MAHADEO PRASAD SINGH Vs. MATHURA CHAUDHARI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for sale on the basis of a mortgage deed dated 18 March 1918, executed by Lal Bahadur Singh in favour of Mathura Chaudhari for Rs. 15,925. The defendants were the sons of the deceased mortgagor. The main ground on which they contested the claim was that in view of an agreement between the parties dated 25 December 1920 the plaintiff's suit was premature and was not maintainable. The learned Subordinate Judge has come to the conclusion that the agreement in question was void and wholly inoperative and was therefore no bar to the present claim.

(2.) On 25 December 1920 Rs. 19,459-14-0 in all were due on the previous mortgage of 1918. On that date a sale deed was executed of certain property by the heirs of the mortgagor in lieu of Rupees 11,500, and for the balance of Rupees 7,949-14-0 the parties entered into an agreement which is printed on p. 19. The execution of the sale-deed in lieu of Rs. 11,500 is referred to in the agreement itself. The stamp paper of this document had been purchased on 23 December 1920 before the sale deed was executed and registered, and there can be no doubt that the two were part and parcel of the same transaction which was entered between the parties. As the terms of this agreement have to be examined at length it would be convenient to give their substance paragraph by paragraph.

(3.) In para. 2 the heirs of the mortgagor, the executants first party, held themselves out as the reversioners to the estate of a Hindu widow, Mt. Ram Dei Kumari, although admittedly an uncle of theirs who was a nearer reversioner was then alive. Apparently both this widow and the uncle were of advanced ages and it was expected that the executants first party would survive both of them. They stipulated that if Mt. Ram Dei died or executed a deed of relinquishment in their favour and in that way they became the owners of certain shares in three villages, Dubaulia, Kowa and Lodhapur, they would execute a sale deed of 6 pies shares in these three villages in favour of Mathura Chaudhari executant, second party, in full discharge of the outstanding amount.