(1.) This is an application to set aside the order of the Subordinate Judge who dismissed the suit against the second defendant holding that he was an Improper party. The suit was filed by the plaintiff to enforce specific performance of a contract to purchase certain property for Rs. 70,000. There was a mortgage over the property created by the predeeessor-in-title of the first defendant, who was the person who contracted to sell the suit property to the plaintiff, for a principal sum of Rs. 50,000. The first defendant denied that the mortgage was binding on the property on the ground that it was a fraudulent and collusive transaction entered into by the predeeessor-in-title through whom he claims for the purpose of defrauding the creditors and that any consideration passed for that mortgage. The plaintiff who had agreed to purchase the properties, got a varthamanam letter, Ex. O., whereby the first defendant agreed to indemnify the plaintiff against all claims by third persons. The plaintiff in this suit joined both the first defendant who was the person with whom he entered into the contract to sell, and the second defendant who was the person who claimed as a mortgagee under a mortgage created by the predecessor-in-title of the first defendant for a principal sum of Rs. 50,000 the interest on which would amount to a great deal more, the defendants inter se disputing the validity of the mortgage, the first defendant saying that there was no mortgage which can be enforced against the property and the second defendant that it was a valid mortgage.
(2.) Now the difficulty in this case is as to what the plaintiff has to do? If the second defendant is discharged from the suit, the plaintiff would be in the position of having to pay the second defendant the full mortgage-money which the first defendant may draw out, and the day after there might be a suit against the plaintiff on the mortgage under which the second defendant claims, and, if the first defendant's case that the mortgage was fictitious or a sham transaction is not true, then the plaintiff would have to pay that amount over again. It was suggested that the plaintiff might pay the money in Court under Section 83 of the Transfer of Property Act and leave it to the defendants to fight out the question ; but the trouble is that the plaintiff on the date of the suit was merely an individual in possession of an agreement to sell and Section 54 of the Transfer of Property Act says that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and that it does not of itself, create any interest in or charge of such property ; the plaintiff, therefore, is a person who, by reason of the agreement to sell, has no interest in the property.
(3.) As regards the paying, of money into Court under Section 83, the section states that the person who can deposit in Court would be a person who could file a suit for redemption. It says that the mortgagor or any other person entitled to institute such suit (that is a suit to redeem) may deposit the money into Court. Section 91 enumerates the persons who may redeem and a person who has merely got an agreement to sell the property does not fall under any of these categories. So that, the remedy under Section 83 is not open to the present plaintiff s.