DWARKA DAS Vs. KISHAN DAS

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of about Rs. 12,000 with interest on the basis of a security bond dated 24 June 1922 executed by the deceased father of the minor defendant. The plaintiff's case is that on the death of the grandfather, Ganesh Das, during whose lifetime his son Gokul Das (the father of the defendant) had already separated, there was a dispute between the other two sons, Kishun Das and Ram Das, relating to the partition of the family property. A will was being set up, alleged to have been executed by Ganesh Das in favour of his widowed daughter and an idol. This suit ultimately resulted in a written compromise which was dated 24 June 1922, and was filed in Court on 26 June. Under this compromise, Kishun Das got the Moradabad Estate together with a sum of money of Rs. 13,500 which was payable by Ram Das. The last portion of this compromise, the interpretation of which is in dispute, referred to a security-bond to be executed by Gokul Das. Gokul Das executed the sceurity-bond sued upon on 26 June 1922, and admittedly handed it over to the plaintiff Kishan Das. The Court passed a decree in terms of the compromise on 4 July 1922 at which date Gokul Das paid Rs. 4,000 in cash to Ram Das which he had agreed to pay under a mortgage-deed taken from Ram Das in his favour. An attempt was made to get the security-bond executed by Gukal Das registered, but on objection being raised by Gokul Das the registration was refused. On the death of Gokul Das, the present suit was instituted for the enforcement of his liability under the security-bond against his minor son.

(2.) The claim was resisted by the defendant on various grounds, the principal ones of which were: (1) The defendant was not bound to discharge the debt at all under the Hindu law. (2) The security bond had been obtained by fraudulent misrepresentation and was voidable and therefore not binding on the minor defendant. (3) The original contract was varied subsequently by the plaintiff with the result that the surety has been discharged. The Court below has decided all these points against the defendant and has decreed the claim. In appeal these points are again pressed before us, and in addition it is also pleaded, that it was a part of the terms of the contract that there should be a separate security-bond executed by Ram Das himself and inasmuch as this condition was never fulfilled the liability of the surety did not come into existence. To take up the last point first, the contention is based on the last portion of the compromise which, translated literally, is as follows: Let it be known that as regards the balance of Rs. 9,500 B. Gokul Das, brother of the plaintiff and defendant 1, shall execute one separate bond and get the same registered up to 26 June 1922.

(3.) The learned advocate for the appellant contends that the intention was that there should be a separate security-bond executed by Ram Das, defendant 1, in addition to his signing the compromise in question. On the-other hand, the learned advocate for the respondent contends that the intention was that Gokul Das, who was the brother of the plaintiff and was. brother of defendant 1, should execute a separate security-bond. We think that an the language of the compromise and the circumstances of this case the interpretation put upon it on behalf of the respondent is correct. Gokul Das,, who was to sign one separate security-bond, was described as the brother of the plaintiff and of defendant 1. The intention was not, that Gokul Das, the brother of plaintiff, and also defendant. 1, should execute two separate security-bonds. It may also be noted that there was no necessity for Ram Das to execute a separate security-bond. He was a party to the suit and his having; signed the compromise, which was going to be incorporated in the decree, was quite sufficient for the purpose of binding him. A separate security-bond was necessary for Gokul Das because he was not a party to that suit.