Makund Lal and Others vs Mt. Sunita and Another

Sulaiman, J.—This is a plaintiffs'' application in revision from a decree of the Court of Small Causes dismissing his suit for recovery of money. In 1923 the plaintiffs obtained a possessory mortgage of certain occupancy holdings only under which they were given the right to enter into possession and appropriate the income. It was further provided that in case the property went out of their possession they would be entitled to recover the money.

The plaintiffs brought the suit on the allegation that a fraud was committed inasmuch as it was not disclosed to the plaintiffs'' father, the mortgagee that the property mortgaged consisted of occupancy holdings, It was conceded in the Court below that if the alleged fraud was not established then no decree could be passed. The learned Judge has come to the conclusion that no fraud has been proved.

It is quite obvious that the contract for the possessory mortgage of the occupancy holdings, if permitted, would defeat the provisions of the tenancy law and was therefore void u/s 23, Contract Act. The right to recover money was dependent on the contingency of there being no delivery of possession. As the covenant for delivery of possession was illegal and not capable of being enforced the plaintiffs are not entitled to recover the money. The suit was rightly dismissed. The revision is accordingly dismissed with costs.