JAI DEVI KUNWAR Vs. KALYAN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption of the properties sold under a deed dated 18 September 1923. The suit was instituted on 16 September 1924. According to the sale-deed the sale consideration was Rs. 22,000. Out of this Rs. 4,000 were admittedly paid in cash to the vendors, and two sums of money were left in the hands of the vendees for payment to two named creditors under two promissory notes, and three further sums were left in their hands for payment to certain prior mortgagees. It is an admitted fact that the defendants vendees did not discharge any of these previous debts. The plaintiff had actually alleged that the sale consideration was inflated and that the amounts said to be due on the two promissory notes were fictitious. She further claimed that, inasmuch as the defendants who were liable to discharge the previous debts forthwith had omitted to pay off those debts they must make good to the plaintiffs the amount of interest which had accrued on those debts.

(2.) The learned Subordinate Judge came to the conclusion that the question of the genuineness of the two promissory notes should not be gone into in this litigation, as the defendants had not paid off those debts and the plaintiff was not called upon to pay them in this suit. As regards the plaintiff's claim to get credit for the interest, he came to the conclusion that the plaintiff was claiming remedy before any cause of action had arisen. He however remarked: If the plaintiff was in any way damnified hereafter then there would be time enough for her to enforce her cause of action.

(3.) In appeal the first point urged is that the question of the genuineness of the promissory notes should have been gone into. We are of opinion that this contention cannot prevail. In the first place the defendants not having paid off those promissory notes, and the plaintiff not being called upon to pay those amounts, it is wholly unnecessary to decide whether those debts were actually due. Furthermore, it is quite clear that the plaintiff could not be sued by the creditors directly as there is no privity of contract between her and those creditors: Jamna Das V/s. Ram Autar [1912] 34 All. 63. But if those amounts are not fictitious, and the plaintiff does not pay off the creditors, she will of course be liable for payment of those amounts to the original vendors; in case they have to pay those amounts or to suffer loss on account of their nonpayment.