Skip to content


Sheo NaraIn Dube Vs. Raj Kumar Rai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in116Ind.Cas.17
AppellantSheo NaraIn Dube
RespondentRaj Kumar Rai and ors.
Cases ReferredJarbandhan v. Badri
Excerpt:
contract act (ix of 1872), section 24 - mortgage in contravention of law--personal covenant, validity of. - 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 3628 overruled]. - if, however, the mortgage was to come into existence on the breach of a personal covenant and first of all a personal covenant to pay was entered into, the failure of the mortgage would not lead to the failure of the personal covenant......tewari 67 ind. cas. 793 : 20 a.l.j. 318 : 44 a. 486; a.i.r. 1922 all. 134. the learned counsel for the applicant quoted the ruling in the case of jarbandhan v. badri 83 ind. cas. 19 : 45 a. 621 : a.i.r. 1924 all. 80 : 21 a.l.j. 480. the distinction between the cases is very clear. if a mortgage prohibited by law comes into existence on the money being borrowed, the entire contract of mortgage is void under section 24 of the indian contract act, and that being so the personal covenant in the mortgage also falls along with the contract of mortgage. if, however, the mortgage was to come into existence on the breach of a personal covenant and first of all a personal covenant to pay was entered into, the failure of the mortgage would not lead to the failure of the personal covenant. in the.....
Judgment:

Dalal, J.

1. There is nothing to distinguish this case from the ruling in the case of Her Prasad Tewari v. Sheo Gobind Tewari 67 Ind. Cas. 793 : 20 A.L.J. 318 : 44 A. 486; A.I.R. 1922 All. 134. The learned Counsel for the applicant quoted the ruling in the case of Jarbandhan v. Badri 83 Ind. Cas. 19 : 45 A. 621 : A.I.R. 1924 All. 80 : 21 A.L.J. 480. The distinction between the cases is very clear. If a mortgage prohibited by law comes into existence on the money being borrowed, the entire contract of mortgage is void under Section 24 of the Indian Contract Act, and that being so the personal covenant in the mortgage also falls along with the contract of mortgage. If, however, the mortgage was to come into existence on the breach of a personal covenant and first of all a personal covenant to pay was entered into, the failure of the mortgage would not lead to the failure of the personal covenant. In the present case the mortgage was secured for the money borrowed and there was no personal covenant for the payment prior to the recital of the mortgage. It is not stated in the bond that a mortgage will come into existence on non-payment of the money on the basis of the personal covenant. I dismiss this application with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //