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Gaya Singh and ors. Vs. Surajbali Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All832; 75Ind.Cas.931
AppellantGaya Singh and ors.
RespondentSurajbali Singh and ors.
Cases Referred and Kesar Kunwar v. Kashi Ram
Excerpt:
construction of document - mortgage-deed--mortgage by conditional sale--deed of further charge or mashrat-ul-rehan--consolidation--redemption--evidence act (i of 1872), section 90--transfer of properly act (i v of 1882), section 59--hypothecation deed executed before transfer of property act--signature of executant, absence of--presumption of genuineness. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc..........court, and it forms the subject-matter of the present appeal. the latter deed recited the earlier mortgage by condtional sale and stated that a further loan of rs. 400 was taken from the mortgagees, which was to be included in the money due on the earlier mortgage and re-paid with it. it also contained a covenant that until the money due on the latter deed was paid, the mortgagors could not be entitled to redeem the mortgage by conditional sale or to transfer any portion of the mortgaged property elsewhere, the deed was described as a deed of further charge (dastawez tamassuk mashrat-ul-rehan). the language of the document, taken as a whole, clearly shows that the parties intended that the money due on the subsequent transaction, represented by the above deed of further charge,.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit for redemption of a mortgage by conditional sale effected by Ram Dayal Singh and others in favour of Sukhai Singh and Gopal Singh on the 12th of January 1862. The suit was resisted by the defendant No. 1 who claimed in addition the money due on what he described as two other deeds of further charge. One of them was disallowed by the Court of first instance but allowed by the lower Appellate Court, and it forms the subject-matter of the present appeal. The latter deed recited the earlier mortgage by condtional sale and stated that a further loan of Rs. 400 was taken from the mortgagees, which was to be included in the money due on the earlier mortgage and re-paid with it. It also contained a covenant that until the money due on the latter deed was paid, the mortgagors could not be entitled to redeem the mortgage by conditional sale or to transfer any portion of the mortgaged property elsewhere, the deed was described as a deed of further charge (dastawez tamassuk mashrat-ul-rehan). The language of the document, taken as a whole, clearly shows that the parties intended that the money due on the subsequent transaction, represented by the above deed of further charge, was to be consolidated with that due on the earlier mortgage by conditional sale, and that the said mortgage by conditional sale was not to be redeemed till the money due on the deed of further charge was paid. In fact, the mortgagers had agreed not to transfer the property elsewhere till the money due on the deed of further charge was re-paid. The terms of the documents correspond very nearly with the terms of the documents which formed the subject of consideration in Ranjit Khan v. Ramdhan Singh 2 Ind. Cas. 859 : 31 A. 482 : 6 A.L.J. 654 and Har Pershad v. Ram Chander 63 Ind. Cas. 750 : 19 A.L.J. 807 : 3 U.P.L.R. (A.) 18 : 44 A. 37 : (1922) A.I.R. (A.) 174. The learned Counsel for the appellants has referred to the decisions in Baldeo Rai v. Murli Rai 16 Ind. Cas. 638 : 10 A.L.J. 120 and Kesar Kunwar v. Kashi Ram 30 Ind. Cas. 777 : 37 A. 634 : 13 A.L.J. 889. But the terms of the documents considered in those cases were in no sense identical with those which form the subject of consideration in the present appeal. In the former case there was no indication afforded by the deed of the creation of any further charge and all that it provided was that the money due on the later transaction was to be paid first, that is to say, before that due on the earlier deed was paid. In the latter case the contract of consolidation was not explicit as in the present instance, and the document was not described as a deed of further charge.

2. It is also urged that the lower Appellate Court was not justified in presuming the genuineness of the deed of further charge in question inasmuch as the deed did not purport to have been signed by the executants personally or to bear their marks. The deed was, however, executed on the 13th of January 1862 before the Transfer of Property Act or 1882 had come into force, and it was usual at that time that the signatures of the executants and all such attesting witnesses, as were illiterate were made by the scribe at their instance or request and they were treated as signatures made by an authorised agent and as effectual as the signatures or marks of the executants themselves. The document was duly registered by the executants and over thirty years old; and there is no reason to think that it was otherwise than g u ine. The appeal is, therefore, dismissed with costs.


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