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Hafiz Kifayat Ullah Khan Vs. Sri Raghunathji of Rajgopal Mandir of Ajudhia Through Mahant Bishambhar Das and After His Death Mahant Ram Das His Desciple and Legal Representative and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All24; 55Ind.Cas.230
AppellantHafiz Kifayat Ullah Khan
RespondentSri Raghunathji of Rajgopal Mandir of Ajudhia Through Mahant Bishambhar Das and After His Death Maha
Excerpt:
.....counterpart of the lease, dated the 7th of december 1907, was executed by three lessees and registered on the 9th of december, but it was not until the 18th of december that the fourth lessee (who was quite as essential a party as any of the other three) executed the lease and thereby, as we hold, made it on that day (the 18th of december) a complete and perfect document as between lessor and lessee. now the security bond was dated the 23rd of december, and though the lease did contain a provision 'that if we fail to furnish security within the time fixed, then this lease shall he deemed to be null and void,'nevertheless on the 23rd of december, the security bond was given and the possession, which bad been withheld by the lessor, was by virtue of the security (which he obtained from..........act were not complied with; the second ground that he takes is this, that there was in the lease a time limit of 15 days and that time limit had run off before the 23rd of december 1907, the day on which the security bond was executed. now this is a matter that can be disposed of very shortly. the first point that the mortgage was not duly executed and attested is sought to be proved by the appellant, who must have, known very well when the case came on before the lower court that the three attesting witnesses had a surprise in store for the plaintiff who called them. each of them said that he had been a party to a transaction of an unusual character-each of them had signed his name on the document, there being on the right band of that document a vacant space for the subsequent.....
Judgment:

1. This is an appeal by the defendant No. 5. He and the defendant No. 6 in the Court below were alleged by the plaintiff to have signed a security bond for the due performance by the defendants Nos. 1-4 of certain covenants in a lease. The defendant No. 5 is the only appellant before this Court and he seeks to escape liability on two grounds: First, whilst not denying that the signature on the document is in fast his signature, he takes, as he is entitled to do, the legal objection that that document is not in law binding on him inasmuch as the provisions of Section 59 of the Transfer of Property Act were not complied with; the second ground that he takes is this, that there was in the lease a time limit of 15 days and that time limit had run off before the 23rd of December 1907, the day on which the security bond was executed. Now this is a matter that can be disposed of very shortly. The first point that the mortgage was not duly executed and attested is sought to be proved by the appellant, who must have, known very well when the case came on before the lower Court that the three attesting witnesses had a surprise in store for the plaintiff who called them. Each of them said that he had been a party to a transaction of an unusual character-each of them had signed his name on the document, there being on the right band of that document a vacant space for the subsequent signatures of defendants Nos 5 and 6. The learned Subordinate Judge did not accept that story and we do not accept it, and we are influenced by the inherent improbability of the story, and by the admission of one of the witnesses (the fourth witness) that though he did not remember very much about the whole matter, he could not recollect that there was anything extraordinary about the execution of this document. We need hardly say we do not place entire reliance on Subadar Singh in every detail, but substantially we believe that the attesting witnesses were present when this defendant executed the document. That being so, Section 59 of the Transfer of Property Act was complied with and we decide that point against the appellant.

2. There now remains the other contention based upon the 15 days' time limit. The counterpart of the lease, dated the 7th of December 1907, was executed by three lessees and registered on the 9th of December, but it was not until the 18th of December that the fourth lessee (who was quite as essential a party as any of the other three) executed the lease and thereby, as we hold, made it on that day (the 18th of December) a complete and perfect document as between lessor and lessee. Now the security bond was dated the 23rd of December, and though the lease did contain a provision 'that if we fail to furnish security within the time fixed, then this lease shall he deemed to be null and void,' nevertheless on the 23rd of December, the security bond was given and the possession, which bad been withheld by the lessor, was by virtue of the security (which he obtained from the defendant-appellant and defendant No. 6) was delivered to the lessees. No point was raised at all by any party that the lease was not a valid document and we think that the clause as regards the 15 days was a clause capable of waiver and was in fact waived. Indeed, it might very well have been construed to have been a clause solely for the benefit of the lessor. In those circumstances we are of opinion that there was no running out of time by the 23rd of December, and that the security bond became as of full force against the defendant appellant and that he is liable to perform the obligations that he entered into under it. Under these circumstances we dismiss the appeal with costs including fees on the higher sale. We extend the time for payment of the mortgage money for six months from this date.


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