintiff
\ncould  have made, was not only admitted by the defendant  in
\nhis  written statement but was expressly put forward  as  an
\nanswer\tto the claim which the plaintiff made in  the  suit,
\nthere  would be nothing improper in giving the\tplaintiff  a
\ndecree\tupon the case which the defendant himself makes.   A
\ndemand\tof the plaintiff based on the defendant’s  own\tplea
\ncannot possibly be regarded with surprise by the latter\t and
\nno question of adducing evidence on these facts would  arise
\nwhen  they were expressly admitted by the defendant  in\t his
\npleadings.   In such circumstances, when no  injustice\t can
\npossibly  result to the defendant, it may not be  proper  to
\ndrive the plaintiff to a separate suit.\t As an\tillustration
\nof  this principle, reference may be made to the  pronounce-
\nment of the Judicial Committee in Babu Raja Mohan Manucha v.
\nBabu Manzoor (1).  This appeal arose out of a suit commenced
\nby  the plaintiff appellant to enforce a mortgage  security.
\nThe  plea of the defendant was that the mortgage  was  void.
\nThis
\n(1) 70 I.A. 1.\n<\/p>\n
283<\/span><\/p>\n
plea  was given effect to by both the lower ‘courts as\twell
\nas by the Privy Council. But the Privy Council held that  it
\nwas open in such circumstances to the plaintiff to repudiate
\nthe transaction altogether and claim a relief outside it  in
\nthe  form  of restitution under section 65  ‘of\t the  Indian
\nContract Act. Although no such alternative claim was made in
\nthe plaint, the Privy Council allowed it to be advanced\t and
\ngave a decree on the ground that the respondent could not be
\n prejudiced by such a claim at all and the matter ought\t not
\nto  be\tleft to a separate suit. It may be noted  that\tthis
\nrelief\twas allowed to the appellant even though the  appeal
\nwas heard ex parte in the absence of the respondent.
\n   Mr. Harish Chandra appearing for the second party defend-
\nants raised the question of interest in connection with\t the
\nplaintiff’s claim for a money decree. His contention is that
\nthe  plaintiff could not claim any interest so long  has  he
\nwas  in possession of the house and he could not also  claim
\nany interest after that, as his clients made a tender of the
\nsum of Rs. 30,000 by sending a hundi for that amount to\t the
\nplaintiff  by  registered post on July 12, 1943,  which\t the
\nplaintiff  refused to accept. The first part of the  conten-
\ntion is undoubtedly correct and is not disputed on behalf of
\nof the plaintiff. We feel difficulty, however, in  accepting
\nthe  second  part  of the contention raised  by\t Mr.  Harish
\nChandra. The receipt of this hundi was totally denied by the
\nplaintiff both in the plaint as well as in the evidence\t and
\nit is doubtful whether even if the story was true, it  could
\nconstitute a valid tender in law. The defendants undoubtedly
\nhad  the use of this money all this time and in our  opinion
\nthe  plaintiff\tis entitled to some  interest.\tThe  learned
\ncounsel\t appearing  for both the parties,  at the  close  of
\ntheir arguments, left this question of interest to be deter-
\nmined  by us and we think that it would be quite fair if  we
\nallow  interest on the sum of Rs. 30,000 at the rate  of  4%
\nper  annum  from  the beginning of September,  1943.  It  is
\nadmitted that the plaintiff’s possession of the house ceased
\nby the end of August, 1943.\n<\/p>\n
284<\/span><\/p>\n
  The result is that we allow the appeal in part; the decree
\nmade by the High Court is affirmed in so far as it dismissed
\nthe claim for specific performance- The plaintiff,  however,
\nwill be entitled to a money decree for the sum of Rs. 30,000
\nagainst the defendants second party with interest at 4%\t per
\nannum from the 1st of September, 1943, to the date of reali-
\nsation. Each party to this appeal will bear his own costs.\n<\/p>\n
\t\t  Appeal allowed in part.\n<\/p>\n
Agent for the appellant: R.C. Prasad.\n<\/p>\n
Agent for respondents: Tarachand Brij Mohan Lal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Srinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951 Equivalent citations: 1951 AIR 177, 1951 SCR 277 Author: B Mukherjea Bench: Mukherjea, B.K. PETITIONER: SRINIVAS RAM KUMAR Vs. RESPONDENT: MAHABIR PRASAD AND OTHERS. DATE OF JUDGMENT: 09\/02\/1951 BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. SASTRI, M. PATANJALI MAHAJAN, MEHR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127810","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSrinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/srinivas-ram-kumar-vs-mahabir-prasad-and-others-on-9-february-1951\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Srinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951 - 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