SITA RAM Vs. CHUNNI LAL

JUDGEMENT

(1.) THE plaintiff-appellant has been unsuccessful in both the courts below and his suit for redemption of mortgage of the agricultural land, has been dismissed.

(2.) THE plaintiff-appellant mortgaged his share of the agricultural land measuring 3 'bighas' and 5 biswas' with the defendant-respondent, who is his brother for a sum of Rs. 700/- on 13 8 1962 through a registered mortgage deed. On the same day he also executed an agreement to sell Ex. F/2. THE relevant portion of the agreement reads as under:-

(3.) SHRI Maheshwari, learned counsel for the appellant, submitted that in all the Rajasthan pases some payment of consideration, has been made, which has been treated to be an act in furtherance of the contract, in the present case there has been no such payment and so no act has been performed by the defendant in furtherance of the contract. Ex-facio there appears to be some plausibility in this submission of SHRI Maheshwari. But when by the act of the parties the nature of possession can be changed, as has been observed in Mst. Mule vs. Gokul (7), then by an act of the parties, the nature of debt can also be converted from mortgage debt to sale price and it can be considered to be an act in furtherance of the contract. The defendant mortgagee agreed and acted to convert his mortgage into the sale price In Ratanlal's case (supra) there was no further payment of consideration beyond what was incorporated in the agreement, so in the present case as well the agreement embodies a term who rely the total price of the land is paid to the mortgager vendor by way of adjustment or appropriation. This formed part of the consideration of the agreement and this consideration can be taken to have actually passed at the time of entering into an agreement to sell. It may be stated that the matter does not appear to have been canvassed in this manner before the Madhya Bharat High Court and so it was not considered that such an act of conversion or appropriation of the mortgage money into the sale price, can be considered to be an act in furtherance of the contract by the vendee.