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Bisheshar Pathak and ors. Vs. Rup NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1928All286; 108Ind.Cas.566
AppellantBisheshar Pathak and ors.
RespondentRup NaraIn Singh
Cases ReferredBahoran Upadhya v. Uttamgir
Excerpt:
- - costs throughout will be according to success and failure......in respect of occupancy rights arising from the sale of sir land was illegal.2. in appeal the district judge differed from the lower court's finding as to the plaintiff's majority at the time of the execution of the deeds. he found that he was a minor and gave the plaintiff a decree cancelling both the sale-deed and the lease on condition of certain payment to the defendants. this appeal by the defendants is based on the allegation that certain sums not allowed by the district judge should have been allowed to them.3. dealing with the sale-deed for which the consideration was rs. 1,400, it is common ground that the defendants never paid rs. 1,100. as to rs. 300 it was in discharge of a pro-note executed by the minor. the minor's vakil in the trial court admitted that the sum of rs......
Judgment:

Kendall, J.

1. This second appeal arises out of a suit brought by the plaintiff against the appellants for a declaration setting aside two deeds executed by him in their favour. One was a sale of zamindari property and the other was a lease of sir lands. The plaintiff claimed to have been a minor when he executed these deeds. The trial Court dismissed the suit in respect of the sale-deed on the ground that the plaintiff had been of age when he executed these deeds but allowed the suit in respect of the lease on the ground that a perpetual lease for a sum paid in advance in respect of occupancy rights arising from the sale of sir land was illegal.

2. In appeal the District Judge differed from the lower Court's finding as to the plaintiff's majority at the time of the execution of the deeds. He found that he was a minor and gave the plaintiff a decree cancelling both the sale-deed and the lease on condition of certain payment to the defendants. This appeal by the defendants is based on the allegation that certain sums not allowed by the District Judge should have been allowed to them.

3. Dealing with the sale-deed for which the consideration was Rs. 1,400, it is common ground that the defendants never paid Rs. 1,100. As to Rs. 300 it was in discharge of a pro-note executed by the minor. The minor's vakil in the trial Court admitted that the sum of Rs. 300 was actually paid to the minor. At least this is a construction which the appellant's counsel would have us to put on a certain recorded admission. On the other hand it is stated by the counsel for the respondent that this admission would not cover this alleged payment. The admission runs thus:

All the documents recited in these two deeds have been paid up by the defendants.

4. It is said that a person cannot pay up himself. In view of the fact that there does not appear to have been a denial by the plaintiff minor that he really received Rs. 300, we think that this admission must be taken to cover the payment of Rs. 300.

5. As regards the lease, the District Judge has allowed to the defendants certain sums. But he has not allowed the following four sums:

1. Rs. 171 paid to one Kunj Bihari on a mortgage executed by the minor.

2. Rs. 13 paid to a bank for sum due from the minor.

3. Rs. 200 price of a camel for the minor.

4. Rs. 164 said to be paid at the time of registration.

6. The District Judge has not explained why he has disallowed these sums. He has merely omitted them. The appellant's counsel urges that his clients are in possession of the leased lands and that there is authority for holding that in such a case the lease will not be set aside on the ground of illegality, and the lessee who is really in possession be turned out, unless the sum actually paid as consideration for the lease is refunded. He refers to Bahoran Upadhya v. Uttamgir [1911] 33 All. 779. He contends that the same principle will apply to a case where a deed is set aside on account of minority. He also urges that the cancelling of a document on the ground of minority is a matter in which the terms to be imposed are entirely within the discretion of the Court.

7. We have considered this case and we find that the minor must have bean very nearly of age when he executed the deeds. In second appeal we are not entitled to go behind the finding of the District Judge that he was a minor, but in imposing terms we consider we may take into consideration the fact that at the time of execution he must have been at least 16 and that he has received substantial benefit. We concur in the view that where a lease is executed by a minor and is set aside on terms against a person in possession the principle invoked in Bahoran Upadhya v. Uttamgir [1911] 33 All. 779 should apply.

8. We would also mention that it appears to be admitted by both parties before us that the District Judge was wrong in holding that the Rs. 300 part of the consideration for the sale-deed was set off against a mortgage. As shown above it was sat off against a pro-note executed by the minor.

9. In conclusion we allow this appeal and modify the decision of the lower appellate Court. The appellants, in addition to the sum of Rs. 275, should get the sums of Rs. 171, 13, 200 and 164 mentioned above, total Rs. 548. This total sum of Rs. 548 should be added to the Rs. 275 mentioned in the lower Court's judgment as payable by the plaintiff before he can get the lease cancelled. We also order that the decree shall provide for a sum of Rs. 300 being paid by him as a preliminary condition to his getting the sale-deed cancelled. Any reference in the lower Court's decree to a mortgage of Rs. 300 as still subsisting in favour of Dasrath Pathak should be expunged from that decree. Costs throughout will be according to success and failure.


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