MAHTAB SINGH Vs. COLLECTOR OF SAHARANPUR

JUDGEMENT

(1.) This is an appeal by the defendant Mahtab Singh, and arises out of a suit brought in the following circumstances: Raja Balwant Singh, whose estate is now under the superintendence of the Court of Wards, owned villages Nejabatpur and Jamaluddinpur which were subject to a common charge of Rs. 75,625 on 5th August 1921, under a mortgage deed in favour of Kunwar Sen and Bansidhar. On 26 July 1921, Raja Balwant Singh agreed to sell village Nejabatpur to the appellant Mahtab Singh for a sum of Rs. 73,725. Similarly he agreed on the same date to sell village Jamaluddinpur to Raghuraj Singh for a sum of Rs. 17,000. It was agreed that out of the consideration of Rs. 73,735 payable by the appellant for village Nejabatpur, a sum of Rs. 58,625 would be paid to the mortgagees Kunwar Sen and Bansidhar. The village was in possession of a lessee who had paid rent in advance and who was entitled to retain possession for six years. The rent for the six years thus received by the vendor in advance amounted to Rs. 14,100, which was to be credited to the vendee and deducted from the price payable by the latter. This was to compensate Mahtab Singh for not obtaining possession for six years during which the lessee would retain possession in terms of her lease. Rs. 1,000 was paid in cash as earnest money. These three sums make up the total of Rs. 73,725 Raghuraj Singh, who had agreed to purchase the village Jamluddinpur, was to pay the entire sum of Rs. 17,000 the agreed price of that village to the mortgagees Kunwar Sen and Bansidhar. It should be noted that the sums agreed to be left with the vendees for payment to the mortgagees were just sufficient to discharge the encumbrance in favour of Kunwar Sen and Bansidhar.

(2.) Raja Balwant Singh did not execute the sale deeds as agreed by him in favour of Mahtab Singh and Raghuraj Singh, on the contrary sold the two villages to BishunchanH and Dayashankar on 5 August 1921 for Rs. 1,04,000, out of which Rs. 75,625 was left with the vendee for payment to the mortgagees Kunwar Sen and Bansidhar. These vendees also agreed to accept Rs. 14,100 as compensation for loss of the usufruct in consequence of the lessee's possession for six years. They paid Rs. 5,000 as earnest money, and a sum of Rs. 9,11,75 before the Sub- Registrar at the time of the registration of the deed. Mahtab Singh brought a suit for specific performance against Balwant Singh and his vendees Bishunchand and Dayashankar in terms of the agreement of sale already referred to Raghuraj Singh did not bring any action and acquiesced in the breach of agreement to sell village Jamaluddinpur. The Court of first instance decreed the suit of Mahtab Singh on 11 May 1922, and directed execution of a sale deed by Raja Balwant Singh as agreed. On the failure of Raja Balwant Singh to execute the sale deed in pursuance of the decree passed in the suit for specific performance the Court had the sale deed executed and completed on 22 November, 1922. Normal delivery of possession was given on 23 January 1923. This however did not imply dispossession of anyone, as according to the agreement of sale the lessee was to continue in possession for six years. The estate of Raja Balwant Singh was taken under the superintendence of the Court of Wards shortly afterwards in the same year. In the meantime Bishunchand and Dayashankar preferred an appeal to this Court from the decree passed in favour of Mahtab Singh in the suit for specific performance. Their appeal was dismissed on 27 April 1926.

(3.) It was not till 29 June 1926, that Mahtab Singh offered to pay Rs. 58,625 out of the consideration of the sale to the mortgagees Kunwar Sen and Bansi dhar. His deposit under Section 83, T.P. Act, was not accepted by the mortgagees in full satisfaction of the charge, existing on the two villages. They however agreed to accept the same in part satisfaction of the mortgage money due to them on the date of deposit. Mahtab Singh agreed to the deposit made by him being accepted in part satisfaction of the encumbrance. No payment seems to have been made by Bishunchand and Daya Shankar out of the consideration for sale of village Jamaluddinpur. It should be mentioned that Rs. 58 625 was believed to be due to the mortgagees in respect of the proportionate charge on village Neabatpur on 26 July 1921. By 29 June 1926, when Mahtab Singh actually deposited that sum that portion of the charge had considerably increased. On 17 November 1926, the Court of I Wards paid Rs. 52,752-29 in full satisfaction of what remained due to the mortgagees Kunwar Sen and Bansidhar in, respect of their mortgage. The major part of this amount represented the encumbrance on village Jamaluddinpur. It is not disputed that it included a sum of Rs. 19,352 which was the interest on Rs. 58,625 accruing between the date of the sale deed in favour of Mahtab (i.e., 22 November, 1922) and the date of deposit by him.