ALTAF BEGAM Vs. BRIJ NARAIN

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for cancellation of a sale-deed dated 2 September, 1921 executed by the plaintiff in favour of the defendant, and in the alternative for a recovery of the amount of the sale consideration. Under a hypothecation bond dated 21 September 1913 the plaintiff's husband had undertaken to pay her a monthly allowance of Rs. 75 and had hypothecated his village Nagphan Risuya valuing the deed at Rs. 10,800. There were certain misunderstandings between the husband and the wife, and it is an admitted fact that she could not for a long time recover her monthly allowance. Eventually she sued her husband for recovery of the arrears and in execution of her decree put the village for sale at auction. It was purchased by Hakim Zakir Husain Khan for a small amount, as the sale was apparently subject to the continuing charge. Thereafter she brought a second suit against her husband and the purchaser and obtained a decree on 28 February 1920 for about Rs. 5,554. This decree also remained unrealized. On 2 September, 1921 she executed the sale-deed in dispute in favour of the contesting defendant Brij Narain.

(2.) The sale-deed as it stands purported to transfer the decretal amount aforementioned, the amount of her maintenance allowance which had fallen due since the decree and the future amounts which would fall due during the rest of her life with all rights to realize the same. The sale was for Rs. 7,500 which were to be paid in certain fixed instalments. There was a special covenant for forfeiture which we will discuss later on. The plaintiff's case was that she being a pardanashin and uneducated lady did not understand the terms of the deed thoroughly, which were not explained to her; that the defendant and her pairokar colluded with each other and falsely represented to her that only the arrears which had fallen due up to date were being transferred, and that she was never told that her future maintenance allowance for life would also be sold under the deed. She further asserted that there was an express understanding that if the defendant should make any default in the payment of any instalment, he would not be entitled to get back the amount received and the sale-deed would be cancelled, and that accordingly as there were defaults made the sale-deed has become void and that it is invalid in law. These allegations were refuted in the written statement in which it was pleaded that the plaintiff executed the document after fully understanding its terms, that the penal clause was unenforceable and that it was never agreed that the sale itself would be cancelled.

(3.) The Court below has decided most of the issues against the plaintiff, but upheld her right to claim a forfeiture of Rs. 1,500 and has given her decree for the unpaid balance with interest. The plaintiff has appealed and the defendant has filed cross-objections.