Bank of Bihar Ltd. vs Muhammad Ismail and Others

James, J.—The late Maulavi Abdul Gaffar died on 28th August 1897, leaving five sons and two daughters of whom four sons and one daughter were minors. Abdul Gaffar died in a solvent condition, but it was necessary in order to pay off his debts to borrow money on the property which he left. His eldest son Maulavi Muhammad Makki, for himself and as guardian of his brothers, together with other heirs of Abdul Gaffar, Ali Ashghar and Bibi Amna, executed a usufructuary mortgage whereby they obtained Rs. 12,300 on the security of three villages of which we are here concerned with two, Dapchhu and Dapchhu Kondar. The usufructuary mortgage changed hands by assignments until it came into possession of Mt. Shaima, wife of Maulavi Ali, one of the sons of the late Abdul Gaffar. On 22nd May 1922, Mt. Shaima executed a deed by which she purported to release to Muhammad Ismail, another son of Abdul Gaffar, his share in Dapehhu and Dapehhu Kondar which she was enjoying as usufructuary mortgagee. The deed was not registered, and while Muhammad Ismail was endeavouring to procure registration, Mt. Shaima executed another deed on 14th July 1922, whereby she granted to the Bank of Bihar a sub-mortgage of the whole of the property which had been mortgaged in 1899, including the share of Muhammad Ismail. Mt. Shaima declined to admit execution for the registration of her deed of release to Muhammad Ismail; but he obtained compulsory registration on 22nd November 1922. Mt. Shaima thereupon instituted a suit against Muhammad Ismail, praying for a declaration that no portion of the consideration for the deed of release had been paid by Muhammad Ismail, and that it was invalid and inoperative.

In the suit Mt. Shaima produced a cheque on the Bank of Bihar for Rs. 3000 drawn by Muhammad Ismail, and dishonoured by the Bank on the ground that the drawer had no effects, stating that she had been induced to execute the deed of release by the payment to her of this cheque. Muhammad Ismail alleged that ten months before he had paid Rs. 2500 to Mt. Shaima for which she had given him a receipt which he produced and that on the day when the deed was registered, he had given Rs. 2665 in cash and had given a cheque for Rs. 340. The Subordinate Judge accepted Mt. Shaima''s account of the transaction and decreed the suit. Muhammad Ismail appealed from that decision to the High Court.

On 9th February 1928, this appeal was disposed of by a compromise between Muhammad Ismail and Mt. Shaima. Therein it was agreed that the deed of release should be treated as a valid and operative document, but that Muhammad Ismail should not be entitled to take possession of his share in the villages until the end of 1339 Fasli. From April 1928, until the delivery of possession of the property to Muhammad Ismail, Mt. Shaima was to pay him annually the sum of Rs. 120. Mt. Shaima undertook to redeem her sub-mortgage to the Bank of Bihar by the end of 1339, and if necessary, to give further security to the Bank for the balance which might be due in order that she might be able to place Muhammad Ismail in possession of his share in the villages by 1340 Fasli. At a later date Mt. Shaima assigned the whole mortgage of 1899 to the Bank of Bihar.

Muhammad Ismail, failing to obtain possession of his share in the two villages put his decree based on the compromise of 9th February 1928, into execution in the Court of the Subordinate Judge of Chapra. He obtained an order against Mt. Shaima for delivery of possession of his share in the two villages; but as would naturally be expected, when an attempt was made to effect delivery of possession, the Bank of Bihar resisted the writ.

In proceedings under Order 21, Rule 97, the Subordinate Judge found that the Bank of Bihar was in possession, whereupon Muhammad Ismail instituted the present suit against the Bank, impleading also his brother Maulavi Ali and his brother''s wife Mt. Shaima, praying for a declaration that the Bank of Bihar had no right to resist the delivery of possession to him. He claimed that the deed of release executed on 22nd May 1922, was a binding document made for consideration so that the sub-mortgage made by Mt. Shaima did not affect his share, and that he was also not affected by the deed of assignment executed by Mt. Shaima on 2nd September 1931. The Subordinate Judge found that Muhammad Ismail had paid consideration for the deed of 22nd May 1922, remarking that as this was a transaction between Muhammad Ismail and Mt. Shaima, the Bank of Bihar was not entitled to raise the question of whether consideration had been paid or not. The transactions leading up to the execution of the deed of assignment of 2nd September 1931, are not very clearly explained: but the learned Subordinate Judge has found that the Bank of Bihar knew before accepting the assignment in 1931 that Mt. Shaima had executed the deed of release and the compromise relating to the plaintiff''s share, and knew that she had therefore no right to execute the deed assigning her interest under the mortgage of 1899 to the Bank. He accordingly found that the deed of assignment was not binding on Muhammad Ismail and that the Bank of Bihar was not entitled to resist the delivery of possession of his share to the plaintiff.

