JAGGO BAI Vs. HARI HAR PRASAD SINGH

JUDGEMENT

(1.) This is an appeal, by one of the two defendants in an action, from a decree of the High Court of Judicature at Allahabad, whereby the present appellant was ordered to pay to the plaintiff in the action, the respondent Rai Bahadur Hari Har Prasad Singh (hereafter called the "respondent") the sum of Rs. 26,000, with interest thereon at the rate of 4 per cent, per annum from 16-12-1928, down to the date of payment. The other person named as a respondent, Seth Beni Chand, is not before their Lordships' Board and no question arises as to him.

(2.) The relevant facts are as follows: On 18-2-1921, one Babu Bindeshwari Prasad executed a mortgage of a village called Nayagaon in favour of the appellant and her son Seth Beni Chand to secure a total sum of Rs. 60,000 with interest. On 16-12-1928, the appellant signed a document whereby, after referring to the mortgage of 18-2-1921, she stated: "I, the executant, myself paid the entire amount of debt from my own pocket. As I am a pardanashin lady I got the name of Seth Beni Chand entered in the mortgage-deed by way of precaution. At present I stand in need of money and it seems impossible for me to realize the amount of the document aforesaid."

(3.) The remainder of the document, as set out in the judgment of the High Court, is as follows: "Accordingly negotiations for transfer of the document aforesaid together with all the rights were started with Rai Bahadur B. Harihar Prasad Singh through B Girja Sanker Vakil of Lucknow and, it has been settled that I shall transfer the amount of the mortgage-deed aforesaid with interest together with all the rights and powers for a sum of Rs. 52.000 and I shall see that the Rai Bahadur aforesaid acquires the entire property permanently. In case the legal advisers of the Rai Bahadur aforesaid consider that I would not be in a position to transfer the entire property mentioned in the mortgage-deed free from all defects and disputes, unless Seth Beni Chand is made to join the deed of transfer, I shall transfer to the Rai Bahadur aforesaid one-half of the property mentioned in the document aforesaid for a sum of Rs. 26,000 without raising any plea or objection. Whenever within three years the Rai Bahadur aforesaid wants I shall execute the deed of transfer in respect of the mortgage-deed, dated 18-2-1921, and have it registered in any way and in favour of anyone proposed by him. For the present, I have already received a sum of Rs. 7000 out of the amount agreed upon by means of a cheque No. 4-A 19,887, dated 28-11- 1928, and I have this day received Rs. 19,000 by means of cheque No. 4-A 19,893, dated 16- 12-1928, i.e. in all I have received a sum of Rs. 26,000. At the time of compliance and completion of the deed of transfer I shall, as directed by the Rai Bahadur aforesaid, allow credit for the sum of Rs. 26,000 and accept the balance of the amount settled, whatever it might be, subject to the terms noted above." By this document, as their Lordships construe it, the appellant agreed that she would either transfer the mortgage to the respondent or if the respondent's legal advisers took a certain view, she would transfer to the respondent "one half of the property mentioned in the document aforesaid." It is not necessary to consider how the latter form of transfer would have been framed or what would have been its effect; for reasons which will appear later, these questions did not arise in either of the Courts in India, The document does not contemplate that Seth Beni Chand shall be a party to the proposed transfer, either of the whole or the half, nor does it contemplate, that he shall receive any part of the purchase price. It is clear from other documents that the appellant and her son were far from friendly at this time.