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1964 Supreme(Raj) 132
Rajasthan High Court
Shinghal, J.
Nemichand - Appellant
Versus
Harakchand - Respondents
S.B. Civil Regular Second Appeal No. 277 of 1958
Decided On : July 31, 1964
Murli Manohar Vyas for Nemichand and others Defendants Nos. 12 to 14; Hastimal Parakh for Harakchand and others Plaintiffs; H.G. Jain, for Bhaniram Defendant No. 10.
Headnote:(a) Civil P.C., O. 22, RR. 11 and 4—Joint promissors—Though liable jointly and severally yet where once plaintiff exercises options in filing suit and there is a decree he may not be allowed to avoid by pleading that promisor was also individually liable.(b) Contract Act, Sec. 32—Contingent contract—Court will not act suo moto unless contingency is pleaded and issue raised.(c) Hindu Law—Joint family—Managers (other than father) power to alienate for legal necessity—Such necessity to be proved to bind minor coparcener.
Both M and R were joint promisors by virtue of agreement Ex. P. 5 and their liability was therefore both joint and several. Their interests could not therefore be said to be joint and indivisible so far as their liability in the suit was concerned, but it has to be seen whether a change has been created, even in respect of such a liability, by virtue of the decree in the suit, and that distinction is important for, while it may be enough to decide the nature of the abatement in a suit by reference to the relief claimed therein, in the case of an appeal the decision depends upon the nature of the relief awarded by the decree. Thus if there are two joint promisors against whom a suit is raised by the promisees jointly, and not jointly and severally, and the suit is dismissed, it would not avail the appellant, in a case like the present, to take shelter under the plea that the initial liability of the defendants was both joint and several and that the same should continue to be the position even after the award of the decree dismissing the suit. This is so because once the plaintiff exercises the option of claiming as joint promisors, he cannot then contend in appeal, on the dismissal of the suit, that their liability is not only joint but also several and that he could proceed against one of the defendants on the abatement of his appeal against the other. (Para 9)
2. The Jagir of Meda was situated in the Sojat pargana of the former Jodhpur State and Sewaj was one of the villages included in that Jagir. The Thikana gave the ijara of village Sewaj to Magniram, Harlal, Ratan Khan and Noor Khan, for a period of 10 years, on Sawan Bad 1, Smt. 1984. The Ijaradars, however, assigned the ijara to Heerachand for the same period on payment of Rs. 4, 525/- per year. This Heerachand held the ijara for a period of about 5 years and then assigned it to Mishrimal defendant No. 1 and Rawat Singh defendant No. 2 for the period from Sawan Sud 1, Smt. 1989 to Asadh Sud 15, Smt. 1993 on payment of Rs. 4,525/- per year. Ex. P. 5 is the deed of assignment and is dated April 20, 1933. It was agreed in terms of that assignment that the ijara money would be payable in two instalments, every year, the first instalment of Rs. 2,525/- being payable on Mah Sud 15 and the other instalment of the balance of Rs. 2,000/- being payable on Jeth Sud 15. It was also stipulated that if the payment was not made in time, interest would be chargeable at about 6 per cent per annum. For purposes of this assignment, defendants Nos. 3 to 11 stood sureties on behalf of the said Mishrimal and Rawat Singh for the due performance of the conditions of the deed of assignment, which was duly registered. It appears that Mishrimal and Rawatsingh failed to pay the ijara money for Smts. 1989 and 1990 and a suit was brought by Heerachand against them, as well as against their sureties, and it was decreed by consent of parties on July 19, 1934. It is not in dispute between the parties that the claim under that decree was duly paid up. It so happened, however, that there was again a default in the payment of the ijara money for Smts. 1991, 1992 and 1993 and the claim in that respect amounted to Rs. 9,100/-. As Rs. 1000/- were held in deposit by Heerachand on behalf of Mishrimal and Rawatsingh, the amount due on account of the ijara came to Rs. 8,100/-. Heerachand died in the meantime. Of his three sons Nemichand defendant No. 12 was a major while Hastimal defendant No. 13 and Champalal defendant No. 14 were minors. They were liable to pay some debt to M/s Jawanmal Malaji of Bombay and defendant Nemichand therefore assigned the aforesaid debt of Rs. 8,100/- along with some other debts, to the firm of M/s Jawanmal Malaji on Bhadwa Bad 9, Smt. 1997, corresponding to August 27, 1940, by a deed of assignment (Ex.P.1). Under that title, the said firm of M/s Jawanmal Malaji instituted a suit against all the defendants on February 18, 1941 for the recovery of the sum of Rs. 1,100/, along with Rs. 400/- on account of interest, totalling to Rs. 8,500/-. It would thus appear that there were three sets of defendants in this case. Mishrimal defendant No. 1 and Rawatsingh defendant No. 2 form the first set of defendants. They were the principal debtors inasmuch as the assignment of the ijara was made in their favour on April 20, 1933 by the registered assignment deed Ex. P. 5 and it is they who were alleged to have committed the default in payment of the ijara money. The second set consisted of defendants Nos. 3 to 11 who, as has been mentioned earlier, were the sureties of the first two defendants for the assignment referred to in Ex. P. 5. The) third set of defendants consisted of Nemichand defendant No. 12, Hastimal defendant No. 13 and Champalal defendant No. 14, the three sons of Heerachand, for it were they who assigned the debt of Rs. 8,100/- to the plaintiffs on the assurance that it was payable to them by defendants Nos. 1 to 11. It is in these circumstances that the plaintiffs prayed for a decree against the defendants and also prayed that the decretal amount may be ordered to be realised from de
