SURAJ PRASAD Vs. AGUTA DEVI

JUDGEMENT

(1.) The plaintiff, who has lost in all the Courts, has preferred this appeal under Clause 10 of the Letters Patent against the decision of a learned single Judge of this Court in Second Appeal No. 553 of 1950. It has been referred to this Bench on account of conflict of judicial opinion on the points which have been raised.

(2.) Briefly, the facts of the case are as follows. One Sarju Lal executed a registered zerpashgi bond (Exhibit B) dated the 12th October, 1925, in favour of Bharduli Singh, a predecessor-in-interest of defendants Nos. 1 to 3 in respect o the disputed property, namely, an area of 6 Kathas 4 dhurs in plot No. 211 of village Patti Pachamba, for a consideration of Rs. 49/-. On the 16th January, 1930, Sarju Lal orally sold the mortgaged property to defendants Nos. 4 and 7 (Baban Dubey and Kapildeo Dubey)' brothers of defendants Nos. 5 and 6, for a consideration of Rs. 89/-. On the same date, Sarju Lal executed the receipt (Exhibit D), acknowledging the oral sale and receipt of Rs. 40/- in cash and directing the vendees to redeem the mortgage on payment of Rs. 49/- to Bharduli Singh. Thereafter, the vendees paid Rs. 49/- to Bharduli Singh and redeemed the mortgage. Exhibit C is the endorsement made by Bharduli Singh on the back of exhibit B, acknowledging receipt of the entire mortgage money, i.e. Rs. 49/-. The Courts below have held that Sarju Lal executed the receipt (Exhibit D), and that Bharduli made the endorsement (exhibit C) and delivered possession of the disputed property to the vendees on one and the same day. They have also found that the zerpashgi bond was redeemed by the vendees "at the instance and in the presence of the vendor".

(3.) The plaintiff claims to have purchased the disputed property from Sarju Lal under a registered sale deed dated the 16th May, 1945. He instituted the suit for redemption on the allegation that the defendants refused to receive payment of the mortgage money and to allow the mortgaged property to be redeemed. The Courts below have dismissed his suit on the ground that defendants Nos. 4 and 7 became the owners of the disputed property on the basis of the oral sale to them, hence it is not capable of being redeemed.