Decided on November 01,1935



- (1.) THIS is an appeal against the judgment and decree of the High Court of Judicature at Patna, dated April 13, 1931, which reversed the judgment and decree of the Additional Subordinate Judge of Darbhanga, dated July 16, 1928.
(2.) THE appellants constitute a joint Hindu family, and on June 23, 1923, appellant No.1 as manager executed a mortgage bond in favour of certain persons to secure the repayment of Rs. 23,000. Most of the property mortgaged was joint family property, but some of it was the exclusive property of appellant No.1. In 1925, in order to discharge this mortgage, the appellants sold part of the mortgaged property which belonged to appellant No.1 to the respondents by a registered kobala or sale deed dated July 15, 1925. The relevant passages of the sale deed, which was executed by appellant No.1, with the other appellants as consenting parties, are as follows : Under account up to this day Rs. 29,072-3-0 principal with interest, and compound interest due under the mortgage bond, dated June 23, 1923, is duly payable to Dhanulal and Bhonulal Chaudhry, the creditors. The aforesaid creditors are ready to institute a suit and if they do so a great loss is expected. Besides (interest) is also increasing day by day. Hence I, the executant No.1, have settled to sell one- ' sixth share of some of the mouzas. . . which exclusively belongs to me to Babu Surendra Prasad Sukul and Babu Rajendra Prasad Sukul, I have already received the adequate consideration money and hence it is necessary to execute a sale deed. We, therefore,. . . absolutely sell 2 annas 13 gandas 1 kauri 1 karant pohkta share in mama Neori. . . for a sum of Rs. 31,000. . . to Surendra Prasad Sukul arid Babu Rajendra Prasad Sukul. . . I have received the entire consideration money in manner following viz. I have kept Rs. 29,072-3-0 in deposit with the said vendees for payment of the dues of the creditors aforesaid, and having received the remaining Rs. 1,927-13-0 in cash in one lump sum from the said vendees I have applied the same towards meeting the necessary expenses. The said vendees should go with me the executant No.1 to the aforesaid creditors Dhanu Lal Chowdhry and Bhonu Lal Chowdhry with the money deposited with him (them) and I the executant No.1 shall request the aforesaid creditor (creditors) for remission of reasonable amount of interest and compound interest and the vendees aforesaid shall pay the amount which will be found due to the aforesaid creditors after deducting remission of interest And compound interest granted by them, out of the consideration money deposited with them, and, after taking back the mortgage bond, dated June 23, 1923, should keep the same with themselves as a proof of payment of the consideration money. If on deduction of the amount remitted from the dues of the aforesaid creditors, the vendees have on an adjustment of account to pay the said creditors less than the amount of consideration money deposited, then they the vendees shall at once pay me the executant No.1 the surplus amount of the consideration money deposited with them left after payment of the dues of the aforesaid creditors on taking a receipt therefor signed by me. It may be noted that the payment of interest and compound interest which may be payable to the aforesaid creditors owing (to) the non-payment of consideration money shall concern the vendees. If owing to the negligence on the part of the aforesaid vendees the dues of the aforesaid creditors be not satisfied by December 30, 1925, and the consideration money remain with them, then on expiry of the aforesaid date, this sale deed shall stand cancelled null and void and Rs. 1,927 an. 13 which I the executant No.1 have just now received in cash shall become forfeited. Now we, the executants after having executed this sale deed, put the aforesaid vendees in possession of the vended property. The respondents, who were the vendees, obtained possession of the property and still remain in possession. On October 15, 1925, the respondents paid Rs. 10,000 to the creditors in part discharge of principal and interest, but they made no further payment prior to the institution of the present suit by the appellants on August 16, 1926, which arose out of the respondents' application in May, 1926, to have mutation of their names on the Collector's register. Despite the objections of appellant No.1, the deputy collector, on August 14, had given the respondents one month within which to pay up the balance of the creditors' dues. On September 14 following the respondents paid Rs. 22,131, the final balance due to the creditors, and on September 18, 1926, the deputy collector allowed mutation.
(3.) IN the suit the appellants seek a declaration that the sale deed of July 15, 1925, has become cancelled and null and void and that the respondents have ceased to have any right or title thereunder, and a decree for recovery of possession of the property. They also ask for a decree for Rs. 1,600 for interest and compound interest and for mesne profits. The main question turns on the failure of the respondents to pay the whole dues of the creditors by December 30, 1925. In view of the concurrent finding of the Courts below, it must be taken that the appellants were not responsible for this failure. The appellants maintain, in the first place, that the clause in the sale deed as to cancellation on failure to satisfy the dues of the creditors by December 30, 1925, constituted a superadded condition within the meaning of Section 31 of the Transfer of Property Act, and that, on its breach, the rights of the respondents automatically ceased; that it was a question of title and not of contract, and therefore no question arose as to whether time was of the essence of the contract, or of relief from the failure to comply with the condition. Alternatively, the appellants maintained that time was of the essence of the contract, and that no relief should be given by the Court. The respondents dispute both these contentions.;

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