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Chaudhri Rajdhar Vs. Mohan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in131Ind.Cas.593
AppellantChaudhri Rajdhar
RespondentMohan and ors.
Cases ReferredHarchandi Lal v. Sheoraj Singh
Excerpt:
contract act (ix of 1872), section 62 - mortgage bond--renewal by another bond--material alteration of secpnd bond--suit on original bond--maintainability. - - 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......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 pay-ment had been made by the defendants. the question before us is whether the execu-tion of this bond of 9th december, 1922, was a novation of contract between the parties within the meaning of section 62 of the indian contract act. a suit was brought no. 1454 of 1924 by the plaintiff on the basis of this bond of 9th december, l922, 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.....
Judgment:

1. This is a second appeal by the piaintiff 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 pay-ment had been made by the defendants. The question before us is whether the execu-tion of this bond of 9th December, 1922, was a novation of contract between the parties within the meaning of Section 62 of the Indian Contract Act. A suit was brought No. 1454 of 1924 by the plaintiff on the basis of this bond of 9th December, l922, 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 band of 12th December, 1919, and he claims that because he is unale 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 as Harchandi Lal v. Sheoraj Singh 39 Ind. Cas. 343 : 15 A.L.J. 223 : 32 M, L.J. 241 : I.P.L.W. 330 : 5 L.W. 502 : (1917) M.W.N. 290 : 25 C.L.J. 316 : 21 M.L.T. 292 : 21 C.W.N. 765 : 19 Bom. L.R. 444 : 39 A. 178 : 44 I.A. 60 (P.C.). In that case there was a suit brought on a mortgage of 13th November, I876. This mortgage was handed back to representatives of the mortgagor when they executed two fresh mortgages in September and October, 1887. Thess representatives were the widow and the nephew of the mortgagor.

2. 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 regerds 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 of the Indian 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 the 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 mort-gage-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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