LAXMANLAL K PANDIT Vs. MULSHANKAR PITAMBARDAS

JUDGEMENT

(1.) This was a suit for rent claimed by the plaintiff for a period of two years with interest. The claim was met by a denial that the property belonged to the plaintiff and the defendant explained that, while a criminal prosecution was hanging over his head his pleader Laxmishankar stood bail for his appearance in Criminal Court; and that to indemnify Laxmishankar against any loss which he as bail might suffer, a nominal sale deed and a nominal rent note were passed to Laxmishankar.

(2.) Various issues were raised and decided and ultimately in July 1907, the case came before a Divisional Bench of this Court and an interlocutory judgment was delivered remanding the case back for a trial of certain issues which had arisen. The District Judge's findings upon these issues have now been returned to us, and for present purposes it will be sufficient to notice three of these findings ; they are :- (1). That the defendant executed the sale deed Exhibit 49 and the rent note to ensure the safety of Laxmishankar against any loss which he might suffer tinder his bail bond and for further advances. (2). That the defendant executed the sale deed and the rent note in the name of the plaintiff at Laxmishankar's request, and the plaintiff took the deed in his name with knowledge of the said consideration and purpose. (3). That both the sale deed and the rent no|e are void and illegal.

(3.) Now it will be seen that the first two findings from which the third finding is merely an inference, are findings of fact which neither can be nor have been questioned before us. We must assume the correctness of these findings of fact, and upon that assumption it appears to us clear that the legal consequence follows that the sale deed and the rent note upon which this suit is based are void. The Hon ble Mr. Gokuldas in endeavouring to avoid this conclusion has suggested that the English law as laid down in Herman V/s. Jeuchner (1885) 15 Q.B.D. 561 is not the law in India, inasmuch as under Section 513 of the Criminal Procedure Code, when a person is required to execute a bond with or without sureties, the Court may in most cases permit him to deposit a sum of money in lieu of executing such bond ; and this provision, Mr. Gokuldas suggests indicates that the policy of the English law as expounded in Herman v. Jeuchner. has been abandoned by the legislature in India. But it appears to us that no such inference can properly be drawn from Section 513, for, the deposit there allowed is allowed in substitution only of the bond which the principal himself would otherwise execute, not in substitution of any bond which his surety executes.