SOSHIL KUMAR Vs. SETH MADAN GOPAL

JUDGEMENT

(1.) THIS was a suit by the three minor sons of Lala Biri Mal seeking declaration that a sale made by their father should be set aside as being without legal necessity. The trial Court has dismissed the suit and the plaintiffs have new come in appeal.

(2.) THE property in dispute is a three-storeyed house with shops situate in Pahari Dhiraj, Delhi city. On 18-10-1913 the property was purchased by Mutsaddi Lal, the grandfather of the plaintiffs. for a consideration of Rs. 12,000/ -. At that time the area sold according to the sale deed amounted to 250 sq. yards which is roughly in accordance with the evidence that the present measurements of an area of 245 sq. yards (sic ). The structures on the site at the time of the 1913 sale deed are described in the sale deed as being "two shops having two apartments, covered with corrugated iron sheets and one entire shop i. e. , an 'ihata' for selling fuel. . . . . the foundations being of rubble stone and pucca brick, roofed with wooden rafters, planks and corrugated iron sheets". According to the plaintiffs, in the year 1915 their grandfather made the present constructions on the site and it may be accepted that the property now bears little relation to what it was at the time of its purchase in 1913. On 23-12-1938 the father of the plaintiffs mortgaged the property for Rs. 15,090/- to one Sayed Hayat AH Shah. In that mortgage deed the property is described as "a house and three shops with 'balakhanas' and staircases, adjoining each other, entirely built of pucca masonry,. . . . . . the foundations being of granite stone and pucca bricks, roofed with wooden rafters and planks and furnished with pairs of shutters". The mortgage was with possession but Biri Mal executed a lease agreeing to pay monthly rent of Rs. 150/- in lieu of interest, the rate of which was 12 per cent, per annum. On 1-5-1939 Biri mal executed a further mortgage again for Rs. 15,000/-in favour of the same mortgagee. These two mortgages were challenged by the present plaintiffs by Suit No. 47 of 1940 (also described as No. 107 of 1941) to which, as in the present suit, their father Biri Mal was a party. It was held in that suit that while the property was ancestral 'qua' the plaintiffs, the mortgages were for legal necessity and the, suit of the plaintiffs was dismissed on 24-10-1941. The matter was not taken in appeal, and on 17-12-1941, two months after the decision, Biri Mal executed the sale deed challenged by the present suit in favour of respondent 1 Ma-dan Gopal for a consideration of Rs. 23,000/ -. The sale deed recites the two mortgages in favour of Hayat Ali shah to the extent of Rs. 30,000. It states that a settlement has been arrived at bet-ween Birl Mal and Hayat Ali Shah whereby Rs. 22,000/- Is due on these mortgages, the sale to Madan Gopal is effected for the purpose of paying this Rs. 22,000/- and a further Rs. 1000/- expenses of the sale deed including registration expenses.

(3.) THERE is no dispute that the mortgagee Hayat Ali Shah was paid off in the manner set out in the sale deed. The sale deed in favour of Madan Gopal in terms is an ordinary sale deed. It was registered on 5-1-1942. On 10-1-1942 two more documents were executed between Biri Mal and ma-dan Gopal. One of these was an agreement made by Madan Gopal to re-convey the property to Biri Mal at any time within five years on payment of the consideration of the sale deed, namely Rs. 23,000/- and other dues. Registration of this document was not effected. The second document was a lease for five years by Madan Gopal in favour of Biri Mal of the suit property at a monthly rent of Rs. 143/12/- which, it is pointed out, would be equivalent to interest on the Rs. 23,000/- at 74 per cent, per annum. Registration of this lease was effected. The present suit was filed on 28-8-1947 and Biri Mal again is a party to this suit. He entered no pleading and did not appear as a witness. In the earlier suit challenging the mortgages he had appeared as a witness.