Judgement

Consolidated Appeal and Cross-Appeal (No. 24 of 1930) from a decree of the Chief Court (May 2, 1928) which modified a decree of a single judge of that Court (November 28, 1927).

The dispute related to an estate of which a mahant had been recorded as the taluqdar under the Oudh Taluqdari Estates Act, 1869. Upon the death intestate of a succeeding mahant, disputes between claimants were settled by an agreement of January 20, 1922, under which Mahant Har Narain Das (plaintiff) was to succeed for his life, and upon his death Satgur Prasad, alias Hari Saran Das (defendant No. 1). On November 25, 1924, the plaintiff executed a deed by which he surrendered his life interest to defendant No. 1 on condition that the latter paid him Rs.1000 a month; a monthly allowance of Rs.100 was to be made also to defendant No. 3 and of Rs.50 to his wife. In pursuance of this deed defendant No. 1 took possession of the estate.

The plaintiff brought the present suit in the Chief Court on February 21, 1927, claiming a declaration that the deed of November 25, 1924, was void on the ground that it had been procured by fraud and undue influence, and that defendant No. 1 was entitled to no benefit under it, a decree for possession and mesne profits, estimated at 5 lakhs, was prayed for.

The trial judge (Pullan J.) set aside the deed and made a decree for possession and for mesne profits to be assessed in execution proceedings.

Upon an appeal by defendant No. 1 only, the decree was affirmed by Stuart C.J. and Wazir Hasan J., subject to a modification on a point not material to this report. Mesne profits were decreed only from the date of the suit, on the ground that the deed was voidable at the option of the plaintiff, and that he had not exercised his option till he sued.

Both Courts found that the deed was procured by fraud and undue influence, and that defendants Nos. 1 and 3 had been in a fiduciary relation to the plaintiff, and had taken advantage of that relation to procure the deed.

1931. Nov. 27, 30; Dec. 1. Upjohn K.C., De Gruyther K.C. and Jopling for the defendant No.1. There was no evidence that the deed was induced by fraud or undue influence; the Courts misapplied the law applicable Raghunath Prasad v. Sarju Prasad.(( 1923) L. R. 51 I. A. 101.) The rule with regard to concurrent findings does not apply Harendra Lal Roy v. Hari Dasi Debi.(( 1914) L. R. 41 I. A. 110, 119.)

Dunne K.C, Dube K.C, Wallach and Sir Tej Bahadur Sapru for the plaintiff—not being called upon in the first appeal. Upon the cross-appeal the plaintiff is entitled to mesne profits from the date when possession was taken under the deed. If the possession is to be regarded as under a contract, the plaintiff was so entitled by the Indian Contract Act, 1872, s. 65. If the possession should be regarded as under a conveyance, mesne profits were payable on the same basis under the Specific Relief Act, 1877, s. 35. [Reference was made to Erlanger v. New Sombrero Phosphate Co. (( 1878) 3 App. Cas. 1218, 1278.)]

Upjohn K.C to the cross-appeal. By s.2, sub-s.12, of the Code of Civil Procedure mesne profits are recoverable only for the period of wrongful possession. Under s. 19 of the Contract Act, the contract was voidable; it became void only when the plaintiff by bringing his suit elected to avoid it Clough v. London and North Western Ry. Co. (( 1871) L. R. 7 Ex. 26.); United Shoe Machinery Co. v. Brunet ([ 1909] A. C. 330, 339.) ; Elliott v. Boynton.([ 1924] 1 Ch. 236.) The cross-appeal seeks both to affirm and disaffirm the transaction. Sect. 65 of the Contract Act applies only where an agreement is found to have been void ab initio, or "becomes void" by impossibility of performance.

[SIR DINSHAH MULLA. Having regard to the finding of fiduciary relation, do not ss. 86, 88 and 80 of the Trusts Act apply?]

The plaintiff did not claim on that basis. Further, the sections do not apply. The principle embodied relates to transactions which are void unless ratified, not to this