NAJAF ALI KHAN Vs. MUHAMMAD FAZAL ALI KHAN

JUDGEMENT

(1.) This appeal arises from a suit brought by the plaintiffs-respondents against the defendant-appellants on the basis of a bond, dated 23 January 1917.

(2.) On one and the same day the defendant, Najaf Ali Khan, signed what purports to be a zarpeshgi lease in his favour executed by Narain Das, defendant second party, in respect of the zamindari rights in certain land. The lease I construe to be a lease of the property in consideration of the execution by the lessee of the bond now sued upon. The bond has not been printed, but both the lease and the bond show that the transaction effected by both the deeds was that the lessee was regarded as having discharged before occupation the total rent due for the whole period of occupation by means of his execution of the bond now sued upon. That bond has not been printed, but was consistent with this interpretation.

(3.) The lower Court was asked to hold that the two documents, in effect, resulted merely in a lease, and not a zarpeshgi or advance lease but one requiring lease money in the instalments and on the date fixed by the bond. In other words it was asked to hold that the effect of the bond was merely to supply the instalments and dates on which the lease money was to be paid, which details have been omitted from the lease. It was asked to hold this, because the defendant's contention was that he could not be required to pay the lease money since he had lost possession of the leased property by the action or at any rate with the connivance of the plaintiffs. Alternatively it was asked to hold that the rate of interest imposed on failure by the defendant Najaf Ali khan to pay up any instalment was penal, being 3 1/2 per cent. per month compound interest.