Decided on February 28,1978



- (1.) THIS civil revision arises in the following circumstances : One Nrusingha Charan Prusti took lease of a house on the strength of Ext. 2 on 15-3-1966 on a monthly rent of Rs. 45/- from one Duryodhan Mohanty who posed himself as the landlord in respect of that house. THIS Duryodhan also received a sum of Rs. 540/- in advance from the tenant Nrusingha who is the petitioner in this civil revision. As it appears, Nrusingha subsequently realised that Duryodhan was not the real landlord in respect of the house, but it was Adwait, his full brother. So Nrusingha obtained a sale deed in the name of his wife on 29-7-1966 from Adwaita and thereafter refused payment of rent to Duryodhan. Nrusingha further filed a Money Suit No. 22 of 1968 claiming the advance of Rs. 540/- paid to Duryodhan with twelve per cent Interest as damages. THIS suit was decreed in his favour by the Munsif, Baripada on 6-12-1975 with six per cent interest as damages over the advance of Rs. 540/-. Consequently the landlord Duryodhan filed Money Appeal (No. 1/1-M of 1976) on 9-1-1976 before the Subordinate Judge, Baripada, who reversed the judgment of the Munsif on 11-3-1977 on the ground that Adwaita's title cannot be determined in the money suit and more so when he was not a party in the money suit. Further he held that there was no case of fraud as alleged by the plaintiff and that during the continuance of tenancy, a tenant, as the plaintiff admittedly was, cannot challenge the title of the landlord under the provisions of S. 116 of the Evidence Act. It is as against that judgment of the Subordinate Judge reversing the Munsif's judgment that the tenant Nrusingha has filed this civil revision. Be it stated here that Duryodhan the landlord who admittedly inducted Nrusingha into the house died during the pendency of the money appeal before the Subordinate Judge and his son Ratikanta Mohanty has been substituted on 11-1-1977 - vide order No. 22. The judgment of the Subordinate Judge reversing the Munsif's judgment and decree is dated 11-3-1977, that is, by the time Duryodhan was no more alive.
(2.) MR. Rath, the learned Counsel for the petitioner raised various points which I do not think material for the decision of this civil revision. The approach of the Courts below, particularly the Subordinate Judge is wrong and so too the grounds taken in the memorandum of revision. Admittedly the plaintiff's case was that Duryodhan by misrepresentation of facts induced him to become a tenant in respect of a house of which he was not the owner and on that misrepresentation received an advance of Rs. 540/- as per Ext. 2. His grievance substantially therefore was that Duryodhan had chested him and had received Rs. 540/- though in fact he was not the owner of the house so as to induct the plaintiff on receipt of any consideration much less Rs. 540/-. The Munsif as already said, partially decreed the suit reducing the quantum of damages claimed. The learned Subordinate Judge set aside the judgment and decree on grounds already indicated; but overlooking the fact that it was a personal liability of Duryodhan which cannot be extended to Ratikanta his son. Liability of Duryodhan, if any, ended with his death. It is not a debt which under Hindu Law will be realisable from the son under the dictum of moral obligation. If a father by misrepresentation of facts receives an amount, it will not be the pious obligation of the son to liquidate that amount so obtained by the father. Therefore, the liability of Ratikanta does not exist. Whatever relief the plaintiff had against Duryodhan under tort that ended with the death of Duryodhan and cannot subsist against his successors. In that view of the matter, I would dismiss this civil revision but in the circumstances without costs. The judgment of the Subordnate Judge is upheld but on different grounds, as already indicated. Petition dismissed.;

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