Judgement

Law. Rep. 67 Ind. App. 431 ( 1939- 1940) Babu Nisar Ahmad Khan V. Babu Raja Mohan Manucha

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Consolidated Appeals (No.88 of 1938) from a decree of the Chief Court of Oudh (August 18, 1936), which modified a decree of the Additional Subordinate Judge of Sultanpur (October 30, 1933).

The questions at issue in these consolidated appeals were, first, whether a certain mortgage deed and a deed of further charge executed in 1919 were void or voidable by reason of undue influence, and, secondly, whether the said deed of further charge was void or voidable by reason of para.11 of the Third Schedule to the Code of Civil Procedure, 1908, because it was executed without the written permission of the collector.

The facts appear fully from the judgment of the Judicial Committee.

The Subordinate Judge held (inter alia) that the deed of further charge, in respect of which the collectors permission had not been obtained, was void ab initio, and that the mortgagor was not liable to make any payment thereunder.

The Chief Court (E. M. Nanavutty and H. G. Smith JJ.) were of opinion that the deed of further charge fell within the words " discovered to be void occurring in s. 65 of the Indian Contract Act; that though the deed failed as a mortgage the mortgagor, as he sought equity, must do equity; and that the deed contained a personal covenant to pay, the enforcement of which was not barred by limitation, and that the mortgagor, who in his action had claimed repayment of the money due in respect of the mortgage and the deed of further charge, was entitled to recover. The appeal is reported at ( 1936) I.

L. R. 12 Luck. 435.

1940. June 4, 5, 6. J. P. Eddy K.C. and H. D. Cornish for the appellant.

R. F. Roxburgh K.C. and L. M. Jopling for the respondents.

July 18. The judgment of their Lordships was delivered by MR. M. R. JAYAKAR. These proceedings arise out of two mortgage deeds, exhibits 3 and 5, executed on January 18, 1919, and August 14, 1919, respectively. The respondents father, Motilal, was the mortgagee, and the appellants father, Yar Mohammad Khan, the mortgagor.

The events which led to the present litigation are as follows By a mortgage deed, dated July 8, 1908, Mohammad Ewaz Ali Khan, the appellants grandfather, who was the Taluqdar of Mahona, District Sultanpur, in Oudh, mortgaged his estate, consisting of twenty-six villages, to the Allahabad Bank, Ld., for securing payment of a sum of Rs. 1,50,000, with compound interest at the rate of 7 per cent, per annum, with half-yearly rests. In 1914, the bank instituted a suit against the mortgagor and certain transferees from him, including his wife, Saifuran Bibi, and on April 12, 1915, a preliminary decree was passed for Rs. 1,77,001-13-9, with interest and costs, to be paid by October 12, 1915, and, in default, the mortgaged property was to be sold. On July 24, 1915, the mortgagor died, and his son, Yar Mohammad Khan, succeeded to the taluqa. On June 17, 1916, a final decree was passed for the amount of Rs.2,05,382-12-6 against Yar Mohammad Khan and others. The bank instituted proceedings for executing the decree in the Court of the Subordinate Judge at Sultanpur, who, on February 5, 1917, transferred the case to the Court of the Deputy Commissioner at Sultanpur for execution under the provisions of s. 68 of the Civil Procedure Code ( 1908). It may be noted that the Deputy Commissioner had the powers of a collector under that section.

On March 6, 1918, Yar Mohammad Khan applied to the Deputy Commissioner for leave to pay the decretal amount by instalments, or under some other arrangement intended to save the estate. Thereupon, a revenue officer, called the sale officer, reported to the Deputy Commissioner on June 11,

Law. Rep. 67 Ind. App. 431 ( 1939- 1940) Babu Nisar Ahmad Khan V. Babu Raja Mohan Manucha

181

1918, that the debt could be discharged either by taking the property into direct management or by mortgaging or letting it in perpetuity. Inquiries about the last two alter