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Petitioner: NUR HUSSAIN VS Respondent: MST. BHAGGAN
P L D 1955 Lahore 390
P L D 1955 Lahore 390
Before Kaikaus, J
NUR HUSSAIN‑Plaintiff‑--Appellant
versus
Mst. BHAGGAN‑Defendant‑--Respondent
Second Appeal No. 217 of 1954, decided on 24th January, 1955, from the decree of the Court of Abdus Samad Khan, District Judge, Jhelum, dated the 2nd March, 1954, reversing that of Mirza Bashir Ahmad, Senior Civil Judge, Jhelum, dated the 11th July, 1953.
Contract‑Benefit cinder passing to more than one person--- Contract not thereby split up and transferees not independent promises‑‑Default as to one transferee is default as to the agreement as a whole.
The plaintiff agreed to pay a certain amount of grain to defendant annually at each of the crops, Rabi and Kharif; in consideration of occupying the defendant's land, from which the defendant agreed she would not eject the plaintiff so long as he continued paying the agreed amount of grain: The defendant sold a share of the land to a third person, whereupon the plaintiff defaulted in payment of a propor tionate share of the grain to the defendant.
Held, that the default constituted a breach of the agree ment.
If the benefit and burden of a contract should, by transfer or operation of law, pass to more than one person, the con tract is not split up and such persons do not become inde pendent promisees. They together constitute a party to the contract and a default in respect of any of them is a default in relation to the agreement.
Sheikh Muhammad Shafi, for Appellant.
Ghulam Abbas Jafry, for Respondent.
JUDGMENT
KAIKAUS, J.--‑The land in dispute belonged to one Jiwan who died some time before the 14th of April 1935 leaving behind him a widow, Mst. Bhagan, in whose favour the land was mutated. Jiwan was governed by agricultural custom and Mst. Bhagan was entitled to a life estate. Jiwan had a brother Nur Hasan, the plaintiff in the present suit, and on the 14th of April 1935 Nur Hasan and Mst. Bhagan entered into an agreement, executed in two parts, with respect to the land which Mst. Bhagan had inherited from Jiwan. The first part of this agreement, which is exhibited as P. 1, is executed by Mst. Bhagan and states that land measuring about 49 kanals and some marlas, which belongs to her, would remain in the possession of Nur Hasan plaintiff as long as he went on paying 25 pies of wheat every rabi and 12 pies ‑‑of bajra every kharif. It goes on to state that as long as he was paying the produce, Nur Hasan would not be liable to ejectment. The second part of this document, which is exhibited as D. 1, is executed by Nur Hasan in favour of Mst. Kagan and states that he will go on paying 25 pies of wheat every rabi and 12 pies of bajra every kharif and that if he commits a default he will be liable to ejectment. This agreement was apparently acted upon for a long time till in 1952 Mst. Bhagan sold a share of 72 kanals and 7 marlas out of the land in dispute to one Muhammad Hayat. Mst. Bhagan then applied to the Revenue Officer for partition of the land as it was joint with Nut Hasan. At this Nur Hasan filed the present suit. The allegations in the suit were that an agreement had been executed as stated above between the parties and that as long as the plaintiff continued paying the produce, he was not liable to be ejected and, therfore, the defendant had no right to get the land partitioned. The' relief asked for was a declaration that the land was not liable to partition and that in the consequential relief the defendant should not get possession of the land by means of partition.
Mst. Bhagan admitted the execution of the document in so far as it is stated that the plaintiff would be liable to deliver certain amount of grain and that in case he did not deliver that amount, he will be liable to ejectment, but denied that he was not liable to ejectment unless he com mitted a default in respect of the agreement. She pleaded at the same time that for three harvests she had not received the grain to which she was entitled in accordance with the said agreement and, therefore, the suit of the plaintiff was liable to be dismissed.
The following issues were framed :‑
(1) Did the defendant enter into an agreement with the plaintiff that she would not take possession of her land and that instead the land would remain with the plaintiff and she would only get the produce of the land from him ?
(1‑A) Is the said agreement invalid and inadmissible in evidence for want of registration ?
(2) Has the plaintiff been securing produce to the defen dant in accordance with the said agreement ?
(3) Is not the defendant entitled to get the land parti tioned ? .
(4) Relief.
