Biswabkusan v. The State of ·

Where t~e plaintiff confines his claim to account for a period up to a .c~rta1n date only, he relinquishes his claim subsequent period becausC not exphc1tly to the account lays down Order H, rule 2(3) of if a p~r~on omits, except with the leave of the Court, to. sue for all rehets to which he is entitled, he shall not afterwards. sue for any reliefs so omitted. the Code of Civil Procedure implicitly C1v1L APPELLATE JuR1so1cnoN : Civil Appeal No. ; 113 of 1953. Appeal from the Judgment and Decree, dated the 25th day of March, 1952, of the High Court of Judicature at Bombay (Bavdekar and Dixit JJ.) in Appeal No. 554 of 1951, from Original Decree arising out of the Judgment and Decree, dated the 30th day of June,. 1951, of the Court of the Joint Civil Judge, Senior Division of Thana, in Special Suit No. 12 of 1949. K. S. Krishnaswamy Iyengar, (!. B. Dadachanji, V. B. Rege and Ganpat Rai, with him) for the appellants. S. B. fathar, R. B. Kotwal and Naunit Lal for res-· pondent No. 1.

#1954. April 12. The Judgment of the Court was' delivered by GHULAM HASAN ].-This appeal is brought by leave the judgment and of the High Court of Bombay against decree of a Division Bench of (Bavdekar and Dixit JJ.) dated March 25, 1952, modifying the· judgment and decree of the Civil Judge, Senior Divi sion of Thana, dated June 30, 1951. that Court The appeal arises out of a partition between 6 brothers of a joint Hindu family. The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motor-bus service and also money lending under the name of "Sontakke Brothers". The· family also possessed immovable and movable property. Balkrishna Sitaram Sontakke is the ·eldest of the bro thers and in the present the plaintiff appeal. He will be referred t? hereafter as the plaintiff. the brothers. income from to 1944 were living and messing together and the It is common ground that up respondent l.. >- I 1954 Shankar Sitaram Sontakke and Another v. Balkrishna Sitaram Sontakke and Others. Ghulam Hasan J. , - S.C.R. SUPREME COURT REPORTS 101 them separately that the parties nad agreed the situation changed and through Court for examining the plaintiff. the family business used to be kept with From April 14, 1945, the proceeds of the various parties began to appropriate businesses carried on by to themselves. The plaintiff was running the liquor shops, defendants Nos. 1 and 2 who are the appellants, were carrying on the motor-bus service business while defendant No. 4 was running the grocery shop. The parties tried to have parti tion effected between them through. arbitrators but the attempt failed. On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the busi It was nesses. The suit was numbered 39 of 1945. compromised on March 7, 1946. By this compromise it was declared that prior to 1942 all the accounts of various businesses had been correctly maintained and to have arbitrators shown, the accd'unts appointed from 1942 up to March 31, 1946, and for determining the amount due up to that date. Each of the brothers was to get one-sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators. All the movable property of the joint family family including the stock-in-trade of all businesses was brothers. The compromise plaintiff was to have one-sixth share in the motor garage the price of and that defendants 1 and 2 were the material provi one-sixth share the brothers was a sions of the compromise. One of minor and the Court finding to be for the benefit of the minor accepted it and passed a pre liminary decree terms of the compromise on July If nothing else had happened to disturb the 25, 1947. natural course of events, the proceedings would have ended in a final decree for partition. The plaintiff, how ever, commenced a fresh suit on February 23, 1949, confining his relief to his share of the profits and assets of the motor business carried on by defendants Nos. 1 and 2 after March 31, 1946. His case was that the com promise .was made in a hurry, that the parties omitted to provide in the compromise about the future conduct to be divided equally among all further declared that to him. These are the compromise to pay 1954 Shankar Sitaram Sontttkke and Anothir v; Balkrishna Sitaram Sontakke and Others. Chulam Hasan J~ 102 SUPREME COURT REPORTS [1955] the motor . business from April 1, 1946, motor business that he had a right to ask subsequent to March 31, 1946. that the ·was still a joint family business and for accounts of that business 111 taken up these findings to April 14, 1945, the issues framed in 'the ·case that account of all In defence it was pleaded that the compromise was made after due deliberation, that accounts of the motor business and grocery shop should actually have been taken up the date of disruption of the joint family status, ·but the parties agreed by way of .compromise family businesses should be to March 31, 1946. It was also the claim