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Mahadeo Prasad Singh and ors. Vs. Mathura Chaudhari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All589
AppellantMahadeo Prasad Singh and ors.
RespondentMathura Chaudhari
Cases ReferredSahu Ram Chandra v. Bhup Singh A.I.R.
Excerpt:
.....to wait for one year after her death, but he could send a registered notice for executing the sale-deed relating to teknar, and if within a month of the date of the notice the first party failed to execute the sale deed the mortgagee would have a right to refuse to take the sale-deed, and in that event he would not be bound by the terms of this agreement, 6. in paragraph 5 provided that the price would be the entire amount due on the mortgage money up to date. 7 it was clearly stated that mathura chaudhari would be bound by all the conditions of the said agreement and would have the sale deeds executed if the executants first party did not do any act in contravention of the terms of the agreement. act, and it has been now clearly laid down by their lordships of the privy council in..........december 1920 rs. 19,459-14-0 in all were due on the previous mortgage of 1918. on that date a sale deed was executed of certain property by the heirs of the mortgagor in lieu of rupees 11,500, and for the balance of rupees 7,949-14-0 the parties entered into an agreement which is printed on p. 19. the execution of the sale-deed in lieu of rs. 11,500 is referred to in the agreement itself. the stamp paper of this document had been purchased on 23rd december 1920 before the sale deed was executed and registered, and there can be no doubt that the two were part and parcel of the same transaction which was entered between the parties. as the terms of this agreement have to be examined at length it would be convenient to give their substance paragraph by paragraph.3. in para. 2 the heirs.....
Judgment:

Sulaiman, J.

1. This is a defendants appeal arising out of a suit for sale on the basis of a mortgage deed dated 18th March 1918, executed by Lal Bahadur Singh in favour of Mathura Chaudhari for Rs. 15,925. The defendants were the sons of the deceased mortgagor. The main ground on which they contested the claim was that in view of an agreement between the parties dated 25th December 1920 the plaintiff's suit was premature and was not maintainable. The learned Subordinate Judge has come to the conclusion that the agreement in question was void and wholly inoperative and was therefore no bar to the present claim.

2. On 25th December 1920 Rs. 19,459-14-0 in all were due on the previous mortgage of 1918. On that date a sale deed was executed of certain property by the heirs of the mortgagor in lieu of Rupees 11,500, and for the balance of Rupees 7,949-14-0 the parties entered into an agreement which is printed on p. 19. The execution of the sale-deed in lieu of Rs. 11,500 is referred to in the agreement itself. The stamp paper of this document had been purchased on 23rd December 1920 before the sale deed was executed and registered, and there can be no doubt that the two were part and parcel of the same transaction which was entered between the parties. As the terms of this agreement have to be examined at length it would be convenient to give their substance paragraph by paragraph.

3. In para. 2 the heirs of the mortgagor, the executants first party, held themselves out as the reversioners to the estate of a Hindu widow, Mt. Ram Dei Kumari, although admittedly an uncle of theirs who was a nearer reversioner was then alive. Apparently both this widow and the uncle were of advanced ages and it was expected that the executants first party would survive both of them. They stipulated that if Mt. Ram Dei died or executed a deed of relinquishment in their favour and in that way they became the owners of certain shares in three villages, Dubaulia, Kowa and Lodhapur, they would execute a sale deed of 6 pies shares in these three villages in favour of Mathura Chaudhari executant, second party, in full discharge of the outstanding amount.

4. In para. 3 it was provided that if they were for any reason unable to obtain proprietary possession of the shares in the three villages within a year after the death of the lady, or in spite of obtaining proprietary possession they did not execute a sale deed relating to those properties and deliver possession within a year after her death or relinquishment by her, they would within 15 days after the expiry of one year execute in favour of Mathura Chaudhari a sale deed in respect of one anna and one and half pie share, which had on partition become a 4 annas share, in Teknar.

5. Paragraph 4 provided that if they did not get the shares in the three villages after the death or relinquishment of Mt. Ram Dei Kumari and some other heir got the estate then it would not be obligatory on Mathura Chaudhari to wait for one year after her death, but he could send a registered notice for executing the sale-deed relating to Teknar, and if within a month of the date of the notice the first party failed to execute the sale deed the mortgagee would have a right to refuse to take the sale-deed, and in that event he would not be bound by the terms of this agreement,

6. In Paragraph 5 provided that the price would be the entire amount due on the mortgage money up to date.

7. In para. 6 an independent condition was laid down that in the event of the date for bringing a suit on the basis of the mortgage deed coming too close at hand before the death or relinquishment of Mt. Ram Dei, the executants first party would, six months before the date of the expiry of the limitation, execute a fresh deed, and Mathura Chaudhari would be bound to desist from bringing a suit; but if the executants first party did not execute a fresh document Mathura Chaudhari would have a right to seek any remedy he deemed proper.

