SATYANARAYAN MANGAL Vs. SHRAWAN KUMAR

JUDGEMENT

(1.) Respondent (Plaintiff) Satyanarayan is the son of Mangal. He filed a suit alleging that on 20 -8 -1938 Ramdayal, as the manager of joint Hindu family, consisting of himself and his two sons Dwarkaprasad and Shardaprasad, executed a registered sale -deed in respect of the mortgaged fields Khasra Nos. 125/2, 126 and 128 of mouza Dehari, which were his absolute occupancy lands, in favour of Mangal, the Plaintiff's father, for a consideration of Rs. 950. These fields were mortgaged with possession with the Defendants Nos. 1 and 2, for a consideration of Rs. 450. These Defendants Nos. 1 and 2 were also members of the joint Hindu family. Ramdayal needed money to pay off the arrears of land revenue. The sale -deed is dated 20 -8 -1938, and the material portion of the recital therein is as follows:

(2.) ON 1 -5 -1939 Mangal sent a registered notice to the Defendants (mortgagees) and sent Rs. 403 by money -order as redemption price calling upon them to redeem the mortgage. The Defendants received the amount, but did not take any farther action. Therefore, the Plaintiff, who is the son of Mangal, brought a suit for redemption of the mortgage, dated 21 -8 -1936, against the Defendants -Appellants. The suit was decreed by the trial Court and it was ordered that the Plaintiff could redeem the mortgage by paying Rs. 450 to the Defendants. Against this decree, an appeal was taken to the Additional District Judge, Hoshangabad, who dismissed it with costs. The Defendants have now come in second appeal before this Court.

(3.) THE first contention advanced by the learned Counsel for the Appellants is that the sale -deed (Exh. P -5) was executed only by Ramdayal, though it purported to be executed by him and his son Dwarkaprasad also, but Dwarkaprasad did not sign it. The learned Counsel, therefore, argued that the agreement could not be enforced even against Ramdayal. In my opinion, this contention is devoid of substance. The main portion of the sale -deed, as reproduced above, clearly indicates that it was definitely a sale -deed, and not an agreement to sell. Then, the learned Counsel advanced an argument that where a document, which was intended to be signed by more than one person, was signed only by some of them, the others having refused to execute the deed when asked to do so, it constituted merely a proposed agreement which had never been perfected. The counsel placed reliance on Sivasami Chetti v. Sevugan Chetti ILR 25 Mad. 389. Shri J.N. Sinha, learned Counsel for the Respondent, distinguished this case by placing reliance on Krishnama Chariar v. Narasimha Chariar ILR 31 Mad. 114 where it was held by a Division Bench that a deed is not invalid because one only of several parties who purported to execute it actually signed it. Several cases have clustered round Sivasami Chetti v. Sevugan Chetti ILR 25 Mad. 389, and the true rule seems to have been laid down by Dalip Singh J. in Umar Baksh v. Mul Raj AIR 1942 Lah. 86 wherein it is stated: