HARIBHAI HANSJI Vs. NATHUBHAI RATNAJI

JUDGEMENT

(1.) In this case the plaintiff used formally to redeem but substantially to recover possession of the property mentioned in the valatdan patta dated the 10th of June 1902. Several defences were raised to this suit on behalf of defendant No. 1. It was held by the trial Court that the document called the valatdan patta was a mortgage, that the plaintiff was entitled to recover possession, and that he was liable to give certain compensation to the defendant as claimed by him. The decree of the trial Court was confirmed subject to a slight variation as to interest by the lower appellate Court.

(2.) The plaintiff has now appealed and has urged that the order of the lower Court allowing compensation to the defendant is wrong, firstly because the bond is void under Section 257 A of the Code of Civil Procedure of 1882, and secondly because the bond is void in virtue of the provisions of the Bhagdari Act. It is contended that no compensation under Section 65 of the Indian Contract Act should be allowed, as it must be assumed, in the absence of any evidence to the contrary, that at the time when the agreement was entered into, the parties were aware of the real nature of the transaction.

(3.) As to the first point, from the recitals in the document, the amount of the bond does not appear to be in excess of the decretal amount. There is no evidence in the case to show that at the date of the bond the amount due under the decree was less than the amount of the bond. The appellate Court has observed that in this case the bond appears to have been taken for far shorter amount. Under these circumstances I am of opinion that the bond is not proved to be void in virtue of Section 257A in this case. It is not necessary, therefore, to consider the question whether compensation under Section 65 of the Contract Act could be allowed, if the bond were void under Section 257 A.