8. In para. 7 it was clearly stated that Mathura Chaudhari would be bound by all the conditions of the said agreement and would have the sale deeds executed if the executants first party did not do any act in contravention of the terms of the agreement.

9. There cannot be the least doubt that the reversionary interest of the executants first party in the estate held by Mt. Ram Dei was a mere spes successions contingent upon the succession opening to them on her death. A sale of such a chance of succession is altogether void under Section 6, T. P. Act, and it has been now clearly laid down by their Lordships of the Privy Council in the case of Ananda Mohan Roy v. Gour Mohan Mullick A.I.R 1923 P.C. 189 that an agreement by a Hindu to-sell immovable property to which he is a reversionary heir, even if the nearest,, expectant upon the death of a widow in possession, and to transfer it upon possession accruing to him is void, as it is not a performable contract until the realisation of the expectation occurs. Such a transfer although not expressly prohibited is certainly not permitted, and is declared to be void by Section 6, T. P. Act. The extract quoted by their Lordships from the judgment of Tyabji, J,, in Sri Jagannada Raju v. Sri Rajahprasada Rao [1916] 39 Mad. 554 at p. 559 shows that their Lordships considered that such an agreement if permitted' would defeat the provisions of that section. This re-affirms the view expressed by their Lordships in Harnath Kunwar v. Indar Bahadur Singh A.I.R. 1922 P.C. 403.

10. It follows that the consideration, being of such a nature that, if permitted, it would defeat the provisions of any law, is unlawful within the meaning of Section 23, Contract Act and is void.

11. The learned advocate for the appellants has first contended before us that the agreement in substance amounted to an extension of time fixed for payment and therefore did not require any consideration passing from the promisee under-Section 63, Contract Act. That in a case falling under Section 63 no fresh consideration is necessary is now well settled: Jugal Kishore v. Chari & Co. : AIR1927All451 , Chunna Mal Ram Nath v. Mool Chand Ram Bhagat A.I.R. 1928 P.C. 99. In reply, the learned advocate for the respondent contends in the first place that the extension of time can be made only before that time has expired. He relies on the case of Trimbak Gangadhar v. Bhagwandas Mulchand [1899] 23 Bom. 348, in support of his view. The facts of that case are distinguishable as the promise merely was to postpone an auction sale for four days. But if the learned Judges intended to lay down that before Section 63 can be applicable the extension of time must have been given before the time fixed expired, we would be 'unable to agree with that view. There seems to be no reason why the scope of Section 63 should be limited in that way. That section also requires dispensing with or remitting wholly or in part the performance of the promise made to him, and there is no ground for supposing that such dispensing or remission cannot be made after the time has once expired. The performance of the promise does not necessarily include the performance within the time originally fixed, for if the time is not of the essence of the contract performance can be made even after it has expired (Section 55). Illus. (e), Section 63, deals with the case of a composition of creditors, which need not be before the expiry of the time for payment of the various debts due. We therefore see no reason why a creditor may not extend the time within which the performance had to be made and why such an extension would not be governed by Section 63. The Indian law on this point is contained in that section and is apparently different from that prevailing in England.

12. We however think that the second argument urged on behalf of the respondent must prevail. Section 63 would be applicable only if it were merely a case of an extension of time. This in our opinion is not the case here. The mortgagee did not merely give further time to the mortgagor's heirs to pay the mortgage money, but there was a new contract for the transfer of property in payment of the outstanding mortgage debt. Again he did not agree to give a mere extension of time, in case no sale deed was executed within one year after the death of or relinquishment by Mt. Ram Dei, to execute such a sale-deed afterwards; but that promise was to be substituted by a new promise to execute a sale deed of the share in Teknar within 15 days following. Similarly in para. 4 a new promise for substitution of the previous promise was to be carried out in case of default of the performance of the first promise. Beading all the terms of the agreement we are of opinion that this was a case of a substituted contract. The case therefore is governed by Section 62 and not Section 63, Contract Act. The agreement would therefore not be binding on Mathura Chaudhari if it were not supported by valid consideration.

13. That there was consideration passing from the heirs of the mortgagor is apparent. The ruling in Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C 61 was then in full force, and it would have been open to the heirs of Lal Bahadur to challenge the mortgage on the ground of want of legal necessity. Not only have we the fact that this agreement was a part and parcel of the same transaction under which certain properties were sold to Mathura Chaudhari for Rs. 11,500 but there was undoubtedly a promise to transfer 6 pie shares in the three villages after the death of or relinquishment by Mt. Ram Dei Kumari and in the event of default to sell the share in Teknar. The agreement was entered into by both the parties and there was mutual consideration.

