ODE RAM Vs. CHHIDA SINGH

JUDGEMENT

(1.) This revision has arisen out of a suit brought by the plaintiff for recovery of Rs. 200 with interest thereon in the Court of Small Causes at Bulandshahr. The suit having been dismissed the plaintiff has filed this revision under Section 25, Provincial Small Cause Courts Act. The suit was, according to the plaintiff, on the basis of a bond dated 7 May 1934 for Rs. 200 and the plaintiff brought the suit on 6 May 1940 for the recovery of the amount and for interest thereon. The defendant alleged that the document dated 7 May 1934 was a zarepeshgi lease of ex-proprietary plots for a period of seven years. The zar-i-peshgi lease or mortgage was, there, fore, invalid and the plaintiff had no cause of action to maintain the suit. The defendant had further pleaded that the plaintiff had remained in possession for five years and had himself given up possession and that the suit was barred by limitation. The learned Judge framed three issues of which only issue 1 is relevant, as to whether the plaintiff had a right to sue. On the other two issues the learned Judge decided in plaintiff's favour. As regards issue 1 the learned Judge held that the zarepeshgi lease was a void document and therefore no suit could be brought on the basis thereof but the plaintiff was entitled to a refund of the sum of Rs. 200 paid by him under Section 65, Contract Act. But a suit under that section should have been brought within three years of the contract, the suit having been filed almost at the end of six years, he held that it was barred by limitation.

(2.) Learned Counsel for the applicant has urged; before us that the suit was wrongly dismissed on the ground of limitation and that the suit should have been decreed. Learned Counsel for the applicant relies on a term in the document dated 7 May 1934 to the effect that in case the lessee is not able to get possession of the property or is dispossessed on account of any action taken by the lessor or by any third party or on account of any legal defect or flaw, the lessee will be entitled to recover the lease money with interest thereon. Learned Counsel argues that even though that part of the lease under which the plots were given as a sort of security for the loan may be bad, yet this part of the covenant is entirely separable from the first part and should be enforced. His argument is that the real transaction between the parties is that of a loan and if for some reason, the security given under the document is not available to the plaintiff the document itself may be taken as a simple bond and a suit be maintained on the terms contained therein.

(3.) The question about the validity of such transactions has been agitated in the Courts in this Province now for a number of years and so far as we can find this Court has always held that such transactions were invalid. The Board of Revenue has taken the other view that a usufructuary mortgage of an occupancy holding by a tenant was only voidable against the landlord and as between the mortgagor and the mortgagee it was a perfectly valid transaction. These cases were recently considered by a Full Bench of this Court reported in Ghassu V/s. Babu Ram ( 44) 31 A.I.R. 1944 where, this Court held that if the matter had been res integra the Bench might have examined the question in detail but it was no longer possible to unsettle the law and to go back to first principles. We have, therefore, to start with this assumption that the zarepeshgi lease was a void transaction. The first question for consideration is whether it is possible to base a claim on the personal covenant contained in the bond, the bond being invalid as a mortgage or a zarepeshgi lease. Two cases of this Court have been cited before us for the proposition that a suit on the personal covenant must also fail as the alternative promise cannot be separated from the main document which was illegal, see Tulshi Ram V/s. Sat Narain ( 21) 8 A.I.R. 1922 All. 392, per Sulaiman and Gokul Prasad JJ., and Har Prasad V/s. Sheo Govind ( 22) 9 A.I.R. 1922 All. 134, per Lindsay and Stuart JJ.