was barred by res judicata. pleaded the Civil Judge Upon the suit was not barred by reason of the found that decision in the previous suit No. 39 of 1945, that the that suit was not obtained by fraud and decision m misi;.epresentation and that compromise to a mistake or misunder previous suit was ncit due standing. Despite the Civil Judge held the motor business carried on after the that although partition had ceased to be a joint family business yet as it was carried on by some members of a family position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying section 37 of the Partnership Act he held tha·t the "two brothers carrying on the _motor bu.siness to account. Accordingly he passed a pre were liable the accounts of the motor liminary decree directing business to be taken from March 31, 1946, up to date on which a final decree for payment of the amount found to be due would be made. A Commissioner was appointed to take the accounts the profits earned by the use of the capital belonging to ·the shares of brothers other than those who carried on the motor business. J. agreed modified the decree of the trial Court by direct ing that the accounts were taken up to' the date when the businesses discontinued and not up to . the date of the final decree. In appeal Bavdekar J. with whom Dixit to ascertain to be The learned · Judges held that the cause of action for the present suit was different from the cause of action that the suit was not barred in the previous suit and - .... J 1954 Shankar Sitaram Sontakke and Another v. Bolkrishna Sitaram Sontakkt and Others. Ghu/am Hasan J. ) S.C.R. SUPREME COURT REPORTS 103 they held that expressly negative by res judicata or by Order II, rule 2, of the Code of Civil Procedure. After delivering themselves of some conflicting observations to which reference will in detail be made hereafter the consent decree the right for accounts of the motor transport business. Finally the learned fudges recorded regardless of the plead ings in the case the defendants Nos. l and 2 had made use of the joint family property and that they stood in the position of co-owners and as contemplated in sec tion 90 of the Indian Trusts Act were liable to render accounts for the profits which were attributable to employment of the assets owned by the parties jointly. the conclusion Learned counsel for the appellants has contested the view of the High Court upon all the points decided against them. He has contended the cause of action in a suit for partition is the desire and intention that the cause of action in the of the family to separate, two suits is identically the same and not separate and distinct and that the suit was, therefore, barred both by the principle of res judicata and by Order II, rule 2, the Civil Procedure Code. Learned counsel also challenged the view of the High Court about the appli cability of section 90 of the Indian Trusts Act. legitimate to confine then existing, It seems to us that upon a fair reading of the com in the circums promise arrived at between the parties conclusion the only tances possible is that the parties had agreed taking of all accounts upto March 31, 1946, and had clos ed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresent ation, mistake or misunderstanding as held by the trial Court-a finding which was not interfered with by High Court-it follows that a matter once concluded between the parties who were dealing with each other at arms length to March the parties to confine the period of account 31, 1946, and stop further accounting which would have the final decree normally extended to the following circumstances. The will appear from the licence for the liquor shops plaintiff knew reopened. What the passing of cannot now be 1954 Shankar Sitaram Sontakke and Another v. Balkrishna Sitaram Sontakke and Others. Ghu/am Hasan J, 104 SUPREME COURT REPORTS [1955] carried on by him was expiring on the 1st April, 1946, and he was anxious to run the liquor business exclusive jointly or in partnership with his brothers ly and not his brothers through pleader on December 12, 1945, stating inter alia the following :- licence. He· gave a notice the expiry of the jointly or to conduct liquor shop business "The period of (licence for) the liquor shops at the said places expires by end of March, 1946. Hence after the expiry of the said period, my dient having no desire partnership with any of you again, he intends to run and will run as from the date 1sr April, 1946, one or more liquor shops as he pleases belonging to him alone that will be required for independently. The moneys (purchase in) auction of the shops will be paid by my client by borrowing the same from third parties on his own responsibility and my client will not allovv the said moneys to have the least connection with the businesses, properties and cash which are at present in dispute Court and with the profits and income from