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Bishennath and anr. Vs. Pearey Ju and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.542
AppellantBishennath and anr.
RespondentPearey Ju and ors.
Excerpt:
.....to section 13 of the act to recover the amount due to them in any manner other than that laid down in the ant. that was a case of a mortgage, and this court held distinctly that the mortgage was void and could not be enforced. it is urged that this clearly shows that the defendants could borrow money from the persons during the period of their disability and that there was nothing illegal in their doing so. as it is, the plaintiffs are now seeking to enforce a right which under section 13 the law distinctly says they shall not have.1. this is a plaintiffs' appeal arising oat of a suit in which they seek to recover a simple money-decree on a bond, dated the 19th of january 1907. the courts below dismissed the plaintiffs' claim, on the ground that the consideration of the agreement was one which was forbidden by law and also that it was of sash a nature that if permitted, it would defeat the provisions of the bundelkhand encumbered estates act i of 1903. the defendants to the suit were persons who same under that act. they were in debt and took refuge under the ant and were declared disabled proprietors. the plaintiffs were the sole creditors. the matter went before the special judge under the act and the special judge made an award. it is an admitted fact that while the defendants were still under their disability,.....
Judgment:

1. This is a plaintiffs' appeal arising oat of a suit in which they seek to recover a simple money-decree on a bond, dated the 19th of January 1907. The Courts below dismissed the plaintiffs' claim, on the ground that the consideration of the agreement was one which was forbidden by law and also that it was of sash a nature that if permitted, it would defeat the provisions of the Bundelkhand Encumbered Estates Act I of 1903. The defendants to the suit were persons who same under that Act. They were in debt and took refuge under the Ant and were declared disabled proprietors. The plaintiffs were the sole creditors. The matter went before the Special Judge under the Act and the Special Judge made an award. It is an admitted fact that while the defendants were still under their disability, the present bond was executed by them in favour of the plaintiffs. It is an instalment bond, under which the defendants agree to pay off the amount of the award in a fixed term of years. It appears that there was some land which was in the joint cultivation of the creditors and the debtors, in which the latter held a half share. In order to enable the creditors to recover the annual instalments the defendants agreed that their share of the produce of this land should be taken each year by the creditors. After this agreement had been entered into, the Commissioner for some reason, but apparently under no section of the Act, declared the defendants freed from their disability. The Act itself lays down certain methods by which the amount of the Special Judge's award should be recovered. They are to be found set out chiefly in Section 21 of the Act. Section 13 of the Act in its explanation says clearly that the effect of the determination by the Special Judge is to extinguish the previously existing right together with all rights of mortgage or lien by whish the same is secured, and where any amount is determined to be due to him, to substitute for those rights a right to recover that amount in the manner and to the extent hereinafter prescribed, and not otherwise.' Therefore, after the decision of the Special Judge the present plaintiffs lost all their right to recover the amount of the award otherwise than in the manner laid down by the law. Now it is admitted that the plaintiffs did not recover the amount due to them in the manner laid down in the Act, They say: 'We recovered the amount in a way not laid down by the Act but in a manner in which it was open to the defendants to satisfy our claim, that is, by giving us the simple money bond,' We may point out that the case has been argued in two respects.

2. Firstly, that the document is a simple money bond, and secondly, in the aspect that it constitutes a mortgage. As regards the mortgage, the argument, of course, is of no force whatsoever, for the simple reason that the law distinctly lays down in Section 10(2)(a) that the proprietor shall be incompetent to exchange, give, or without the consent of the Commissioner, sell, mortgage or lease his proprietary rights in the land or any part thereof. It is admitted before us that the consent of the Commissioner was never obtained to this transaction. An attempt has been made to persuade us to hold that the Commissioner's subsequent order freeing the defendants from the disability under the Act was really a consent to the mortgage, but nobody who has read that order can hold that opinion for a single instant. The Commissioner at no time consented to any mortgage and if the present transaction was a mortgage, it was incompetent to the mortgagor to carry it through, and the transaction is one which cannot be enforced as it is forbidden by the law. Considered in its aspect of a simple money bond, it seems to us that it is equally forbidden by the law to the present plaintiffs to accept any gush bond in satisfaction of their claim. They were clearly forbidden by the explanation to Section 13 of the Act to recover the amount due to them in any manner other than that laid down in the Ant. Our attention has been sailed to the decision in Radha Bai v. Kamod Singh 30 A. 38 : 4 A.L.J. 696 : A.W.N. (1907) 276, which considered the corresponding section in the Jhansi Encumbered Estates Act in which there is an Explanation worded in exactly the same way as the Explanation in the present Act. That was a case of a mortgage, and this Court held distinctly that the mortgage was void and could not be enforced. It was also pleaded there that a simple money decree might be passed against the defendants. The learned Judges' who decided that case in respect to this plea said: 'This plea might have prevailed had the claim for a money-decree not been barred by the law of limitation.' They held: 'assuming that the plaintiff was entitled to a simple money-decree he could not obtain it by his suit owing to the bar of limitation,' We are asked to translate this expression as if the learned Judges had said that this plea 'would' have prevailed had the claim for the money-decree, not been barred by the Law of Limitation. It is obvious that the learned Judges who decided that case did not go into the point as to whether or not the money-decree could be passed, Assuming that it could, they held the suit was barred by limitation. The decision is, therefore, not one in favour of the present appellant. Attention has been called to Section 29 of the Act, which lays down that the money-decree on account of private debts incurred within the period of disability was not capable of execution at any time against any land owned by the proprietor during that period, whether by way of attachment or sale. It is urged that this clearly shows that the defendants could borrow money from the persons during the period of their disability and that there was nothing illegal in their doing so. This may be correct. We do not for a moment say that it is wrong, but it does not mean that the plaintiffs could have claimed satisfaction of their claim under the award by taking a bond from the defendants, If we look at the matter entirely apart from technicalities, it is quite clear that the present suit is simply a suit to enable the plaintiffs to recover the amount which was awarded to them by the Special Judge. The method which they have adopted is an attempt to get round the law and nothing more, If they had wished to carry out the mortgage, they ought to have gone to the Commissioner with their proposal and obtained his sanction and then the matter could have been carried through. As it is, the plaintiffs are now seeking to enforce a right which under Section 13 the law distinctly says they shall not have. Consideration for the bond, therefore, was forbidden by the law or at least it is of such a nature that if allowed, it would defeat the provisions of the law. The whole transaction is, therefore, void, it cannot be enforced and the decision of the Courts below is correct. the appeal fails and is dismissed with costs.


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