DESRAJ Vs. RALLI RAM

JUDGEMENT

(1.) THIS is a second appeal directed against an order of the learned Additional District Judge Jammu dated 19 -11 -1955, whereby a decree with costs for Rs. 1,524/ - has been passed in favour of the plaintiffs against the defendant. It was further ordered that the defendant will pay future interest at the rate of six per cent per annum from the date of the decree to the date of the payment of the decretal amount.

(2.) THE facts that have given rise to this litigation are simple. One Mt. Bhagos mortgaged 25 kanals and 7 marlas of land by means of a registered deed dated 26th Katik 1989 Bikrami for a sum of Rs. 1,250/ - in favour of the firm Mangtu Shah Ralla Ram plaintiffs. The mortgage was with possession and was to subsist for a term of ten years. Mt. Bhago mortgagor died in the year 1998 Bikrami and was succeeded by one Ghulam Nabi. Ghulam Nabi sold 57 kanals and 18 marlas" of land including the 25 kanals and 7 marlas that were already mortgaged by his predecessor -in -interest Mt. Bhago, to L. Desraj defendant for a consideration of Rs. 8,000/ -. This was done on 14th Maghar 1998 Bikrami. Possession of the land sold was given to L. Desraj. It may be stated here that the parties to the sale deed did not lose sight of the mortgage which was entered into by Mt. Bhago with the plaintiffs and therefore along with the execution of the sale deed effected by Ghulam Nabi in favour of Desraj a sum of Rs. 1,250/ - which equalled the consideration of the mortgage was kept in trust with the purchaser for payment to the plaintiffs -mortgagees and a note was made in the sale deed to this effect. But while the purchaser received the sum of Rs. 1,250/ - for payment to the mortgagee, yet he did not make any payment to him. The result was that the plaintiff -mortgagee brought the present suit for a sum of Rs. 1,875/ - a figure arrived at by the plaintiffs by adding Rs. 625/ - as interest to the original sum of Rs. 1,250/ -. The trial Court dismissed the plaintiffs suit on the ground that as the mortgage was a usufructuary one. the plaintiffs were not entitled to bring in a suit for the mortgaged amount, but should have sued for possession of the mortgage property. This reasoning of the trial Court did not find favour with the learned Additional District Judge who, as already stated, passed a decree for Rs. 1,524/ - - The defendant has now come up in second appeal to this Court.

(3.) THE only point taken before us by the defendant -appellants learned counsel is that the plaintiff was a stranger to the contract of sale, and therefore, he was not entitled to receive any benefit from such a contract. It is true that a stranger to a contract cannot derive any benefit from a contract to which he is not a party, but the case would certainly be different if as a result of a contract between two parties a trust comes into existence for the benefit of a third person. In such a case the third person is certainly entitled to seek the benefit. Now in the present case what we find is that there is a specific provision in the sale deed to the effect that Rs. 1,250/ - have been placed in trust with the purchaser for payment to the mortgagee. It is indeed simply preposterous on the part of the purchaser to plead that though Rs. 1,250/ - were kept in trust with him, yet he should be absolved from making any payment to the person for whom the said money was kept in trust with him. Taking all this into consideration, we -do not find any force in this appeal which is rejected with costs. Cross objections are also dismissed.