14. The learned advocate for the respondent next contends that part of the consideration, viz.: the promise to execute a sale dead of the reversionary right when it accrued was not only void but unlawful, and therefore by virtue of Section 24, Contract Act, the whole agreement was void. Under that section if any part of a single consideration for one or more objects, or any part of any one of several considerations for a single object is unlawful, the agreement is void. We however think that that section has no application to promises which are offered in the alternative. Such a case is expressly provided for in Section 58 of the same Act, under which in the case of an alternative promise, one branch of which is legal and the other illegal, the legal branch alone can be enforced. The illustration to that section shows that if A and B agree that A shall pay B Rupees 1,000 for which B shall afterwards deliver to A either rice or smuggled opium, this is a valid contract to deliver rice and a void agreement as to the opium. It therefore follows that if there are alternative promises, only one of which is unlawful, the consideration is good.

15. We have already set forth the substance of the agreement and we have no doubt in our minds that there were alternative promises. The executants first party hoped to succeed to the estate of Mt. Ram Debi in the event of her death or relinquishment by her, and they agreed that if they did succeed to the estate they would execute a sale deed of their inheritance within one year, and in the event of their failing to do so they would within the following 15 days execute a sale deed of the share in Teknar which they owned at the time. There were thus alternative promises. Similarly in the event of their not succeeding to the estate at all and somebody else becoming the heir they undertook to execute a sale deed of Teknar within one month of the date of a notice from Mathura Chaudhari. It is thus obvious that under the terms of the agreement Mathura Chaudhari was bound to wait during the lifetime of Mt. Ram Debi. If after her death it became apparent that the executants first party succeeded to her estate he had to wait still for a part of one year and then for another period of 15 days. If on the other hand on her death it became apparent that the said executants did not succeed at all, he need not wait for one year, but could give them one month's notice to transfer their share in Teknar. But so far as Mathura Chaudhuri is concerned, he had under the agreement not an absolute right to enforce the contract for the transfer of the inheritance. An option was given to the executants first party either to transfer the inheritance or to transfer their share in Teknar. The case is therefore directly covered by the illustration to Section 58. The promise to transfer Teknar, in any event, and no matter what contingency occurred, was a perfectly good and enforceable promise.

16. In this connexion we may also point out that under Section 15, Specific Belief Act, where a part of a contract which can be specifically performed stands on a separate and independent footing from another part which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part. It is therefore clear to us that there was a good consideration for the promise of Mathura Chaudhari to wait during the lifetime of Mt. Ram Debi before seeking to recover his mortgage money. Admittedly he brought his suit while Mt. Ram Dei was still alive. We must therefore hold that the suit was premature and was in breach of the contract entered into by him. The agreement estops him from seeking remedy which was not allowed to him under the circumstances

17. The next contention on behalf of the plaintiff was that he was entitled to sue by virtue of the right conferred upon him under para. 6 of the agreement. It is suggested that the ordinary period for enforcing a personal covenant to pay the mortgage money is six years, and that inasmuch as six years had expired after the expiry of one year fixed in the mortgage deed, he was entitled to ignore the agreement and sue for his mortgage money. This argument cannot be accepted. The ordinary period for enforcing a claim on a mortgage deed is 12 years under Article 132, Limitation Act. That period would have expired on 18th March 1931, whereas the suit was instituted on 23rd March 1925. That the enforcement of any personal liability was not in contemplation of the parties can be inferred from the circumstance that the original executant was dead and his heirs entered into this . agreement. They were not personally bound to pay that debt although any assets in their hands would have been so liable. It is also clear that the possibility of a money decree under Order 34, Rule 6, was not in contemplation. As a matter of fact the present suit was instituted more than six years after the expiry of the one year fixed in the mortgage deed, and but for the acknowledgment contained in the agreement of 25th December 1920, the personal remedy on it would have been barred by time. If the acknowledgment is taken into account then the personal remedy also could be enforced up to 25th December 1926. So it is quite clear that it is not a fact that this suit was instituted because less than six months remained before the date of the expiry of the limitation. So the plaintiff cannot take advantage of para. 6 of the agreement.

18. We are therefore of opinion that the plaintiff was bound by the terms of the said agreement and his suit was premature. We accordingly allow this appeal and setting aside the decree of the Court below dismiss the suit with costs in both Courts.


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