PARMESHWARI DAS Vs. LACHHMAN PRASAD

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit for recovery of Rs. 1,400 principal and Rs. 141 interest on a sarkhat executed by the defendant in plaintiff's favour on 1 July 1923. The suit was instituted on 1 July 1926. The defendant contested the suit chiefly upon the ground that the suit was premature, the claim being unenforceable for ten years, which had not expired. He also raised a few minor pleas which are not material to this appeal. The first Court repelled the defence and decreed the suit. The lower appellate Court held that the suit was premature and reversed the decree of the trial Court on this ground alone. The other pleas raised in the defendant's appeal have not been decided so far.

(2.) Lachhman Prasad defendant owned a house in mohalla Johntonganj in the city of Allahabad. This house was in a dilapidated condition. Under an indenture between the parties dated 19 June 1919 which was duly executed and registered, Lala Parmeshwari Das plaintiff agreed to rebuild the house in question upon the following terms: (1) The house was to be constructed at an approximate outlay of Rs. 2,000. (2) Lala Parmeshwari Das plaintiff was to provide the funds. The interest agreed upon was ten annas per cent per mensem. (3) The house was to remain in the occupation of the plaintiff as a tenant for the period of ten years certain and the plaintiff was not liable to ejectment during this tenure unless upon the happening of certain contingencies. (4) The house was to stand hypothecated to Parmeshwari Das to secure the payment of Rs. 2,000 together with interest at the stipulated rate. (5) The rent agreed was Rs. 50 per mensem. Out of this sum, Lala Parmeshwari Das was to pay Rs. 20 to the defendant and appropriate to himself Rs. 30 in part payment of the principal and interest due on the hypothecation bond. (6) The money due to the plaintiff under this contract was payable gradually in ten years.

(3.) There are no indications in the document that the parties intended that if any sums in excess of Rs. 2,000 were spent by the plaintiff towards the construction of the house, the conditions agreed upon with reference to Rs. 2,000 should also attach to those sums. There was no stipulation in the document that such sums if spent were recoverable by gradual payments made by the defendant during ten years, No interest for such amounts was provided for in the document; nor was it provided therein that the house was to stand hypothecated in security for the amounts spent by the plaintiff in excess of Rs. 2,000.