1. The only question, which was decided by the lower appellate Court and which has been raised before us in this appeal, is whether the mortgage-deed on which the plaintiff has brought his suit is or is not a valid document which would entitle him to sue to recover the debt covered by that document. Both the lower Courts have held that the mortgage bond is an invalid document and is not enforcible, the reason being that the consideration for the document was one which, under the provisions of Section 23 of the Contract Act, must be regarded as unlawful.
2. It appears that the present plaintiff purchased certain properties belonging to the ancestors of the defendants at a sale in execution of a Civil Court decree. Afterwards, there was an arrangement between the plaintiff and the predecessors-in-interest of the defendants by which the plaintiff relinquished his right, under his purchase, to the properties on consideration of receiving from the predecessors-in-interest of the defendants the sum of Rs. 300. That agreement was embodied in a deed of sale, which purported to re-convey the properties purchased by the plaintiffs to the predecessors-in-interest of the defendants. The purchasers appear not to have had the three hundred rupees necessary to be paid to the plaintiff, and, thereupon, Sheikh Sadan, who is said to have been the managing member of the Mahomedan family of which the ancestors of the defendants were members, executed a mortgage-deed in favour of the plaintiff, hypothecating as securities for the payment of the debt of Rs. 300, the properties which had been purchased at the execution sale; and, in 1299, a few years afterwards, a mortgage bond in substitution for the mortgage bond executed by Sadan was executed by five persons whose representatives the defendants are now said to be. The suit has been brought by the plaintiff to recover with interest the money due under the mortgage bond of 1299.
3. The two mortgage bonds were duly registered, but the document, which purported to reconvey to the predecessors-in-interest of the defendants the properties purchased by the plaintiff, was not a registered document. Both the lower Courts have held that, as the provisions of Section 54 of the Transfer of Property Act require that a transfer of tangible immovable property of the value of Rs. 100 or upwards can be made only by a registered document, the sale was an invalid sale, and the mortgage bonds were executed for a consideration which was unlawful. Section 23 of the Contract Act provides that the consideration or object of an agreement is lawful, unless, inter alia it is of such a nature that, if permitted, it would defeat the provisions of any law. Apparently, the lower Courts have held that, in this case, the consideration was unlawful because it would defeat the provisions of Section 54 of the Transfer of Property Act. We do not think, having regard to the facts of the present case, that this view is correct. Section 2, Clause (d), of the Contract Act provides that when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. In the present case, whatever might have been the form of the agreement between the plaintiff as the purchaser at the auction sale and. the predecessor-in-interest of the defendants' the agreement appears to have been, in substance, that the plaintiff would abstain from enforcing his right as purchaser under the execution sale on consideration of the payment to him by the predecessor-in-interest of the defendants of the sum of Rs. 300. We understand that the defendants, on the basis of that agreement, have since been in possession of the property for over twenty years, and that they are not at present prepared to relinquish the advantages which they have obtained under that arrangement. The plaintiff now seeks to recover the consideration which was given for his abstinence from enforcing his right, which consideration was secured by the mortgage bond. In our opinion, there is nothing in the transaction to indicate that the consideration was unlawful or that the mortgage bond was invalid on that account. This case is to a certain extent, similar to that of Hur Kishen Dass Serowgee v. Nibaran Chander Banerjee 6 C.W.N. 27, in which a view similar in principle to that which we now take, was adopted by the learned Judge who decided it. In our opinion, therefore, the main ground on which the lower appellate Court has dismissed the plaintiff's suit cannot be sustained. The Court of first instance has, however, arrived at various other conclusions with reference to the mortgage bond on which it has determined that the bond was otherwise invalid. The lower appellate Court, in disposing of the appeal, has not dealt with any of those points. We think that the appeal should succeed and the case should go back to the lower appellate Court in order that it may be disposed of after the decision of the questions between the parties raised in the Court of first instance in issues Nos. 2 and 3. We, therefore, decree the appeal and direct that the case be sent back to the lower appellate Court in order that it may be dealt with in accordance with the directions given in this judgment. Costs will abide the result.