MUHAMMAD KHALILUR RAHMAN KHAN Vs. MOHAMMAD MUZAMMILULLAH KHAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought by the plaintiff- respondent to recover a sum of Rs. 20,000 which has been decreed by the trial Court. There is no dispute as regards the facts of the case, on 5 December 1922, Muhammad Abdul Jalil Khan, executed a mortgage-deed in favour of the plaintiff in respect of village Pindaul in consideration of a sum of Rs. 20,000. Abdul Jalil Khan is dead and the defendant is his legal representative. The plaintiff admits that Abdul Jalil Khan was incompetent to mortgage the village at the time of the execution of the deed in suit. The plaintiff therefore sued for a simple money decree. On 3 December 1928 the defendant executed a deed of acknowledgment admitting his liability for the payment of the aforesaid sum. The defendant resisted the claim. He pleaded that the deed set up by the plaintiff was invalid in toto and no simple money decree could be passed in favour of the plaintiff. It was also urged that the suit was not within limitation. Some other pleas were also taken but it is not necessary to refer to them as they were given up. The learned Subordinate Judge decreed the suit holding that the plaintiff was entitled to a money decree that the claim was within limitation. The defendant has come up in appeal to this Court. The plea of limitation was abandoned here and the only question which has been argued on behalf of the appellant is that the plaintiff was not entitled to a money decree on the basis of the deed in suit. The deed on foot of which the plaintiff instituted the suit giving rise to this appeal is printed at pp. 13 and 14 of the paper-book. The material portion of the deed runs as follows: I therefore covenant that I shall pay on demand the said amount without interest to the said Nawab Saheb and for the satisfaction of the said creditor I pledge and hypothecate the property specified as below....If per chance I fail to pay the amount duo under the bond or if I make excuses in paying the same the creditor aforesaid shall have power to realize his mortgage-money by the enforcement of the hypothecation lien....

(2.) It is common ground between the parties that on the date of the execution of this bond, the property mortgaged was under attachment in execution of a decree against Abdul Jalil Khan and the decree had been sent to the Collector for execution. The Collector had leased the property to a lessee under Rule 7, Schedule 3, Civil P.C. Having regard to the provisions of Rule 11, Schedule 3, Civil P.C., Abdul Jalil was incompetent to create a mortgage without the permission of the Collector in respect of the property which could be dealt with by the Collector under that schedule. It is admitted that no such permission had been obtained. The plaintiff's case is that in the deed there is a personal covenant to pay, that it is distinct and severable from the void part of the agreement and that therefore he is entitled to a simple money decree in enforcement of the personal covenant. The defendant asserts in the first instance that there is no personal covenant in the deed and in the alternative, it cannot be enforced as the bond as a whole including the personal covenant is void. I find that in Anson's Law of Contract, p. 254, Edn. 5. the rule of law on the point is stated to be as follows: A contract may consist of several parts; it may be divisible into several promises based on several considerations, and then the illegality of one or more of these considerations will not avoid all the promises if those which were made upon legal considerations are severable from others.

(3.) In Pigot's case (1614) 11 Coke Rep 270 it was held: that if some of the covenants of an indenture or of the conditions endorsed upon a bond are against law, and some good and lawful; that in this case the covenants or conditions which are against law are void ab initio and the others stand good.