V ALAGARSAMI NAIDU Vs. KATHIA GOUNDAN

JUDGEMENT

(1.) This second appeal arises out of a suit by a mortgagee to recover an amount of Rs. 60 due on the mortgage Ex A dated 19 December 1921 executed by defendants 1 to 5 in favour of the plaintiff. Defendant 6 was impleaded as a subsequent purchaser of the suit hypotheca under Ex. 2 dated 27 November 1924. In his written statement defendant 6 does not merely rely on he subsequent sale deed but upon an earlier transaction. He says in his written statement that the whole site on which the suit house and other houses are suit was part of the survey No. 13 belonging to him. Then he says: In the said Re-survey No. 13 this defendant has built a big bandy stand (vandipettai) and provided it with all conviences for stay of bandies going to and fro on the highway. The said pettai and the shops, houses vacant space etc., round it absolutely belong to this defendant. For the shake of safety and protection to the said pettai, this defendant gave permission to people to build houses there and reside and in the houses built by the defendant 6 all conveinces for tenants have been provided. The people there have no right either to sell, mortgage etc., either the building or the vacant space.

(2.) He also says that he has been paying a tax of Rs. 25 per year to the Government. In support of his right he has pleaded in the written statement. Whatever right it may be called he relies. Upon Exs. C and I Ex. C is the sale deed he gave to defendant 1 for Rs. 60. He says he gave similar deed to others. And Ex C is accomplished simultaneously by Ex. 1 which is a registered agreement executed by defendant 1 to 6. Undoubtely the two ought to be taken together to see the nature of the transaction. Ex 1 says: As I have taken a sale deed from you of the site and house mentioned below, I will be residing in the said site and house. While I so neither, I nor my heirs should not like to reside in the said site and house, we shall reconvey the property to you for a price not exceeding the sale price of Rs. 60.

(3.) The first question arises is what is the effect of agreement like Ex. 1? The courts below have thought that the agreement is therefore void. But I am not satisfied with that mode of disposing of the case Mr. Narayanswamy Ayyar, the learned advocate for the appellant, sell the property to defendant 6 at a favourable price of Rs. 60, the consideration for this agreement being that the house was sold to defendant 1 at the favourable price of Rs. 60. I am willing to accept these suggestions. Probably the house is worth much more than Rs. 60 and because it was given to defendant 1 for Rs. 60 he gives a counter-agreement to resell it, for Rs. 60. But there are difficulties in enforcing this agreement. It is not an agreement absolutely binding on defendant 1 to sell it in a particular time or within any time at all. He is bound to sell it to defendant 6 whenever be thinks of parting with the property.