NATHUSA PASUSA LAD Vs. MUNIR KHAN S/O. JIWAN KHAN

JUDGEMENT

(1.) THE suit is for possession of two houses and for rent in respect of them for three years. The houses originally belonged to the t. The plaintiff's ease is that the defendant sold them to him along with other property for Rs. 11,000 on 30th July 1926. On the same day the defendant executed a rent note in favour of the plaintiff attorning to the plaintiff and undertaking to pay him Rs. 10 for the occupation of the house. The plaintiff says that the defendant paid rent up to June 1928 and that after that he paid nothing. As the defendant refuses to pay, the plaintiff sues for possession and also for rent for the three years 1932-1935. The defendant admits execution of the two deeds but contends that both are nominal. He says that the relations between the parties were ones of mutual trust and confidence. The defendant's father and his uncle were in the service of the plaintiff's grandfather, the plaintiff's father and the plaintiff himself for a number of years, and that his son and cousin are still in the plaintiff's service. That being so, when the defendant found that he was heavily indebted to a number of creditors, including the plaintiff, and was afraid that he would lose his property, he went to the plaintiff for advice. The plaintiff thereupon advised him, to pass a sale deed in his favour for his entire immovable property and as a preparation for showing the consideration he took two pronotes in about April 1926 from defendant for the amounts due on previous pronotes without making up any accounts as regards repayments, interest and appropriation and filed immediately the suit on those pronotes.

(2.) THE defendant also owed the plaintiff money on a mortgage. He had borrowed Rs. 3000 on a mortgage on 21st December 1930 but had made several repayments. On the date of the sale deed only Rs. 5053 was due, but the defendant says that in order to make the amount seem larger the plaintiff told him not to make up and settle accounts but merely to show the face value of the mortgage and its interest in the deed. The deed was executed on 30th. July 1926, long before the first hearing of the collusive suits instituted on the promissory notes. Those suits never came to trial as the plaintiff's pleader asked that the suits be dismissed as fully satisfied put of Court, the satisfaction being the sale. The defendant says that he agreed to execute the deed but stipulated that it was to be a condition precedent to the said agreement that the houses in suit would remain in the defendant's possession and no rent would be charged for the same and they would never be ejected by the plaintiff, and that after the debts of other creditors are settled and paid off, the account of the original loans on khata pronotes and mortgage would be finally settled and the amounts which would be really found due on the date of the sale deed dated 30-7-1926 would carry interest at 9 per cent, per annum (simple) and the net profits of the fields would be given credit for and would reconvey the property to the defendant on receiving from the defendant the amounts which would be found due.

(3.) WE gather that by this the defendant means that the sale deed was not a genuine document either and was also only nominal. This confusion in the pleading is reflected in the issues. Issue 1 asks whether the sale deed was nominal and bogus and it is answered in the affirmative, while issue 2 asks whether there was an agreement between the plaintiff and the defendant to settle accounts and reconvey the property covered by the sale deed, and this is also answered in the affirmative. It is clear that if there was an agreement to reconvey, then the transaction might not have amounted to a sale in law but only to a mortgage, but whatever else it was it could not have been nominal. The defendant goes on to say in his written statement that the object of all this was: Plaintiff assured the defendant that if the latter would accept his advice and would pass the sale deed accordingly in his favour his sale deed would be considered as genuine and other creditors would come round and settle their debts for much less amount.