SHANKAR BALA JAGTAP Vs. GOTIRAM PANDURANG PAWAR

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a judgment of Mr. Justice Kania who, disagreeing with both the lower Courts, dismissed a suit brought by the appellants to recover the price of land sold by them to defendant No.1 by sale of the land.

(2.) THE appellants were the owners of a field survey No.493 and some other lands which were in the possession of mortgagees under a mortgage of 1868. On August 29, 1916, they executed a sale deed, exhibit 26, in favour of defendant No.1. THE material terms of this document, which was registered, are as follows:- Land thus bounded, along, with the trees, shrubs etc., thereon and along with all their component parts, has been sold for the said sum of Rs. 3,000. You should therefore take into your possession all the mortgaged lands from the creditors, either by mutual consent, or through Court and out of them you should keep in your possession the land sold and described above and pay assessment and should make a vahiwat permanently and without any trouble, from generation to generation including sons and grandsons. No right, title or interest has been left therein in us or in our heirs and executors, etc. You should take the remaining mortgaged lands from the possession of the creditors as indicated above and give them into our possession. If the sum that is found due to the creditors after taking accounts is less than the purchase amount, you should pay the balance to us. You have no right over that sum. If perhaps the sum found due to the creditors after taking accounts is more, we shall re-pay that out of the other mortgaged properties. You are not to be burdened with that. If it becomes necessary to file a suit in Court for the redemption of the lands from the said creditors we shall render every possible assistance in that matter and will join in the suit. You should incur the costs of the suit and should deduct the same from the sale price to be paid to us. THE consideration is as under:- After deducting the sum that will have to be paid to the creditors after taking accounts and the costs of the suit if a suit is required to be filed for the purpose of redeeming the lands, from the sum of Rs. 3,000, you should pay the balance found due to us and should hand over the remaining mortgaged lands to us. If the costs exceed the amount, we shall pay the excess. We have sold you absolutely the land as described above, for the consideration of Rs. 3,000 without any oral and written terms of any kind whatsoever.

(3.) ACCORDING to this writing then the plaintiffs gave up their claim to any balance there might be after paying off the mortgagees, and defendant No.1 on the other hand apparently became liable to redeem the mortgage whatever it cost. This document was not registered.