A.N. Grover, J. - (1.) THIS appeal arises out of a suit for recovery of Rs. 34,000 with interest on the basis of a charge claimed over the property known as "Villette" Simla East, which belonged to one Mr. W.G. Deeks who executed a deed of sale in respect of it in favour of the Defendant on 29th September, 1947, for a total consideration of Rs. 75,000. The Plaintiff Bank is the Administrator of the estate of Mr. Deeks who apparently had died, the Letters of Administration having been granted by the Senior Subordinate Judge, Simla, on 18th February, 1959.
(2.) THE suit was instituted inter alia on the ground that out of the consideration of Rs. 75,000 for which the sale had been effected in favour of the Defendant, Rs. 25,000 had been paid by means of a cheque dated 22nd September, 1947, on the Lloyds Bank, Ltd., Simla, and another sum of Rs. 25,000 was paid by means of a cheque, dated 29th September, 1947 in the presence of the Sub -Registrar, Simla, at the time of the registration of the sale deed, leaving a balance of Rs. 25,000 about which the stipulation in the deed was in the following words: and the balance of Rs. 25,000 (twenty -five thousand) is to be paid by the vendee to the vendor as soon as possible but at a time when the former is in a position to make the payment. The sale deed had actually been executed and got registered and possession had been delivered of the property to the Defendant before the receipt of the aforesaid amount of Rs. 25,000 which remained payable. It was claimed in the plaint that under the law the seller was entitled to a charge upon the property sold to the Defendant for the unpaid purchase price of Rs. 25,000 together with interest at six per cent per annum on that amount from the date of sale, i.e., 29th September, 1947, until payment. The total amount of interest which became due was Rs. 17,250 till the date of the suit but out of that an amount of Rs. 8,250 was given up being the interest for the first five years after the date of sale. The claim in the suit was confined to the amount of Rs. 25,000 as principal and Rs. 9,000 as interest aggregating Rs. 34,000. The cause of action was stated to have arisen on 29th September, 1947, from the date of execution and registration of the sale deed and delivery of possession of the property to the Defendant.
(3.) IN the written statement the Defendant raised the plea of the bar of limitation and asserted that the contract sued upon was known to the vendor to be void for uncertainty and, therefore, the suit was not sustainable. It was further pleaded that the suit contract was one contingent on the Defendant attaining the position to pay. That was an uncertain event which had yet not happened, and thus the suit was premature. It was also maintained that by an implied agreement the alleged charge sought to be enforced had been excluded. The Defendant asserted that she was a benami purchaser and that the sum of Rs. 50,000 which had admittedly been paid to the vendor had been paid by (Shri Sohan Singh, the husband of the Defendant. The only other plea which deserves notice relates to the attack on the probate proceedings which were described as not being bona fide and without jurisdiction, with the result that the Plaintiff Bank had no locus standi to sue, In the replication which was filed on behalf of the Plaintiff Bank, it was stated that the Defendant was in a position to pay and was in possession of considerable movable and immovable property and the pleas taken up by the Defendant were denied. The trial Court framed the following issues: (1) Is the suit premature ? (2) Is the suit time -barred ? (3) Whether the suit is not properly valued for purposes of court fee and jurisdiction ? (4) Whether the Defendant is a benami purchaser and can take up this plea, if so what effect ? (5) Whether the suit contract was known to the vendor to be void for uncertainty, if so what is the effect ? (6) Whether the alleged charge was excluded by an implied agreement as alleged in preliminary objection No. 4 in the written statement ? (7) Has the Plaintiff Bank no locus standi to sue ? (8) Whether the alleged probate proceedings were not bona fide and were without jurisdiction and, therefore, did not bind the Defendant ? (9) Whether or not a valid charge exists on the suit property ? (10) Is the Plaintiff entitled to the interest claimed ? (11) Relief.;