TaxTMI 
TaxTMI 
TaxTMI 
1940 (11) TMI 37
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....le shall be subject to the prior rights which the plaintiff purchased from Mr. Badar-ud-Din-Qureshi." The value of these rights has been found to be Rs. 2500 (which is one of the disputed items of consideration in the mortgage deed) and it is possible that the learned subordinate Judge in so finding has deducted this amount from the total due to the plaintiff. 2. Even so, however, the latter figure would not amount to Rs. 10,000, but Rs. 9500. There are certain other inaccuracies in the decree awarded, to which attention will be drawn in due course. However, the plaintiff has accepted the decree in the form in which it has been drawn up. The appeal is by the defendant Shuja-ud-Din. The mortgage deed in suit (Ex. P-3, printed on pp. 3 to 5 of the supplementary volume) of which execution is admitted by Shuja-ud-Din, recites the receipt of the entire mortgage money of Rs. 8000, consideration being made up as follows: 3. In contesting liability, the defendant-appellant Shuja-ud-Din denied consideration in respect of all these items except the sum of Rs. 500 which was admittedly received before the sub-registrar. As regards the validity of the deed it was pleaded that the plainti....
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.... the property by getting the amount left in trust with the vendee paid to the previous mortgagee." The second transaction of 5th August 1925 is the mortgage deed in suit by Shuja-ud-Din in favour of Siraj-ud-Din, the consideration of which has already been described. It is to be noted that the item of Rs. 3150 "left in trust with the vendee to be received at the time of need" as recited in the sale deed, Ex. p.7, is in the mortgage-deed in suit, credited towards the consideration of this sale deed and formed the first item of consideration. For a proper appreciation of the validity of this item of Rs. 8150, (which arises out of a transaction relating to the house described in the sale deed, Ex. P-7) and of the item of Rs. 2500 (which arises out of a transaction relating to a portion of the land in suit) it will be necessary to examine the previous transactions relating to the house and land respectively. But before so doing, it will be convenient to deal with the previous litigation between Siraj-ud-Din and Shuja-ud-Din arising out of the mortgage deed in suit. 5. On 18th July 1931, Siraj-ud-Din instituted a suit against Shuja-ud-Din claiming a simple money decree f....
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....intiff waiving aside or leaving out of consideration the whole invalid mortgage deed in all possible aspects, sued merely for refund of his money with interest by way of damages: Such a suit would not be based on the mortgage deed at all. 8. Subsequently, in 1936, Shuja-ud-Din mortgaged the whole land to one Abdul 'Kabir and on 16th April 1937 sold his rights to Ghulam Mohy-ud-Din. On 1st August '1937, the present suit for recovery of Rupees 12,000 was instituted and the plaintiff impleaded the subsequent transferees, Ghulam Mohy-ud-Din and Abdul Kabir, as pro forma defendants. They did not appear to contest the suit and proceedings were taken ex parte against them. In these circumstances, the learned subordinate Judge was wrong in directing in his decree that if any surplus was left over after the sale of the 'property in suit, it should be paid to these defendants. It will be convenient first to deal with Mr. Mahajan's objection that this suit is barred by reason of Siraj-ud-Din's 'previous suit instituted on 18th July 1931, which has been described above. The objection is two fold, (1) that because Siraj-ud-Din in the plaint denied the mortgagor's ti....
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.... Qureshi. He accepted as correct the allegation of Shuja-ud-Din, as recited in the mortgage deed, that he was the owner of the property in suit, but that a sum of Rs. 2500 was owed to Badar-ud-Din Qureshi; but when he went to pay Qureshi, he found that the latter himself was the owner of the property and not the mortgagor Shuja-ud-Din. He then settled the claim of Mr. Badar-ud-Din by payment of Rs. 2500 on 2nd November 1925. In these circumstances, there can be no question of abandonment of the mortgage by Siraj-ud-Din as contended by Mr. Mahajan. Siraj-ud-Din was naturally annoyed at what he regarded as Shuja-ud-Din's deceit in the matter of claiming a title which he did not possess. It was, no doubt, open to him in claiming his money in 1931 either to sue on the mortgage deed or, in the alternative, for recovery of the loan on the ground that the mortgage was invalid. Siraj-ud-Din chose the latter form of suit, unfortunately as it proved, because the Court, finding that Shuja-ud-Din had a title and that the mortgage was not invalid, held that the suit for a simple money decree had by 1931 become time barred. 11. In view of this decision, Siraj-ud-Din had no alternative but t....