AMIRJAN SAHEB Vs. SYED KHADER

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit out of which this second appeal arises is one on a promissory note admittedly executed by the defendant in favour of the plaintiff, Ex. A-1 D/- 6-4-1966, is the promissory note for a sum of Rs. 1250 so executed. Admittedly this amount represents part of the consideration detained by the defendant in respect of a land purchased by him from the plaintiff. On the same date, namely 6-4-1966, when the promissory note was executed there was an agreement between the parties as per Ex. B-1. That shows that the parties contemplated that there would be litigation regarding the title to the property as the Wakf Board was likely to claim the same to be its property and therefore out of the total consideration of Rs. 4500 a sum of Rs. 1250 was left with the defendant, namely the purchaser himself, so that the said amount could be spent for litigation expenses. The agreement provides that if any litigation starts within five years of transaction dated 6-4-1966, the expenses towards the same have to be met from out of the said sum of Rs. 1250 (and the plaintiff) would be entitled only to the balance ii any after meeting the litigation expenses. There is also provision in the agreement that if no litigation is commenced disputing the title to the property within five years, the plaintiff would be entitled to the entire promissory note amount and that if any litigation starts after the period of five years it was the lookout of the defendant himself to meet the litigation expenses. There is the further provision that the defendant should keep the promissory note alive by making payment before the expiry of three years.

(2.) EX. A-3 dated 13-9-1968 is an endorsement admittedly made by the defendant on the promissory note paying a sum of Rs. 50 towards the same. This is in accordance with the terms of the agreement, Ex. B1.

(3.) THE plaintiff filed the suit on the promissory note claiming the entire amount as per the promissory note less the sum of Rs. 50 paid under Ex. A. 3. The defendant contended that the Wakf Board has filed a suit claiming title to the property which was sold by the plaintiff to the defendant and that therefore the promissory note must be held to have been discharged. He also contended that, in any event, the suit is premature.