PRADYAMAN PRASAD SINGH Vs. MAHADEO SINGH

JUDGEMENT

(1.) This is a plaintiff's second appeal from the decision of the learned District Judge of Bhagalpur, reversing that of the Munsif of Banka in a suit for redemption. The plaintiff claimed title to the property by virtue of the sale-deed executed by the owner of the property on nth May 1943, in his favour. The land belonged to Nirpat, who mortgaged it to the defendant, first party, on 12th May 1928. On 24th April 1942, the owner purported to sell the property to Pabitra Mistri. But the plaintiff's case is that that document was not given effect to, because the vendee was not in a position to discharge his liabilities under the contract. That is to say, he expressed his inability to pay the consideration money. Thereupon, the mortgagor sold the property to the plaintiff.

(2.) The suit was contested by the mortgagee on the grounds: (1) that the plaintiff had no title to maintain his suit, the land in question having been conveyed already by the aforesaid deed dated 24th April 1942, in favour of Pabitra Mistri, and, (2) not very consistently with the first ground, that the mortgagor had sold the land to him by virtue of a deed dated 20th June 1943.

(3.) The trial Court decreed the suit, holding that the plaintiff was entitled to redeem, as his previous sale-deed in favour of Pabitra Mistri of the year 1942 had been made ineffective as Pabitra Mistri expressed his inability to meet his obligations under the deed. The Court, also, negatived the alternative defence that the property had been conveyed to the mortgagee himself. On appeal by the mortgagee, the lower appellate Court has dismissed the suit, holding that, in spite of the fact that it was common ground that consideration did not pass under the deed of 1942, nor was there what is popularly called exchange of equivalents under the deed, all the same, as there was not specific stipulation in the deed itself that the title would not pass until the entire consideration money had been paid, title did pass to Pabitra Mistri, and that, therefore, the plaintiff had no locus standi to claim redemption. Hence, this second appeal by the plaintiff.