ABDUL MAJEED Vs. ABDUL RASHID

JUDGEMENT

(1.) This is a defendant's second appeal against a decree of the lower appellate Court confirming a decision of the Court of first instance decreeing the plaintiff's claim for damages. The matter arose in this way: Abdul Rashid, the plaintiff and his brother Abdul Haq, were the owners of certain property set out in the plaint and which is the subject matter of this dispute. On 18 July 1924, Abdul Haq alone executed a lease of the property in dispute in favour of Abdul Majid, defendant 2, who is the present appellant, and Maqsad Khan. This lease was for a term of seven years at an annual rental of Rs. 500. Shortly afterwards Maqsad Khan executed a sub-lease of his rights to Qadar Bux, defendant 1. On 2nd September 1927, Abdul Rashid mortgaged the whole of the property in dispute in favour of defendants 3 and 4 for Rupees 2,000. On 21 June 1928, Abdul Rashid, executed a usufructuary mortgage of the whole of the property in favour of one Bakkas for five years to secure a sum of Rs. 4,000. Of this sum Rs. 2,173 were left with Bakkas, in order that the latter might discharge the liability due to defendant's 3 and 4 under the prior mortgage, dated 2 September, 1927. Bakkas never discharged this previous liability and some time in the year 1931 he died leaving surviving him his widow, defendant 7, and his five sons, defendants 1 to 5, and a daughter, defendant 6. On 21 December 1932, the mortgagee rights of the deceased Bakkas were sold and purchased by Mb. Sughra Bibi. No attempt was made by the representatives or heirs of Bakkas to discharge the mortgagor's liability under the previous mortgage and consequently, on 10 April 1933, Abdul Rashid brought these proceedings claiming a sum of Rs. 1,607 together with certain interest as damages for breach of the covenant entered into by the deceased Bakkas in the mortgage, dated 21 June 1928.

(2.) It is clear that Bakkas never paid the money and it remains unpaid to-day. He undertook to pay a sum of Rs. 2,173 which had been allowed to remain in his hands, and if payment of such sum had been made the liability of the plaintiff under the mortgage of 2 September, 1927 would have been completely discharged. By reason of the failure of Bakkas, or his heirs to pay this sum the mortgage of 2 September, 1927 is still subsisting and there is due from the plaintiff to defendants 3 and 4 under that mortgage a sum greatly in excess of Rs. 2,173. It is clear that by reason of the non payment of the sum of Rs. 2,173 in June of 1928 the liability under the previous mortgage has very substantially and materially increased. The plaintiff alleges that interest has accumulated upon the sum due under that mortgage and such accumulated interest amounts to Rs. 1,607 which is claimed in this suit. There is no dispute as to this amount and it must be conceded that if the plaintiff is entitled to damages be is entitled to this sum. However it is argued on behalf of the appellant in this case that the plaintiff is not entitled to any damages whatsoever, because in the first place there has been no breach as yet of the contract, and secondly that even if there has been a breach, the plaintiff has not suffered any damages. We are perfectly satisfied that there has been a breach of the covenant contained in the mortgage of 21 June 1928 by which Bakkas, undertook to pay Rs. 2,173 to defendants 3 and 4 to discharge the prior mortgage. No time was stated in which such payment was to be made, and in our view Bakkas was under a liability to pay that sum there and then. His failure to pay up until the date of his death undoubtedly amounted to a breach of contract which has not been remedied by payment by his heirs. We are further satisfied that the plaintiff has a cause of action in this case and that he has suffered Joss for which damages are recoverable.

(3.) The authorities of this Court upon this subject are somewhat conflicting, but in our view the latest cases go to show that where money has been left with a vendee or mortgagee in order to discharge some earlier mortgage and such vendee or mortgagee fails to discharge the liability, a cause of action for damages arises immediately and the vendor or mortgagor need not wait until the property is actually sold or until he is sued or a decree is passed against him before bringing a suit for damages. On the one hand the case in Ishri Prasad V/s. Muhammad Sami 1921 19 ALJ 81, is an authority in favour of the appellants. In that case a mortgage was executed on 12 May 1899, and part of the consideration money was left with the mortgagee to pay off a prior mortgage, it being agreed that the money was to remain with him and that any interest which might accrue on this sum in future would be entirely upon his shoulders and would have to be paid by him when he paid the money. The mortgagee did not pay the money and the prior mortgagee sued and obtained a decree for sale on 14th December 1905 and the mortgaged property was sold in execution on 20th January 1912 and then the remaining property was sought to be sold for the balance of the decree money, and to avert that sale the mortgagors paid off the amount and then brought a suit in 1916 to recover damages. It was held that inasmuch as under the agreement between the parties the mortgagee "had undertaken all responsibility for further interest, and could therefore pay the prior mortgage at any time he pleased, the cause of action did not accrue on the date of the mortgage, but arose only on the date on which the mortgagor was damnified, and the suit, which was governed by Art. 116, Lim. Act, was within time.