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Gurdial Mal Vs. Jauhri Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All820
AppellantGurdial Mal
RespondentJauhri Mal and ors.
Excerpt:
mortgage - agreement, for fresh consideration, between mortgagee and third person for release of property from mortgage--release not required to be in writing and registered. - .....jauhri mal and pertab singh are concerned, comes to this--that in consideration of the plaintiff's promise to release a particular property from a charge he already held on it, jauhri mai paid rs. 700 to the plaintiff. this was a new contract for a fresh consideration between persons who were not parties to the mortgage, and was not, as between the parties to the mortgage, a release which the law required to be in writing and registered. in short, it was a fresh oral agreement for a distinct and separate consideration dehors the original contract. we think that jauhri mal might have come into court as a plaintiff to enforce that agreement, and that it is equally competent for him to plead it in avoidance of the plaintiff's claim to bring muzaffarpur kaisho to sale. the principle.....
Judgment:

Straight and Tyrrell, JJ.

1. In this appeal there are only two questions before us. The first of these relates to the village of Etawa. With regard to this village, we concur with the findings of the Subordinate Judge, and approve the views expressed by him. Upon the remaining question, we are first of all of opinion that the evidence satisfactorily proves that Jauhri Mal paid the Rs. 700 to the plaintiff on the 6th March 1883, upon the faith of the plaintiff's promise that he would release the share of Muzaffarpur Kaisho from the mortgage held by him, and we entirely disbelieve the plaintiff's assertion that, though the deed was all along in his possession, he never discovered the indorsement on it till the 8th February 1883, a period of about ten years. The case, therefore, so far as the defendants Jauhri Mal and Pertab Singh are concerned, comes to this--that in consideration of the plaintiff's promise to release a particular property from a charge he already held on it, Jauhri Mai paid Rs. 700 to the plaintiff. This was a new contract for a fresh consideration between persons who were not parties to the mortgage, and was not, as between the parties to the mortgage, a release which the law required to be in writing and registered. In short, it was a fresh oral agreement for a distinct and separate consideration dehors the original contract. We think that Jauhri Mal might have come into Court as a plaintiff to enforce that agreement, and that it is equally competent for him to plead it in avoidance of the plaintiff's claim to bring Muzaffarpur Kaisho to sale. The principle enunciated in Nash v. Armstrong 30 L.J.C.P. 286 is applicable a fortiori to the present case, in which a strauger to the original contract is setting up, as a consideration for money paid by him, a promise of one of the parties not to enforce a particular covenant of such contract.

2. In this view of the case, it is not necessary for us to decide the objection taken by the learned Counsel for Pertab Singh.

3. The appeal fails, and we dismiss it with costs.


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