BECHAN SINGH Vs. KISHUN LAL

JUDGEMENT

(1.) THE facts out of which this appeal arisen are as follows. On the 4 of October 1914 the plaintiff sold a house to Musammat Jillo, defendant No. 1, for Rs. 1,800. It was stated in the sale deed that out of the consideration money Rs. 900 was paid in cash and that a mortgage of the house had been given for the balance. It was quite clear that the consideration for the sale was the mortgage plus the balance in cash. On the 5 of October 1914 Musammat Jillo executed the mortgage. Defendants Nos. 2 and 3, Bechan Singh and Bishnath Singh, appellants here, brought a suit to pre-empt the sale and they made both the plaintiff and Musammat Jillo parties to it. That suit was compromised between Musammat Jillo and the appellants. THE mortgagee plaintiff was exempted from the suit. According to that compromise it was agreed that Musammat Jillo should receive in cash Rs. 1,375 and it was stated that, although the appellants did not admit the validity of the mortgage which had been executed by Musammat Jillo in favour of the plaintiff, nevertheless if Musammat Jillo was held liable on that mortgage they undertook to pay whatever her liabilities might be. This suit was brought by the plaintiff on his mortgage and he made Musammat Jillo the first defendant and Bechan Singh and Bishnath Singh defendants Nos. 2 and 3. THE main defence was, that the mortgage was not genuine and that, in any case, it was not binding upon the property. THE first Court decreed the claim in part against Musammat Jillo by giving a simple-money decree against her and dismissed it as against the present appellants. THE judgment of the Trial Court proceeded chiefly on the case of Kamta Prasad V/s. Sohan Bhagat 3 Ind Cas 782 : 32 A 45 : 6 A.L.J. 963 On appeal by the plaintiff the learned Judge held that the case of Kamta Prasad v. Sohan Bhagat 3 Ind Cas 782 : 32 A 45 : 6 A.L.J. 963 was not applicable to the facts here and in that opinion we agree. In that case the mortgage was executed for a different debt altogether although both the sale and the mortgage were of the same date. Here we hold that although the mortgage was actually executed a day after the sale, nevertheless the mortgage was a part of the consideration for the sale and mast be regarded as part of the same transaction. In this view the case of Kamta Prasad V/s. Sohan Bhagat 3 Ind Cas 782 : 32 A 45 : 6 A.L.J. 963 has no application. It must be remembered that the pre-emptors in this case knew of the existence of the mortgage because it was mentioned in the sale-deed under which they pre-empted. It was open to them as prudent men to see that the mortgage was paid off before the money which they paid into Court reached the hands of Musammat Jillo. We cannot see how the plaintiff, who was no party to the compromise, can be adversely affected by anything they chose to do behind his back. In our opinion the view taken by the Court below is right. We, therefore, dismiss this appeal with costs including in this Court fees on the higher scale.