1878 DASSI BUTTY CHURN OTHERS. Judgment. Both Courts have dismissed the plaintiff's claim. The SuborSATYA MONI dinate Judge, with reference to the plea of minority which was urged in the Court below, observes that he cannot say that there BHUGGO- is any evidence to show that Preonath was below 18 years of age CHATTOPA when he executed the conveyance to Banee Madhub. Then, with DHYA AND reference to the question whether the consideration passed, the Subordinate Judge was of opinion that no consideration passed, and that Preonath sold the property in suit to Banee Madhub in the belief that there were creditors, and that by making this benami transfer he would save the property from the claims of those creditors. With reference to the question of notice, which is an important question in this case, the Subordinate Judge, after quoting Smith's Manual of Equity Jurisprudence, and Mr. Justice MARKBY's lectures on Indian Law, was of opinion that the plaintiff had constructive notice; and that, if he had made such enquiries as a prudent man ought to have made, he would have discovered that Bhuggobutty Churn was paying rent to Preonath and not to his vendor, Banee Madhub; and, therefore, that the transaction between Preonath and Banee Madhub was a benami transaction, and that the beneficial owner of the property was not Banee Madhub, but Preonath. The points we have to consider in this special appeal are: (1) the question of minority; (2) the question of consideration ; and (3) the question of notice. On the first question, viz., of minority, there is a clear finding, on the part of the Subordinate Judge, that there is no evidence to show that Preonath was not of full age when he executed the conveyance to Banee Madhub; and that conveyance, we may observe, is registered. We must, therefore, hold that Preonath was of age at the time of the execution of the conveyance, and that he cannot plead minority or avoid the responsibility of his own act. Then, with reference to the question of consideration, the kobala in both instances, namely, the kobala from Preonath to Banee Madhub, and the kobala from Banee Madhub to the plaintiff, are registered; and there is a recital in each of them that the consideration was paid. The plaintiff has solemnly affirmed the truth of the recital in respect of payment by himself, and his vendor Banee Madhub has acknowledged receipt of the money. The onus, therefore, of proving that no consideration passed, was on Preonath, and this onus he has failed DASSI V. BHUGGOBUTTY CHURN DHYA AND Judgment. to discharge, for he has given no rebutting evidence whatsoever. SATYA MONI Then, with reference to the question of notice, we observe that Preonath has given no proof of this transaction between him and Banee Madhub, being a mere paper transaction. So far from the CHATTOPAplaintiff having reason to suppose that the title and possession in the land remained in Preonath, the conclusion forced upon him was quite the contrary; for he saw that the kabuliat of the lessee, Bhuggobutty, was in Banee Madhub's hands, and this kabuliat Banee Madhub made over to him. Nor was his previous possession as a two-third sharer in the estate likely to assist him in this matter. The Subordinate Judge relies very much on the fact of the plaintiff being a co-sharer, representing a two-third share in the estate, to show that he must have been aware that Bhuggobutty was paying rent, not to his vendor, Banee Madhub, but to Preonath. But this is not the case, for Bhuggobutty Churn himself in his written statement admits that the rents were realized separately, and that he entered into a distinct contract of lease with Preonath in respect of his 5 annas, 6 gundas, 2 cowries, and 2 krant share. Under these circumstances, we are of opinion that the plaintiff had good reason for supposing that the conveyance by Preonath was a bona fide one, and was not bound to enquire further. We, therefore, think that on the two latter points, namely, the question of consideration and the question of notice, the decision of the Subordinate Judge was wrong in law. Accordingly, we reverse it, and decree this appeal and the plaintiff's suit with costs. 1877 [CIVIL APPELLATE JURISDICTION.] August 23. CHUNDER KANT MOOKERJEA DEFENDANT; PLAINTIFFS. Small Cause Court-Costs-Tender before action brought. A demanded Rs. 1,300 as one sum due to him from B, and B tendered Rs. 1,000 to A, saying that was all he owed him. On action brought, a decree was given to A for the Rs. 1,300, and it was held that A was entitled to full costs; he not having been under any obligation to accept the Rs. 1,000 and sue for the remaining Rs. 300 in the Small Cause Court. An offer to pay a portion of a debt in discharge of the whole is not a legal tender of part only. James vs. Vane, 29 Law Jour. Q. B., 169; Crosse vs. Seaman, 11 C. B., 524; Dixon vs. Clarke, 5 C. B., 365, discussed. APPEAL from a decree passed by Mr. Justice KENNEDY, in the Original Civil Jurisdiction of the High Court. This was a suit for Rs. 1,323-15-6, the price of goods sold and delivered to the defendant. Before the plaint was filed, plaintiffs' attorneys wrote to defendant's attorneys, demanding payment of the Rs. 1,323-15-6, to which they