FANINDRA NARAIN ROY Vs. KACHHEMAN BIBI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit instituted on the 26th February 1906 to enforce a mortgage executed in his favour on the llth April 1893 by four members of a Mubammadan family, by name Sadan, Bdu, Badruddin and Lakhu. The suit has now lasted for more than eleven years and has had a chequered career. It was dismissed by the Subordinate Judge on the ground that there was no legal consideration for the mortgage. The decree was confirmed by the District Judge on appeal. On second appeal to this Court, Brett and Sharfud-din, JJ., held that the view which had commended itself to both the Courts below was erroneous in law. The mortgage had been executed in lieu of a prior mortgage granted by Sadan in 1884 in circumstances, which may be briefly narrated. At a sale held in 1880, in execution of a decree against some members of the family, their properties were sold and passed into the hands of the mortgagee. They supplicated lo him to re-transier to them for a sum of Rs. 300 the purchased property (which apparently included their homestead). H6 consented, and executed a conveyance which, however, was never registered. The judgment-debtors were unable to pay the decree-holder in cash the consideration settled, and the result was that Sadan executed the mortgage of 1884 for Rs. 300 The conveyance was inoperative in law, but as the statutory" period has elapsed since the date of the execution sale and as the judgment- debtors have continued in undisturbed possession, it may be taken that the title acquired by the purchaser at the sale has become extinguished. The true position, consequently, was that a mortgage was granted to the plaintiff by Sadan in 1884 in order to induce him to forbear from the exercise of his rights as auction purchaser. On these facts this Court held upon the authority of the decision in Hurkissen Dass Serotvgee v. Nibaran Chancier Banerji (2) 6 O. W. N. 27 that the mortgage of 1384 was granted for a lawful consideration. This necessarily justified the inference that the mortgage now in suit, which replaced the earlier mortgage, was also for a lawful consideration. This Court thereupon remanded the case to the District Judge for determination of the other issues in the suit. One of these issues was, whether all the defendants, that is, the representatives of Sadan, Kdu, Badruddin and Lakhu, and two other persons, were bound by this transaction. The District Judge has found, as we read his judgment, that the mortgage was, as a fact, granted by these four persons, but he has held that it cannot be enforced against the representatives of the mortgagors other than Sadan and Edu as they were not bound by the execution sale and received no benefit under the mortgage transaction. In this view, he has decreed the suit against the representatives of Sadan and Edu and has dismissed the claim as against the others. We are of opinion that the distinction made by him between the two sets of mortgagors is not sound in principle and cannot be supported.

(2.) The mortgagors, under the bond now in suit, are all equally bound by the transaction, although two of them might not have been directly benefited by the mortgage transaction. This is clear from the definition of the term consideration in Section 2, clause (d), of the Indian Contract Act. That definition, in so far as it is applicable to the facts of this case, may be stated in the following terms: "When, at the desire of the promisor, the promisee has abstained from doing something, such abstinence is called a consideration for the promise." Here, we have, in 1884, a mortgage by Sadan in favour of the plaintiff. The plaintiff was entitled to enforce the security as against Sadan. He was asked to accept, in lieu of that security, a fresh bond executed in 1893 by Sadan along with three other persons, viz., Edu, Badruddin and Lakhu. The promise by Edu, Badruddin and Lakhu to be bound by the mortgage plainly formed a good consideration for the abstinence of the mortgagee to sue Sadan upon the first bond. The respondents have, however, argued that a consideration is not lawful unless it benefits the promisor. There is no foundation for this contention, and were it accepted, we should have to substitute the phrase "at the desire and for the benefit of the promisor" for the phrase "at the desire of the promisor", which finds a place in Clause (d) of Section 2, We are confirmed in the view that the contention of the respondents is not well founded, from an examination of the authorities in England, Valuable consideration has been defined as some right, interest, profit or benefit, accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other at his request. It is not necessary that the promisor should benefit by the consideration: it is sufficient if the promisee does some act from which a third person is benefited and which he would not have done but for the promise. This view is supported by the decisions in Bailey v. Croft (1812) 4 Tauut. 611 : 128 E R. 470.; Alhusen v. Prest (1851) 6 Ex. 720 : 20 L. J. Ex. 440 : 155 E. R. 735. and Haigh v. Brooks (1839) 10 Ad. & E. 309 : 2 P. & D. 452 : 9 L. J. Q. B. 194 : 113 E. R. 119 : 60 R. R. 399. We hold accordingly that the reasons assigned by the District Judge in support of his conclusion that Sadan and Edu alone were responsible under the mortgage cannot be acoepted. As regards defendants Nos. 3 and 10, however, the District Judge has correctly held that they were in no way bound by the transaction as they were not parties to the mortgage-deed.

(3.) The result is that this appeal is allowed in part and the decree of the District Judge modified. The decree will be deemed to have been made against all the defendants other than defendants Nos. 3 and 10. The appellant is entitled to his costs of this appeal as against the defendants other than defendants Nos. 3 and 10, but he must pay the defendant No. 3, who appeared in this Court, his costs of this appeal. The costs incurred by the plaintiff-appellant in all the Courts will be added to the sum due under the mortgage, and a self-contained decree will be drawn up in this Court.