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(Chaudhary) Rajdhar Vs. Mohan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All325
Appellant(Chaudhary) Rajdhar
RespondentMohan and ors.
Cases ReferredHarchandi Lal v. Sheoraj Singh A.I.R.
Excerpt:
- - in the present case however it is clear that the bond of 9th december 1922 was a perfectly valid bond at the time of its execution......executed by the defendants. subsequent to this transaction on 9th december 1922 there was a simple bond executed by the defendants in favour of the plaintiff for rs. 650 balance then owing after some payment had been made by the defendants. the question before us is whether the execution of this bond of 9th december 1922 was a novation of contract between the parties within the meaning of section 62, contract act. a suit was brought no. 1454 of 1924 by the plaintiff on the basis of this bond of 9th december 1922, and it was held in that suit that the suit should be dismissed because the plaintiff had made certain interpolations in regard to interest and in regard to instalments after the bond had been executed by the defendants. on account of this forgery by the plaintiff the courts held.....
Judgment:

Bennet, J.

1. This is a second appeal by the plaintiff against an appellate order dismissing his suit. The plaintiff sued to enforce a mortgage bond of 12th December 1919 executed by the defendants. Subsequent to this transaction on 9th December 1922 there was a simple bond executed by the defendants in favour of the plaintiff for Rs. 650 balance then owing after some payment had been made by the defendants. The question before us is whether the execution of this bond of 9th December 1922 was a novation of contract between the parties within the meaning of Section 62, Contract Act. A suit was brought No. 1454 of 1924 by the plaintiff on the basis of this bond of 9th December 1922, and it was held in that suit that the suit should be dismissed because the plaintiff had made certain interpolations in regard to interest and in regard to instalments after the bond had been executed by the defendants. On account of this forgery by the plaintiff the Courts held that the plaintiff was unable to sue on this bond at all. The plaintiff has now come into Court relying on his original mortgage bond of 12th December 1919, and he claim's that because he is unable to sue on his bond of 9th December 1922 he should be allowed to sue on his original bond of 12th December 1919. The plaintiff relies on a ruling of their Lordships of the Privy Council reported in Harchandi Lal v. Sheoraj Singh A.I.R. 1916 P.C. 68. In that case there was a suit brought on a mortgage of 13th November 1876. This mortgage was handed back to representatives of the mortgagor when they executed two fresh mortgages in September and October 1887. These representatives were the widow and the nephew of the mortgagor. Subsequently it was held that the widow was not bound by these two mortgage deeds of 1887 as fraud had been practised on her by the predecessor-in-title of the plaintiff and it was doubtful if she had executed the deeds at all. Under these circumstances their Lordships held that in equity the plaintiff should be allowed to sue on his original mortgage of 13th November 1876. There is however a clear distinction to be drawn between this ruling and the facts of the present case. In that ruling the facts were that it had been held between the parties that the mortgage deeds of 1887 were invalid ab initio as regards the widow. In the present case however it is clear that the bond of 9th December 1922 was a perfectly valid bond at the time of its execution. It was undoubtedly intended to substitute a new contract for the original contract, and therefore under Section 62, Contract Act, the original contract need not be performed. This alteration in the original contract took effect from 9th December 1922. At some date subsequent to 9th December 1922 the plaintiff by his own action rendered the bond of 9th December 1922 invalid. But we do not see how under any principle of law the fact that the plaintiff by his own act rendered the bond of 9th December 1922 invalid could have the effect of reviving the mortgage deed of 12th December 1919 which had come to an end by the novation of contract on 9th December 1922. We consider therefore that the order of the lower appellate Court was correct and we dismiss this appeal with costs.


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