MEHARBAN SINGH Vs. PANNA LAL

JUDGEMENT

(1.) This second appeal has arisen in the following manner: On the 14 May 1914, the defendant executed a simple unregistered money bond for good consideration of Rs. 3,999 at 12 per cent simple interest in favour of the plaintiff. The defendant was not liable to pay the amount till 5 June 1917. On the 3 June 1920, an endorsement was written on the back of the bond by one Sumer Singh on the instructions of the plaintiff. This was signed by the defendant. We translate the endorsement as follows: Accounts having been made up the sum of Rs. 6,500 has resulted as principal and interest in which (this is a literal translation: the words are jismen) a usufructuary mortgage of village Samogarh for Rs. 4,000 has been executed today: Rs. 10 in cash have been paid.

(2.) The same day a deed was executed by the defendant in favour of the plaintiff in respect of the village Samogarh. This deed is the "usufructuary mortgage" to which reference is made in the endorsement. The deed is not a usufructuary mortgage.

(3.) It sets forth that in consideration of Rs. 4,000-it is not stated how the figure is arrived at-the defendant transfers to the plaintiff possession of the village of Samogarh with full enjoyment of the usufruct. At the end of twenty years the village is to be restored to the defendant without payment, but during the continuance of the twenty years enjoyment it is open to the defendant to recover possession of the village at any time by payment of "the whole amount due" (kul zare saman). The deed contained a previous interpolation to the effect that the "kul zare saman" of the deed of 14 May 1914 has been taken into account. The deed thus added to the characteristic of a zar-i-peshgi lease, a right to determine the lease by exercise of what approximated to a right to redeem. It probably assumed its form in order not to contravene the restriction of transfer provided by Local Act II of 1903, the parties being governed by the provisions of the Act.