Lala Sheo Nandan Lal vs Moulvi Jainul Abdin And Ors. on 25 November, 1914

Calcutta High Court
Lala Sheo Nandan Lal vs Moulvi Jainul Abdin And Ors. on 25 November, 1914
Equivalent citations: 29 Ind Cas 869
Author: Coxe
Bench: Coxe, Richardson


Coxe, J.

1. This was a suit for the recovery of Rs. 1,000 said to be a portion of the unpaid purchase-money of Mauza Dumdama and, therefore, charged upon that village. This village was sold in 1902 by Ashraf Hossain and Abdul Haq to the appellant. Out of the purchase-money a sum of Rs. 1,000 was kept by the appellant on the understanding that he should in September 1903 pay it to one Mahomed Kazim in payment of a mortgage by conditional sale of two villages, which may briefly be described as Galile and Katsa. Abdul Haq died and this suit was brought by Ashraf Hossain as one of Abdul Haq’s heirs and by the other heirs of Abdul Hag.. The facts are not very definitely found by the Courts below, but, if I understand their judgment right, they think that Ashraf Hossain in 1904 gave the right of redeeming Galib and Katsa to his daughter, Bibi Azizan, in order that she might obtain those villages by paying the mortgage-money, viz. Rs. 1,000, from her own poaket; and that in 1905 he gave to Abdul Haq, his son, his interest in the right of recovering the sum of Rs. 1,000 which was in deposit with the appellant. The appellant had not paid the money although it was two years after the due date, and perhaps there seemed little likelihood of his doing so. In 1905 Abdul Haq gave the appellant notice to pay this money, but as he did not do so, the present suit was instituted. After the suit was instituted the appellant bought the equity of redemption of Galile and Katsa from Azizan and asserts that he gave her the sum of Rs. 1,000 to be paid by her to the original mortgagee. This allegation was supported by Azizan. The Court below does not believe that this sum was ever paid and has given the plaintiffs a decree.

2. On behalf of the appellant it is first contended that the suit cannot be maintained by the present plaintiffs on the ground that the charge mentioned in Section 55 subsection 4, Clause (b), of the Transfer of Property Act, 1882, is a personal right of the seller himself, and cannot be transferred to an assignee. There is, however, no real authority in support of this view. The cases cited, Hari Ham v. Denaput Singh 9 C. 167 : ll C.L.R. 339. and Moti Lal v. Bhagwan Das 8 Ind, Cas 497 : 6 A.L, J. 645 : 31 A. 443 are quite different and do to support the present contention. The debt itself conld certainly be transferred and I see no reason why the security for the debt should not also be transferred with it.

3. Secondly, it is contended that, as the defendant says that he has paid Azizan and is supported by Azizan, the plaintiffs can have no right to the money. The Judge, however, finds as a fact that this payment was not made. And if it is the case, as the Courts below evidently think, that in consequence of the appellant’s neglect to pay the money Ashraf Hossain decided to cancel the arrangement under which the appellant had to pay the money to the original mortgagee, and transferred to Abdul Haq his right to recover the money directly from the appellant, the payment to Azizan could not possibly be a valid discharge of the appellant’s obligation. Notice was given to the appellant to return the money before the institution of the suit and the alleged payment to Azizan was made long after the suit was instituted.

4. The only other point that has been pressed is that the plaintiffs are not entitled to the whole of the money. This, however, is not raised in the grounds of appeal, and the other defendants, who are prejudiced by this decision if it is wrong in this respect, do not appeal. The appellant is clearly bound to pay the sum, and it matters nothing’ to him how the plaintiffs and the other defendants divide it among themselves.

5. The appeal must be dismissed with costs.

6. Richardson, J.–I agree.

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