The plaintiff''s case in this litigation rests on the deed of release of 22nd May 1922, and the subsequent contract dealing with it which formed part of the decree of the High Court of 9th February 1928. We find that on 9th February 1928, the plaintiff Muhammad Ismail agreed with Mt. Shaima that the deed of release should be treated as a valid and operative document but Mt. Shaima in this compromise nowhere suggests that fall consideration for the deed had been paid by Muhammad Ismail; and neither party suggests in this compromise that the deed is to be regarded as having taken effect on 22nd May 1922. Indeed it is made clear that it is to be treated as coming into effect for the first time in a modified form in April 1928 and that its effect is to be postponed to the effect of the sub-mortgage which had been executed on 14th July 1922, in favour of the Bank of Bihar. It is specifically provided that the Bank of Bihar is to remain for the present in possession of the mortgaged property; and provision is made between Muhammad Ismail and Mt. Shaima for satisfaction of the claims of the Bank before any possession is to be delivered to Muhammad Ismail.

Mr. S.M. Mullick on behalf of the appellant argues that the plaintiff in the present suit could not properly claim that his deed of release of 1922 should be treated as having had any effect before April 1928 or having had the effect of invalidating any part of the sub-mortgage of 1922, even if ample proof of payment of consideration had been furnished by the plaintiff, because the plaintiff Muhammad Ismail did definitely by the contract of 9th February 1928, recognize the validity of the sub-mortgage to the Bank; but he further argues that the payment of consideration by the plaintiff has not been proved in the present case.

In the present proceedings the plaintiff''s brother and sister-in-law did not enter appearance, so that the plaintiff in proof of consideration was able once more to come forward with the evidence which he had adduced in the title suit of 1922, on this occasion without the embarrassment of having an obviously more plausible story told by Mt. Shaima on the other side, with the production of the dishonoured cheque. He tells us that ten months before the execution of the deed of release he paid Rs. 2500 and that on the day of execution of the deed he paid Rupees 2665 in cash and a cheque for Rs. 340. He tells us that Mt. Shaima gave him a receipt for Rs. 2500; but he has not produced the receipt in the present case, probably thinking it safer not to do so after his experience in the previous title suit. No corroborating evidence has been adduced; and for the story of the payment of consideration we have nothing but this evidence of the plaintiff.

The learned Subordinate Judge does not say that he believes the plaintiff''s evidence; but he thinks that the admission of Mt. Shaima that the deed of release is a valid document proves that she had received consideration. He further remarks that as it was a transaction between Muhammad Ismail and Mt. Shaima, the Bank of Bihar was not competent to challenge payment of consideration.

On this point it is sufficient to remark that if the plaintiff sets out to prove payment of consideration as affording in itself conclusive evidence that parties must have intended in 1928 that the dead of release should be treated as valid from the date of execution in 1922, the plaintiff must prove what he sets out to prove. The deed of release describes payment of the sum of Rs. 5575 in one lump sum, while the various payments described by Muhammad Ismail come in all to a sum of Rs. 5505. But however that may be, I do not consider that the uncorroborated evidence of Muhammad Ismail can be considered sufficient to prove the actual payment of consideration for the deed of release in May 1922.

The admission which the learned Subordinate Judge referred contained in the compromise of 9th February 1928, does not prove anything of this kind. Muhammad Ismail may possibly have paid some, thing to Mt. Shaima in order to compromise the appeal in the High Court; but it certainly cannot be inferred from the terms of that compromise that full payment of consideration had been made six years before.

I would therefore set aside the findings of the learned Subordinate Judge that payment of consideration for the deed of release in May 1922, has been proved by the plaintiff and find as a fact that this payment has not been proved.

Whatever payment may or may not have been made in 1922, the contract by which the plaintiff is now bound and which he can apply for his own benefit is the contract of 9th February 1928. By that contract, as have said, his rights under the deed of release were to be enjoyed in a modified form from April 1928 and were definitely to be postponed to the rights enjoyed by the Bank of Bihar under the mortgage bond of 14th July 1922.

Therefore, until the Bank''s claim under the mortgage of 14th July 1922, is definitely satisfied, the plaintiff cannot resist the claim of the Bank to remain in possession of the mortgaged property. It may be true to say that the plaintiff is not bound by the assignment of 1931 so far as this assignment may work to his disadvantage; but it is clear that he cannot claim to oust the Bank from enjoyment of his property unless he can demonstrate that the debt to the Bank which was incurred on 14th July 1922 has been satisfied, whether Mt. Shaima may recover his property by assigning other securities to the Bank or whether she or the plaintiff may be able to satisfy the Bank by paying off the proportionate amount of the mortgage debt.

As the plaintiff makes no claim that this has been done and indeed claims that the Bank has no right to obstruct his entry, this appeal must be allowed and the plaintiff''s suit must be dismissed with costs throughout.

Chatterjee, J.

I agree.