B.K. Chaturvedi, J

Respondent (Plaintiff) Satyanarayan is the son of Mangal. He filed a suit alleging that on 20-8-1938 Ramdayal, as the manager of joint Hindu family, consisting of himself and his two sons Dwarkaprasad and Shardaprasad, executed a registered sale-deed in respect of the mortgaged fields Khasra Nos. 125/2, 126 and 128 of mouza Dehari, which were his absolute occupancy lands, in favour of Mangal, the Plaintiff's father, for a consideration of Rs. 950. These fields were mortgaged with possession with the Defendants Nos. 1 and 2, for a consideration of Rs. 450. These Defendants Nos. 1 and 2 were also members of the joint Hindu family. Ramdayal needed money to pay off the arrears of land revenue. The sale-deed is dated 20-8-1938, and the material portion of the recital therein is as follows:

We are in acute necessity of paying the malguzari rent. Therefore, we absolutely sel' to you for ever the absolute occupancy land in our possession; fields No. 125/2, No. 126 and No. 128, situate at mouzu Dehri, Tahsil and District Hoshangabad, for a consideration of Rs. 950. The sole land is mortgaged with Shyamlal son of Govindram Brahman, resident of Itarai, Tahsil Hoshangabad, with possession with profits in lieu of interest in consideration of Rs. 450. Hence you shall pay the mortgage money and consideration of Rs. 42-8-0 malguzari, in all Rs. 492-8-0, in Baisakh Sudi 15 Samvat 1996 and obtain a receipt (thereof) and may take possession of the sold land in Baisakh. We will have no objection. We have already taken the rest of the consideration money of Rs. 112 by way of earnest money and we shall take Rs. 303 in presence of the Sub-Registrar at the time of registration. In this way, you shall pay Rs. 42-8-0 of consideration to the malguzar as Nazrana. After receiving the amount of sale-deed of Rs. 950, we have executed the deed of sale in respect of the aforesaid land, out of our free will and pleasure.

On 1-5-1939 Mangal sent a registered notice to the Defendants (mortgagees) and sent Rs. 403 by money-order as redemption price calling upon them to redeem the mortgage. The Defendants received the amount, but did not take any farther action. Therefore, the Plaintiff, who is the son of Mangal, brought a suit for redemption of the mortgage, dated 21-8-1936, against the Defendants-Appellants. The suit was decreed by the trial Court and it was ordered that the Plaintiff could redeem the mortgage by paying Rs. 450 to the Defendants. Against this decree, an appeal was taken to the Additional District Judge, Hoshangabad, who dismissed it with costs. The Defendants have now come in second appeal before this Court.

Shri R.L. Sharma, learned Counsel for the Appellants, urges that their case was that Ramdayal and his son Dwarkaprasad had only agreed to sell the fields in suit to Mangal and that the sale-deed was scribed on 20-8-1938 for a consideration of Rs. 950. A part of the consideration was paid before the execution of the document and the remaining was to be paid within a fortnight. Then, the vendors demanded the balance of consideration, but they failed to get it. There was an exchange of notices and the contract was broken. Thereafter the vendors sold the suit fields to the Defendants on 26-6-1939.

The first contention advanced by the learned Counsel for the Appellants is that the sale-deed (Exh. P-5) was executed only by Ramdayal, though it purported to be executed by him and his son Dwarkaprasad also, but Dwarkaprasad did not sign it. The learned Counsel, therefore, argued that the agreement could not be enforced even against Ramdayal. In my opinion, this contention is devoid of substance. The main portion of the sale-deed, as reproduced above, clearly indicates that it was definitely a sale-deed, and not an agreement to sell. Then, the learned Counsel advanced an argument that where a document, which was intended to be signed by more than one person, was signed only by some of them, the others having refused to execute th