LAWS(BOM)-1940-5-3

THAKUR BHAGWAN SINGH Vs. BISHAMBHAR NATH

Decided On May 02, 1940
THAKUR BHAGWAN SINGH Appellant
V/S
BISHAMBHAR NATH Respondents

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court of Allahabad dismissing an appeal by the present appellants and allowing an appeal by the first three respondents from a judgment of the Subordinate Judge of Agra. The action was brought to recover Rs. 44,000, the principal sum secured by a mortgage dated August 17, 1924, with interest thereon at five and a quarter per cent. THIS mortgage was in fact the last in a Series by way of renewal of an original mortgage dated July 22, 1892, whereby Durjan Sal, the father of appellant No.1 and great grandfather of appellants Nos. 2 and 3, had mortgaged some of his ancestral lands to one Bhoraj, the father of respondent No.4, for Rs. 25,000. The consideration for the mortgage is stated in the deed to be the discharge of two promissory notes with interest amounting to Rs. 6,221-8-0 and Rs. 18,778-8-0 cash, for payment of a debt due under a bond. On the same day the mortgagor executed a bond for Rs. 2,000 payable in two years in favour of the mortgagee. THIS mortgage was renewed on April 26, 1895, again on July 29, 1910, and finally on August '17, 1924, by the mortgagee which is the subject of the present suit. The execution and completion of the original mortgage and the receipt of Rs. 6,221-8-0 were admitted by the mortgagor in the presence of the Sub-Registrar, who certified that the cash payment of Rs. 18,778-8-0 and the two promissory notes were given to the mortgagor in his presence. Between August, 1912, and January, 1917, various payments, four in all, were made on account of interest due on the mortgage. On September 30, 1932, the respondent Khetpal in whom the mortgage was then vested assigned all his rights therein to the father of respondents Nos. 1 and3.

(2.) SEVEN issues were framed, but for the purpose of the present appeal, only the first is material and was the only one argued, namely " Was the bond in suit executed for consideration and is it not binding on the defendants ? " The case made for the defendants was that the original mortgage was not made for any legal necessity, but to procure money to enable the mortgagor to pursue a course of immoral living and debauchery, and that the true consideration was not Rs. 25,000 inasmuch as the promissory notes were merely fictitious documents, the sum of Rs. 6,200 never having been advanced at all, nor had the Rs. 2,000 ever been paid to the mortgagor. The Subordinate Judge found against the defendants on their plea as to there being no legal necessity for the borrowing, and his finding on that point was upheld by the High Court and is not now the subject of appeal. But the Subordinate Judge held that the sum of Rs. 6,221-8-0 never was advanced on the promissory notes and that there was no consideration for the bond for Rs. 2,000, and there was thus a failure of consideration to the extent of those two sums. He accordingly granted a decree for the amount of the principal and interest less these two sums, and, having recalculated the interest, he deducted in all Rs. 25,488. On this point the High Court reversed the learned Subordinate Judge and granted a decree for the full amount claimed.

(3.) IT is impossible to entertain an application for retrial on such vague and unsubstantial grounds as these.