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TMI Blog1924 (3) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Defendants Nos. 2 to 28 have been impleaded as having acquired some interest in different portions of the mortgage property subsequent to the mortgage. Defendants 3, 4, 5, 6 and 7 and defendant No. 8 only appeared and contested the suit. Defendants 3, 4 and 5 do not claim any right independently in themselves and are in the same interest as defendants 6 and 7. Defendants 6 and 7 purchased properties Nos. 2, 4, 5 and 11 of the schedule to the plaint from the defendant No. 1 by a kobala dated the 7th May, 1919, and the defendant No. 8 took mortgages of a 1/2 anna share of property No. 2 and 2 annas share of properties Nos. 1, 3, 7 and 10 by three deeds, two of which bear the date of 7th August, 1918, and one of 8th October, 1918. 2. The defence of defendants 6 and 7 is contained so far as the present appeal is concerned in paragraphs 7, 8, 9 and 13 of their written statement. Shortly stated their story is that defendant No. 1 having proposed to sell his properties to these defendants, defendant No. 7 went to the pro forma defendant No. 30, in order to ascertain the dues on the mortgage bond of defendant No. 1 and a final settlement was arrived at with defendant No. 30, who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed with defendant No. 7 to accept the principal with interest at the rate of 14 annas per cent in full discharge of the mortgage debt, and that Nabadwip was the manager of the joint family. He also found that when that defendant offered the money as agreed, Nabadwip declined to accept it on some pretext. Upon this finding he held that the plaintiff is not entitled to recover any amount in excess of what was agreed upon by his vendors. He also held that Mathura Mohan, the original mortgagee, was in a position to dominate the will of defendant No. 1 and he used that position to obtain an unfair advantage over the latter and consequently the bargain can be assailed as unconscionable. 7. It is contended by the learned vakil for the appellant that the facts necessary for substantiating a case of undue influence have not been proved and the mere fact that the rate, of interest is high would not justify the interference of the Court. The matters to be dealt with when a case is sought to be brought within the provisions of Sub-section 3 of Section 16 of the Contract Act have been explained by the Judicial Committee in the recent case of Raghunath Prasad Sahu v. Sarju Prasad Sahu A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d they desired to do so free from the incumbrance of the mortgage bond. Defendant No. 7 desired to settle the amount on payment of which the incumbrance would be discharged by Nabadwip. On receiving the information defendant No. 7 settled the price to be paid to defendant No. 1, who executed the kobala, but when defendant No. 7 tendered the money as settled with Nabadwip, he put him off and subsequently did not accept it. Defendant No. 7 says: I would not have purchased the lands had not Nabadwip promised to accept his dues as stated above. We have no doubt that on these facts a concluded contract between Nabadwip and defendant No. 7 has been established. At that time a complete title to the mortgaged property could only be obtained by defendant No. 7 if he could get the interest of defendant No. 1 as well as that of the mortgagee. The defendant No. 7 went to the mortgagee first for ascertaining the consideration to be paid to the mortgagee in order to obtain a release of the mortgagee's interest, and both of them came to an agreement with regard to the matter. This amounted to a contract which may he said to be contingent on the defendant No. 7 purchasing the equity of rede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules of evidence, observes: But estoppels, in the sense in which the term is used in English legal phraseology, are matters of infinite variety, and are by no means confined to the subjects which are dealt with in Chapter VIII of the Evidence Act. A man may be estopped, not only from giving particular evidence, but from doing acts, or relying upon particular arguments or contentions which the rules of equity and good conscience prevent his using as against his opponent. 12. In the present case the undertaking of the mortgagee was as if he had said: I shall accept so much in satisfaction of our debt. I release the balance in your favour. You may purchase the equity of redemption. The defendants relying upon that statement purchased the property which they otherwise would not have done. Can the mortgagee now turn round and say that he is entitled to claim the full amount of the bond? To allow him to do so would be to give him an advantage over the defendant by a sort of trickery, which as a rule of equity and good conscience no Court should do. In any view then whether the matter is looked upon as a contract or as operating as an estoppel, the mortgagees would be bound. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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