NATHU LAL Vs. MT GOMTI KUAR

JUDGEMENT

(1.) The suit out of which this appeal arises was brought on 8 September 1928, by the appellants (plaintiffs 3-5) and respondents 29 and 30 (plaintiffs 1 and 2) against respondents 1-28 (defendants 1-28), claiming redemption of certain properties on the allegation that the deed of sale of the said properties dated 25th March 1844, executed by one Gulab Singh (the representative in interest of the plaintiffs) in favour of Het Ram and Tula Ram (the representatives-in-interest of the defendants) and an alleged agreement to transfer the said properties bearing the same date and executed by Het Ram and Tula Ram in favour of Gulab Singh formed one transaction and constituted a mortgage by conditional sale of the properties comprised in the sale deed. In the plaint, plaintiffs mentioned 26 March 1844, as the date of the mortgage completed by the execution of the two documents and they filed with the plaint a certified copy of the said sale deed (which is marked Ex. I) bearing date 26 March 1844, and the original agreement to transfer of the same date (which is marked Ex. 6). The defendants, who represent the original mortgagees and their alieness, filed separate written statements, in which they denied the right of the plaintiffs to redeem on various grounds. On 15 April 1929, the Munsif, before whom the suit was filed, framed ten issues, of which only the following is now material : Did Gulab Singh execute a sale deed in favour of Tula Ram and Het Ram on 26 March 1844, and did the latter on the same date execute an agreement to release the property in favour of the former as alleged on behalf of the plaintiffs? If so, by these documents did the parties intend to create a mortgage by conditional sale ?

(2.) On the same date, defendants 3 and 4 filed in Court the original sale deed, which is marked Ex. A and bore the date 25 March 1844. As this date did not correspond with the date in the certified copy filed with the plaint, the plaintiffs applied on 23 April 1929 for permission to amend the plaint by altering the date 26 March to 25 March. The ground on which this amendment was sought was that 26 March was written on account of a clerical error but the correct date was the 25th. This application was opposed by the defendants on various grounds. The Munsif, however, allowed the amendment of the plaint by his order dated 29 April 1929. The issue was thereupon amended by the addition of the words "now in view of the amendment of the plaint, 25 March 1844," after the words "26 March 1844," occurring in the issue as originally framed. As the issues involved in this case depend upon the wording of the two documents, it will be useful to set out their material portion : EXHIBIT A.-SALE-DEED I, Gulab Singh.....do make a valid and solemn declaration as follows: Five biswas of zamindari property (specified in the deed) are by right of inheritance in my proprietary possession and enjoyment. Up to the time of this sale, which is correct, valid and free from the rights of others the property was in my proprietary possession and enjoyment. Now I have sold the above biswas with all the rights and appurtenances ... for Rs. 2550 of Kaldar coins to Het Ram and Tula . . . The sale is valid, legal, correct and enforceable. It is free from pernicious and false conditions. I have received the entire amount mentioned above from the said vendees and have appropriated the same and made over the said property sold to them. Exchange of consideration has taken place between the parties. The vendees have ceased to have any claim in respect of the sale consideration and I, the vendor, have ceased to have any claim in respect of the said biswas sold. If in future anyone comes forward as a partner and co-sharer of the said property sold, I shall be liable to set up a defence in respect thereof. Hence, I, in a sound state of body and mind, have executed these few presents by way of a sale deed, so that it may serve as evidence and be of use whenever needed. Dated 25 March 1844. (Sd.) Gulab Singh. EXHIBIT B.-AGREEMENT TO RELEASE. Thakur Gulab Singh has sold (paper torn) the said qasba to these executants for Rs. 2550 of Kaldar coins and the mutation of names will be effected in the Nizamat office, District Moradabad. Hence we have covenanted and given in writing that whenever Thakur Gulab Singh, vendor of the said village, or his collateral heirs pay the amount of the sale deed in a lump sum after expiry of the period of 25 years, i. e., with effect from 1251 Fasli to 1275 Fasli, these executants or our heirs shall willingly get the names of Gulab Singh or his heirs recorded in and our names and those of our heirs expunged from the papers of the Nizamat Court, District Moradabad. We or our heirs shall put forth no excuses. If, perchance, we or our heirs put forth any excuse in accepting the amount of the sale deed in respect of the said village, Gulab Singh or his heirs shall be authorized to deposit the amount of the sale deed in the Hon'ble High Court, get their names recorded and our names or those of our heirs expunged. We or our heirs shall have no objection. After expiry of the period of twenty-five years, Thakur Gulab Singh or his heirs shall be authorized to pay the amount of the sale deed whenever they may like it and get the property sold released from us or our heirs and representatives. We or our heirs shall have no objection. If we do so, it shall not be entertained in the Nizamat Court of the High Court. Hence we have executed these few presents by way of a conditional agreement, so that it may serve as evidence and be of use whenever needed. Written on 26 March 1844, corresponding to Chait Sudi 6th, 1251 Fasli. Signature of Het Ram aforesaid, Signature of Tula Ram aforesaid.

(3.) It may be mentioned that the agreement to release, when it was filed with the plaint, had two holes, one just above and partly eliminating the date 26 occurring at the end of the document and the other after the words, "has sold" occurring in the first line. On 18 May 1929, when arguments were being heard, respondent 15 made an application alleging that the holes were made subsequent to the filing of the said document in Court. The Munsif enquired into the allegation and held that it was utterly baseless. On considering the effect of the torn parts of the document, he was of opinion that they were of no consequence and that the document was genuine. As the document purported to be more than 30 years old and was produced from proper custody, he admitted it, exercising the discretion vested in him under S. 90, Evidence Act, to presume that the signatures and attestations were genuine. On the main issue the Munsif held that Gulab Singh executed the sale deed (Ex. A), in favour of Het Ram and Tula Ram on 25 March 1844, and, on the same date, Het Ram and Tula Ram executed the deed of agreement (Ex. B) in favour of Gulab Singh and that by these two documents the parties intended to create a mortgage by conditional sale. Accordingly, he ordered redemption of the property on payment of Rs. 2550 to defendants 3 to 6, 8 to 18 and 21 to 26 within six months. The property to be redeemed was specified in the decree.