replied: "With reference to your letter of the 29th instant, which I referred to my client, in reply he instructs me to state that there is only due to your clients in respect of the ginger sold by them to him the sum of Rs. 1,043-5, which said amount I hereby tender to you." The plaintiffs refused to accept the amount tendered, and the defendant in his written statement (and at the hearing) submitted that "inasmuch as such tender, if accepted, would have left only Rs. 280-10-6 in dispute, the plaintiffs should have accepted the tender and sued for any further sum in the Calcutta Court of Small Causes which had jurisdiction in that behalf, and the defendant submits that, if the plaintiffs succeed at all in establishing a claim to more than the sum tendered, the defendant should have awarded to him any costs which he is put to by reason of the action being brought in this Honourable Court." J. D. Bell and Allen, for the Plaintiffs. Bonnerjee and Palit, for the Defendant. 1877-78 CHUNDER KANT MOOKERJEE v. JUDOO NATH The case came on for hearing before KENNEDY, J., who gave Judgment. plaintiff a decree for the amount which he claimed. The following is the judgment of the learned Judge on the question of costs : KENNEDY, J.: I do not think that, looking at the terms of the Small Cause Courts Acts, this is a case in which this Court should exercise its discretion. The provisions in Act XXVI of 1864, section 9, are very peculiar, and only give a right to certify that the action was a fit one to be brought in the Supreme Court, by reason of the difficulty, novelty or general importance of the case, or of some erroneous course of decisions in like cases in the Court of Small Causes. Now, I cannot say that this case is a novel one ; it is not one in which there is any difficulty, nor is it of general importance. It seemed to me a tolerably plain case on the evidence. I must, therefore, consider whether the case, cited by Mr. Bell, of James vs. Vane (29 Law Journal, Q. B., 169; governs the present case. Now that case was very much determined, as far as I can see, on the construction of rules of that Court, which are not applicable here. But COCKBURN, C.J., expressly rested his decision on this, that there was a distinction between a case where one inseparable claim was made and a case where the amount was made up of several separable items, and held that the case came under the latter class of cases. He says: "Where a plaintiff claims an amount, which is the result of one demand, and which cannot be separated, he may say to the defendant, when a smaller sum is tendered to him, I will not take less than the whole sum which I claim; but where the whole demand is made up of an aggregate of items, and the defendant comes and says I acknowledge that I owe you so much, and there is your money for you, the plaintiff is wrong if he refuses to take it, and, quoad that amount, he ought not to be allowed to keep the claim alive in its entirety for the purpose of KENNEDY, J. 1877-78 CHUNDER KANT MOOKERJEE V. JUDOO NATH Judgment. KENNEDY, J. suing the defendant upon it in the Superior Court, so as to get costs upon the higher scale." In that case one demand was for £24-8-10 and the other for £4-10-6, and the tender was £26-10-6, a sum more than sufficient to cover the larger of the two demands. In this case there was nothing of that kind. The tender was made in respect of a single claim above the amount of Rs. 1,000, and therefore I think that, according to the principle on which COCKBURN, C.J., goes, James vs. Vane is not applicable. I may also mention the case of Crosse vs. Seaman (11 C. B., 524), in which the Court of Common Pleas decided that a tender and payment into Court which reduced the claim to a sum less than £20 did not bring it within the County Courts' Act, so as to preclude the plaintiff from getting his costs. I may further observe that, in the case of Dixon vs. Clarke (5 C. B., 365), which was cited in the case of James vs. Vane (29 Law Jour., Q. B., 169), it is expressly ruled, and the principle is adopted by CockBURN, C.J., in James vs. Vane, that a tender of part of an entire debt is bad. I think, therefore, in this case that the tender of part of the claim cannot enable the defendant to throw on the plaintiff the certainty of losing his costs if he proceeds in the tribunal where he thinks he is most likely to succeed. The plaintiff will have his costs. The defendant appealed on the whole case, but the appeal was dismissed with costs. On the question of costs, the judgment of the Court (1) is as follows: GARTH, C.J. GARTH, C.J. :— As regards the last point urged upon us, which only affects the question of costs, we think that the tender of the Rs. 1043-5-0 was made in such a way that the plaintiff could not accept the sum tendered, without giving up the remainder of his claim. An offer of that kind to pay a portion of the debt in discharge of the whole, is not a legal tender of the part only; and this case therefore does not come within the principle of the authorities which have been cited to us by Mr. Bell. If the money had been tendered unconditionally, it might have been otherwise. The appeal is dismissed with costs. (1) GARTH, C.J., and MARKBY, J. |