the said informs businesses or properties. My client expressly you by this notice of the fact, viz., that the liquor shops thus purchased by him will solely belong to him and will be run by him independently of any of you. None of you will have any legal right to meddle with or inter fere in the liquor shops which will be thus purchased by my client the Government auction for the new year beginning from 1st April, 1946, and if any of you to cause make an attempt with malicious interference in the said business of even the slighest my client, then my client will hold you fully responsi ble for any harm suffered by him and for other damages and expenses incurred by hini and will take a severe legal action against you therefor." intention This notice furnishes a true guide as to the intention of the plaintiff which was none other than that he should run the liquor shops exclusively . for himself and appro thereof without making himself priate accountable the plaintiff says that he intended to· pay for the auction of liquor shops by borrowing he was really in a position of van tage for he admittedly had Rs. 13,000 cash in hand as to · his brothers. Although the profits - -!.. I 1954 Shankar Sitaram Sontakk• and Anoth<r v. Balkrishna Sitaram Sontakk* and Oth<rs. Ghu/am Hasan], I /-.>-, .. ..... -< _j. - S.C.R. SUPREME COURT REPORTS 105 running of the the plaintiffs in against the Rs. 3,000 his brothers had. The notice the com explains the significance of the provision promise that accounts are to be taken only up to March 31, 1946. Since the plaintiff did not want his brothers liquor to interfere with his exclusive business after March 31, 1946, he perforce had to agree that he should sever his connection with other busines ses run by his brothers. This arrangement was appar fair and ently acceptable to all the brothers as being reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiff's conduct filing a fresh in going back upon that arrangement by suit in regard to the motor business only is anything in the previous suit leaves but honest. The plaint filed that suit no manner of doubt family property sought a complete division of all the both movable and immovable and a final determina tion of all the accounts in respect of the family busines ses. It is also significant that after the compromise plaintiff (Balkrishna) filed an application before Civil Judge in which he alleged that when he agreed in the compromise that the accounts of the various busi nesses should be up to the 31st March, 1946, he was under a misapprehension regarding his legal right to be much as he thought that when the accounts were taken up to a certain date, joint family property after that date would not be allowed to be utilized by some members only of the for making profits the exclusion of the plaintiff. He goes on to say that he laboured under impression that the joint family business would be either altogether stopped after the 31st March, 1946, or would be run either by the arbitrators or the Commissioners and the profits accruing therefrom would be deposited in Court for distribution among shares. The application was made on November 22, 1947. His pleader, however, stated on April 6, 1948 : "The application is abandoned by the applicant as he wishes to pursue his remedy by way of an independent suit for the grievance in the application," and the Court ·disposed of as passed the order : "The application is the parties according to themselves family l95l Shankar Sitaram Snntakke a ti:d Anothlr v .• Balkris"" Sitaram Sontakkt and Others. Ghulam Hasim J. 106 SUPREME COURT REPORTS [1955] to this application observe the High 1t 1s not presseJ." The learned Judges of thus : Court in referring "It is obvious therefrom that really speaking of the profits of several businesses after the 1st of April, 1946, was present to the minds of the parties; but the parties did not care to ask that accounts of the other businesses will be taken up after the 1st of April, 1946. One of the businesses was a liquor business, which admittedly was to come to an end on the 31st of March, 1946 ; but there was also another business ; that was a kirana shop, which was not a very big business. But all the same it was there, and there is force, therefore, in the contention which has been advanced on behalf of the appellants that it was not as if there has been an oversight on the part of the parties, but the parties knew that the businesses might go on afterwards ; but they did not particularly care if they were carried on, for providing by the compromise decree for accounts of those businesses being taken after the 1st of April, 1946." Having said all this they record the conclusion the compromise did not expressly negative to an account of motor. business. right of the plaintiff We are unable to accept this conclusion. The obser vations quoted above negative the plaintiff's case about mistake or