BABU RAJA MOHAN MANUCHA Vs. BABU MANZOOR AHMAD KHAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit to enforce a registered mortgage dated 12 August 1919 whereby a village called Mahona Poorab in the District of Sultanpur in Oudh was made security for the sum of Rs.10,000 with interest at 9 per cent., with half-yearly rests. The grantor of the mortgage was Iltifat Ahmad Khan, the defendants' father, and the grantee was the plaintiffs' father Moti Lal Manucha. The deed contained a personal covenant to pay the interest half-yearly and to repay the principal at the end of three years. The suit was brought in the Subordinate Judge's Court at Sultanpur on 9 August 1934 by which time both of the original parties to the deed had died. The plaint sought relief, both by sale of the mortgaged property and by enforcement of the covenant. The defendants by their written statement of 30 November 1934 maintained among other defences that the mortgage sued upon was void, having been made in circumstances which brought into operation para.11 of Sch. 3, Civil PC. 11-(I) So long as the Collector can exercise or perform in respect of the judgment-debtors immovable property, or any part thereof, any of the powers or duties conferred or imposed on him by Paras. 1 to 10, the judgment-debtor or his representative in interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector . . .

(2.) The learned trial Judge sustained this contention. He refused the plaintiffs a money decree upon the covenant on the ground that this cause of action had become barred by limitation. By his decree of 2nd August 1935, he dismissed the suit with costs. An appeal by the plaintiffs to the Chief Court was dismissed on 5 May 1937, the learned Judges (Thomas and Zia-ul-Hasan JJ.) agreeing with the trial Court on both of the grounds of his decision. They were asked to give the plaintiffs relief under S. 65, Contract Act. 65. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. But the Chief Court refused to entertain this ground of claim because it had not been pleaded and was not taken in the memorandum of appeal. Accordingly they left the plaintiffs to seek this remedy by a separate suit. The plaintiffs have appealed to His Majesty in Council. By their petition of appeal under O. 45, Rr. 2 and 3 and by their case, they contest the findings of the Courts in India both as regards the invalidity of the mortgage and as to their claim on the personal covenant being statute barred: they also insist upon their right to relief under S. 65, Contract Act. The defendants have not lodged a case nor have they appeared at the hearing: their Lordships are indebted to learned counsel for the appellants who laid fully and candidly before the board the matters for consideration on this appeal.

(3.) The first question is whether para. 11 of Sch. 3 applied to render Iltifat Ahmad Khan incompetent on 12th August 1919, to mortgage Mahona Poorab. He was one of the six sons of a deceased taluqdar of Mahona named Ewaz Ali Khan who had mortgaged to the Allahabad Bank in 1908 the whole taluka consisting of 26 villages, and had in 1909 executed deeds of gift transferring six of these villages to his wife and certain of his sons. Mahona Poorab was given to his son Ilfifat, Gadaryadih to his wife Safuran Bibi and Deokali to Bashir Ahmad Khan, another of his sons. The Bank had on 12 April 1915, obtained a preliminary decree for sale upon its mortgage, in a suit (No.76 of 1914) wherein the donees under the deeds of gift had been impleaded as persons interested in the equity of redemption. That decree was made absolute on 17 June 1916, by which time Ewaz Ali had died and had been succeeded as taluqdar by his son Yar Muhammad. On 3rd February 1917, the Subordinate Judge had transferred the decree for execution to the Collector under S. 68 of the Code. On Yar Muhammad's application a sum of Rs.1,50,000 was with the Collector's permission raised by mortgage of the taluqa in January 1919, leaving some Rs. 77,000 outstanding. On 15 February 1919, the Collector ordered the sale of the six villages which had been transferred by Ewaz Ali to his wife and sons. Both Iltifat and Safuran Bibi applied for leave to mortgage their respective villages but this was refused; and, on 14 June 1919, it was ordered that a sale should be held on 21 July; that the village Gadaryadih should be sold as the first lot and the village Mahona Poorab as the second lot, and that the other villages should only be sold if these two had not produced sufficient to discharge the debt. "As soon as by the last bid the full amount of demand is secured the auction will be closed."