ABU SUFIAN KHAN Vs. MOHDRASHID KHAN

JUDGEMENT

(1.) THIS appeal arises out of a second appeal No. 622 of 1938 in which the Hon ble the Chief Justice on 13 October 1939, allowed the appeal and returned the record to the lower appellate Court with instructions to "dispose of the case according to law and in the light of the above directions." Two questions arise before me now. The plaintiff-appellants purchased a share corresponding to 3 annas 7 pies in the property but according to some family arrangement between the appellant's transferor and his mother and brother, the transferor was given a third share of the rent of this property. It was argued that the appellants should, therefore, be given the same one-third share. I do not think that the arrangement made between members of the same family about rent of this small property should affect the transferee whose share should depend on the amount he has actually purchased. The other question is whether the appellants should be allowed to set off the rent six monthly from the 900 rupees which should have been paid to the mortgagees. If this is allowed the amount due to the mortgagees from 3 August 1934, to February 1938 would be Rs. 1008 odd. I am of opinion that considering that the Hon ble the Chief Justice, at that time ordered that interest should accrue on the 900 rupees due to the mortgagees, it is equitable that the rent which has not been paid for such a long time should be set off every six months. It is possible that the amount of Rs. 484-13-0 was not taken from the Court but has remained deposited since March 1938 but I do not think that the plaintiff-appellants are responsible for this because they paid the money in order to be handed over to the mortgagees. At that time (in March 1938) it was the amount arrived at by the Court and I fail to understand how the plaintiffs are responsible if the appellate Court found that the amount should be Rs. 900. The obvious course was for the defendants to take the money and give notice of appeal at the same time. The defendants would then have been in possession of Rs. 484 for several years. I agree with the appellants counsel that Rs. 484-13-0 should be deducted and the balance due to the respondents in March 1940 is then Rupees 554-5-5.

(2.) THE High Court office will calculate costs according to success and failure throughout. It is alleged that there has been some arithmetical mistake in the lower Court's decree. Rupees 20 for counsel's fee of Mohammad Rashid Khan and Mohammad Bashir Khan, respondents 1 and 2, should not be re-taxed. THE plaintiffs cost should be Rs. 7-10-0 instead of Rs. 5-2-0. Office should consider these two points. Permission to file Letters Patent appeal is allowed.