misunderstanding in regard to the true effect of the compromise and show the plaintiff aban· cloned the right to account after the crucial date and thereafter changed into one of the status of the parties tenants in common. intended that actounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the Court, was to divide all the property by metes and bounds .and to award monies as found on examination of the accounts right up to the date of the final decree. But for the ·compromise which the plaintiff would limited the period of the account have obtained the relief he is now · seeking in the parti tion suit as accounts would have been taken of all businesses Up final decree. The to . the ·date of the plaintiff has himself to thank for preventing the natural If the plaintiff really • 1954 Shankar Sitaram Sontakke and An of her v. Balkrishna Sitaram Sontakke . and Others. Chu/am Hasan J. S.C.R. )_ SUPREME COURT REPORTS 107 course of events and for forbidding the accounts to be taken after the 31st March, 1946. The· plaintiff on the other hand has no real grievance in the matter, although the defendants Nos. 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keenness to run the liquor business is apparent from the notice refered to above was not precluded from reaping the, fruits of that business. to con- ceive that the plaintiff would have agreed to share his burden of the loss if the motor business had sustained that the compromise closed any. We hold, taking any account once for all the controversy about the motor of the including business after the 31st March, 1946, and the plaintiff is bound by the terms of the compromise and the con sent decree following upon it. family businesses It is hard therefore, The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present ·suit. thereto a consent decree is as binding upon the parties as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresenta tion, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata. It is well settled ,r, ' . ...l. " relinquished his if not explicitly, We are also of opinion that the plaintiff's claim barred by the provisions of Order II, rule 2(3), of the Code of Civil Procedure. The plaintiff by confinding his claim to account up to March 31, 1946, only, impli .claim to the for the subsequent period. Sub-rule 3 clearly account 1~ .. lays down that if a person omits, except with the leave of the Court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of from the action in the subsequent suit cause of action in the first suit. The cause of action the first suit was the desire of the plaintiff to separate family pro- from his brothers and to divide the joint ·• perty. That suit embraced the entire property with the plaintiff respect of out any reservation and was compromised, having abandoned his claim to account in :was different ""' ._ 8-86 S. C. India/59 1954 Shankar Sitaram Sontakke · and Another v. Balkrishna Sitaram · Sontakke and Otherf. Ghulam Hasan J. 108 SUPREME COURT REPORTS [1955] the motor business subsequent to Mar.ch 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relin quished. We are clear, the cause of action in the two suits being the same, the suit is barred under Order II, rule 2(3), of the Civil Procedure Code. therefore, As the suit is barred both by res judicata and Order II, rule 2(3), of the Civil Procedure Code, no further question as to the applicability of section 90 of Indian Trusts Act can possibly arise under the circums- tances'. ·· · ' · ' . The result is that ·we allow the appeal and dismiss ·-~ J the suit with costs throughout. Appeal allowed. 1954 April 14. MANILAL MOHANLAL SHAH AND OTHERS ti. SARDAR SAYED AHMED SAYED MAHAMAD AND ANOTHER. ·[MEHR CHAND MAHAJAN C.J., VIVIAN BosE and GHULAM HASAN JJ.] Civil Procedure Code (Act V of i908), Order XX!, rules 84 and 85-Provisions requiring deposit of 25 Per cent of purchase money t'mmediately after sale· and payment of balance within 15 days of the sale-Whether mandatory-Non-compliance with such provisions -Legal effect thereof on sale-Inherent powers-Whether can be exercised-Civil Procedure Code-Order 21, rule 72-Decree-holder not to bid for or purchase property without permission-This provi- sion direc~ory. . r llllii Held, that the provisions' of rules 84 and 85 of Order XX! of,-4 thC CoOe of Civil Procedure requiring the deposit of 25 per cent of the purchase · money immediately on the person being declared as a· purchaser and the payment of the balance within 15 days of the sale are mandatory and if ·these provisions are not complied with there is no sale at all. · "·.,. 4 N:oll-payme"nt of the price· .on the part of the def a lilting pur chaser 'renderS'.the Sa_le proceedings as a complete nullity . . The inhe'rent powers Of the' ·court cannot be anowed cµmve~r, the !11-a~datory provisions of ' the · ~ode and relieve the 4 ·~ to· cir purchasets of. their obligation· -to make the deposit. -