1959 (1) TMI 38 - HC - Indian Laws

Issues Involved:

1. Whether the plaintiff was bound to discharge the liabilities under the mortgage and promissory note before calling upon the defendant to execute a conveyance.
2. Whether the plaintiff and the defendant agreed in July 1949 to execute a release deed instead of a conveyance.
3. Whether the release deed executed by the defendant on 30th October 1949 was genuine and properly executed.
4. Whether the failure to register the release deed was due to the plaintiff's negligence or the defendant's evasion.
5. Whether the agreement to execute a release deed was superseded by a subsequent agreement dated 30th November 1949.
6. Whether the plaintiff is entitled to call upon the defendant to execute a fresh release deed or a proper conveyance.
7. Whether the suit was barred by limitation.

Detailed Analysis:

1. Obligation to Discharge Liabilities:
The court held that the plaintiff's obligation to discharge the mortgage and promissory note was independent of his right to obtain a sale deed. The plaintiff's right to call for a sale deed arose upon payment of the price, and the defendant's liability to execute the sale deed was not contingent upon the discharge of the liabilities. The agreement (Exhibit A-1) clearly stated that upon payment of the price, the vendors would execute and register a proper conveyance.

2. Agreement to Execute Release Deed:
The court found that in July 1949, the plaintiff and the defendant, along with other vendors, agreed to execute release deeds instead of conveyances based on the advice of a document writer, Sivarama Iyer. This oral agreement modified the original agreement (Exhibit A-1) to the extent that release deeds would be executed in place of conveyances. The execution of release deeds by other vendors supported the plaintiff's claim of such an agreement.

3. Execution of Release Deed:
The defendant did not deny his signature on the release deed (Exhibit A-2) but claimed that the date had been tampered with. The court found that the release deed was executed on 30th October 1949, as stated, and there was no credible evidence to support the defendant's claim of tampering.

4. Failure to Register Release Deed:
The court held that the failure to register the release deed was due to the defendant's evasion and not the plaintiff's negligence. The defendant had an obligation to assist in the registration of the document, which he failed to fulfill. The plaintiff's evidence showed that he requested the defendant to go to the Registrar's Office for registration, but the defendant evaded.

5. Subsequent Agreement:
The court found that the agreement dated 30th November 1949 (Exhibit B-2) related to the discharge of business liabilities and did not supersede the agreement to execute a release deed. The obligations under the original agreement (Exhibit A-1) and the oral agreement of July 1949 remained unaffected.

6. Entitlement to Fresh Deed:
The court held that the plaintiff was entitled to call upon the defendant to execute a fresh release deed or a proper conveyance. The release deed (Exhibit A-2) contained a clause for further assurance, which entitled the plaintiff to demand a proper conveyance for better securing the estate.

7. Limitation:
The suit was filed on 30th October 1952, within the limitation period. The acknowledgment of liability in the release deed (Exhibit A-2) saved the limitation for enforcing the agreement of July 1949.

Conclusion:
The court allowed the appeal, set aside the judgment and decree of the Subordinate Judge, and directed the defendant to execute a proper deed of conveyance of his undivided 1/6th share in the estate to the plaintiff within two months. If the defendant failed to do so, the court would execute the document on behalf of the defendant. The plaintiff was awarded costs in both courts.

← Previous Next →