The trial Court found all issues in favour of plaintiff and decreed the suit. On appeal the learned District Judge came to the conclusion (1) that Mst. Bhagan had : coerced to enter into the agreement, (2) that the term in the deed which said that the plaintiff would not be liable to ejectment unless he made default had been inserted without the know ledge of Mst. Bhagan and, as it existed only in the document which had been executed by the other party. Mst. Bhagan was not bound by it, and (3) that as default had been made by the plaintiff ill respect of the delivery of grain in accordance with the agreement, the suit was liable to be dismissed. On these grounds the learned District judge set aside the judgment of the lower Court and dismissed the suit.
With respect to the first ground on which the learned District judge has proceeded, it is urged by learned counsel that there was no plea, no issue and no evidence. I agree. The learned District Judge could not have gone into the question at all which had never been pleaded and there is no doubt that there is no evidence on the record. The learned District Judge, it seems, was influenced by the fact that Mst. Bhagan was a widow and was the brother's wife of the plaintiff.
As regards the second ground, the learned District judge is under a misapprehension. He says Mst. Bhagan is not bound by the alleged condition because it is contained in the deed executed by the other party. This is not correct. The condition that as long as Nur Hasan is not guilty of a default, he is not liable to ejectment, occurs in the deed executed by Mst. Bhagan. The execution, of these deeds by the parties is admitted and there is nothing at all on the record to show that there was any insertion of any words without the know ledge of Mst. Bhagan. This ground too fails.
The third ground on which the learned District judge decided the case, has, however, force. The position of the defendant in this case is that he had never refused to deliver the grain in respect of 37 kanals of which Mst. Bhagan was yet the owner. He says Mst. Bhagan claimed the whole of the grain which he agreed to give in accordance with the agreement. The learned District judge's finding, as will appear from his judgment, relates only to the non‑payment of wheat with respect of 12 kanals which had been sold to Muhammad Hayat, because there is, in his judgment, no discussion as to whether the plaintiff had tendered the proportionate wheat and bajra for 37 kanals which he alleged he did. Before me learned counsel for the respondent has placed a copy of a compromise decree which was passed in a suit by Mst. Bhagan against Nut Hasan plaintiff in respect of rent and has argued that as a matter of fact with respect to the whole of the land for three harvests preceding the suit default had been com mitted. I have not found it necessary to decide the question whether this contention of the learned counsel for the res pondent is correct because I am of the opinion that even if default is committed with respect to 12 kanals the plaintiff's suit should be dismissd.
Learned counsel for the appellant urges that as Mst. Bhagan had sold 12 kanals, she was not entitled to the delivery of the full amount of grain provided in the agreement and was only entitled to a proportionate share, for the plaintiff was bound to deliver a proportionate share to Muhammad Hayat, the vendee of 12 kanals. He goes on to contend that the fact that he had not delivered any grain to Muhammad Hayat cannot be made a ground for entering into possession of 37 kanals by Mst. Bhagan. I am of the opinion that this is not the correct view to take. The agreement was one and indivisible. There were two parties to the agreement, Nur Hasan and Mst. Bhagan, and all that has happened is that on account of a transfer of a share in the land, one of the parties, i.e., Mst. Bhagan, is now represented by two persons, i.e., Mst. Bhagan and Muhammad Hayat who now together constitute the "promisee". If the plaintiff does not deliver the whole of the grain which he is bound to deliver under the agreement, to such person as may be entitled to receive it, it is obvious that he commits a default in respect of the agreement. If the benefit anal burden of a contract should, by transfer or operation of law, pass to more than one person, the contract is not split up and such persons do not become A independent promises. They together constitute a party to the contract and a default in respect of any of them is a default in relation to the agreement. A simple way of looking at the matter is this. If Mst. Bhagan had not transferred any part of the land to Muhammad Hayat, the plaintiff could not have offered to her a portion only of the grain which he was bound to deliver and pleaded that in respect of the portion he delivered he was entitled to retain a proportionate share of the land. Even if the smallest part of the grain was withheld, there would be a default in respect of the agreement and the condition which protects him from ejectment would cease to operate. The position of the plaintiff does not improve because of the transfer. He cannot urge that because of the transfer he can now with partial immunity withhold a portion of the rent. I may point out, though the fact is not essential for decision, that Mst. Bhagan had transferred to Muhammad Hayat not specific fields but only a share out of her land so that he was only a co‑sharer with her.
This appeal fails and is dismissed with costs.
A. H. Appeal dismissed.