Musammat Bibi Hafizunnissa vs Maulvi Imamuddin Khan

Ross, J.—This is an appeal by the defendant against the decree of the Additional Subordinate Judge of Darbhanga in a suit brought by the plaintiff on a mortgage executed in his favour by the defendant on the 12th December, 1910. The suit was decreed in part. There is also a cross-appeal by the plaintiff in respect of a portion of the claim that was disallowed but this cross-appeal was not pressed.

The plaintiff alleges that the defendant took a loan of Rs. 7,000 under a registered mortgage-bond dated the 12th December, 1910, the debt became payable on the 10th December, 1911, compound interest at the rate of Rs. 1-8-0 per mensem with six-monthly rests was stipulated for. At the time of the execution of the mortgage Rs. 3,000 only was paid to the defendant and an ekramama of even date with the mortgage was executed with regard to the payment of the balance. The balance of the Rs. 7,000 was paid from time to time with the exception of Rs. 114 which the defendant refused to accept.

In the written statement the defendant admits that the plaintiff got a deed for Rs. 7,000 executed in his favour by her. She denies, however, that any consideration passed. She alleges that she was OU-1927-0303under the influence of the plaintiff and had no opportunity to take advice and that she acted according to his directions; that she had an appeal pending before the Judicial Committee, and that the plaintiff expressed his readiness to conduct the appeal and defray the expenses and asked that the defendant should execute a bond for Rs. 7,000 for his satisfaction and said that he would also execute an ekramama by way of contract for her satisfaction and would take the money mentioned in the bond from her after the appeal was decreed by the Privy Council. She further alleges that she had no knowledge of the contents of the bond or the ekramama and that the plaintiff did not pay Rs. 3,000 for the expenses of the Privy Council appeal. There was a further defence that the effect of the ekramama is, in the events that have happened, to make the mortgage, a mortgage for Rs. 3,000 only.

The learned Subordinate Judge accepted the proof of the passing of consideration except in respect of Rs. 975 and holding that notwithstanding the terms of the ekramama, the mortgage was good for Rs. 7,000 he made a decree accordingly.

Six issues were framed, of which issues Nos. 3, 4 and 6 were as follows:

Issue No. 3. Was the mortgage bond in suit executed by the defendant with full knowledge of its terms? Were the same fully explained to and understood by her? Had the defendant any independent advice before the alleged execution of the said mortgage bond?

Issue No. 4. Was the bond in suit executed under the circumstances mentioned in paragraph 7 of the written statement?

Issue No. 6. To what other relief is the plaintiff entitled?

On the 5th of January 1920 after the case was opened the learned Subordinate Judge recorded the following order:

Case opened. Parties'' Pleaders stated their case. Issues No. 3. 3, 4 and 6 cancelled as useless. Tomorrow for evidence. 7. It was contended on behalf of the appellant that these issues ought not to have been deleted. But the question was evidently debated, before the learned Subordinate Judge and no petition of objection was filed and there is nothing on this point in the grounds of appeal. The point is not one of substance because the matter of these issues has been fully dealt with in the judgment.

The mortgage-bond is Exhibit 1. It recites that the executant is in need of Rs. 7,000 to defray the expenses of the Privy Council case in which she was the appellant against Syed Saadat Ali Khan respondent and that she had negotiated for the loan of Es, 7,000 through Sheikh Faiyaz-ud-din, her son-in-law, with Munshi Imamuddin Ehan and that in consideration of Rs. 7,000, receipt of which was acknowledged, she mortgaged the properties set forth in the schedule to the deed. The stipulation about interest followed, together with an agreement to pay interest by tankhas drawn on the Indigo Factories Hursinghpore and Motipore in favour of the mortgagee. The bond was signed for Musammat Hafizunnissa, mortgagor by the pen of Faiyazuddin, her son-in-law. There is also a signature by the mortgagor herself and her seal is affixed. The deed is attested by five witnesses of whom Gobind Chandra Roy, Vakil, is dead. Three of the witnesses have been examined but one Hakim Mohammad Abdus Shakur was not questioned about the bond as he was supposed to have been won over by the defendant. Babu Lal Behari putt, Pleader, one of the attesting witnesses, proves his attestation and the execution of the deed by the defendant. He also says that it was read out and explained to the executant by the writer. Similar evidence is given by Dhana Prosad another of the attesting witnesses, and further evidence of execution is given by the plaintiff himself in whose presence the defendant signed and sealed the document).

It was argued on this evidence that the execution is suspicious because not only does Faiyzauddin sign for Musammat Hafizunnissa but Musammat Hafizunnissa also signs her own name. There are several signatures of the defendant on the record of this case, some of which are admitted, I have compared these signatures with the signature on the bond and hold that the signature is genuine. Moreover, the execution of the bond is admitted in the written statement.

The first question of substance is, whether consideration passed. Exhibit 2 is a tankha executed by she defendant in favour of the plaintiff authorising the manager of Hursingapore Indigo Concern to pay to the plaintiff a sum of Rs. 930 in part satisfaction of the interest on the debt secured by the registered mortgage-bond, dated the 12th December, 1910, amounting to Rg. 7,000. Exhibit 2-A is a similar tanhka in respect of Es, 270 directed to the proprietor of Motipore Concern. In this document also the mortgage-bond is recited. Both these documents are signed by Musammat Hafizunnissa and also by her son-in-law on her behalf and they are admitted in the written statement. Exhibit 3 is a cheque for Rs. 3,000 issued by the plaintiff in favbur of Bibi Hafizunnissa or order. The receipt is endorsed by Faiyazuddin. This cheque is dated the 13th December, 1910. The amount of the cheque is entered in the ledger of the Benares Bank undercoat dak. Evidence regarding the payment of this cheque has been given by Abdul Hamid Mokhtear who says that Faiyazuddin signed the oheque in his presence and that the endorsement on the back of the cheque is in the witness''s handwriting signed by him. This endorsement is an identification of Faiyazuddin. The witness states that Faiyazuddin received payment of this cheque from the Benares Bank for Hafizunnissa and that he learned of this payment from the Musammat herself. Moluvi Mohammad Shafi, a Vakil, deposes that the Manager of the Benares Bank wanted identification of the payee of this cheque from a respectable person and suggested the witness. The witness endorsed the cheque; he made the endorsement at the request of Faiyazuddin. Dhana Prosad deposes that the plaintiff made over the cheque of Rs. 3,000 to the defendant. The passing of this part of the consideration is, in my opinion, fully proved.

The next item is a sum of Rs. 2,500. Exhibit 4 is a draft for this amount by the Benares Bank on the Allahabad Bank in favour of Imamuddin Khan or order. It is endorsed for payment to Basil O. Wilson or order and signed on the back by Basil O. Wilson, Exhibit 13 is a voucher for Rs. 2,506-5 0 signed by Imam-ud-din. The transaction is entered m the ledger of the Bank under date the 30th January, 1911 (Exhibit 12). The plaintiff deposes to having taken this draft and to having endorsed it in favour of Mr. Wilson at the request of the defendant and to making it over to the defendant Muhammad Elias deposes that he knows Faiyazuddin, the son-in-law of Hafizunnissa, that he accompanied him to the office of Mr. Basil O. Wilson, Attorney, to whom the draft for Rs. 2,500 was made over in the witness''s presence. Satish Chandra Sen who was employed in the office of Mr. Wilson at this time also deposes that he knows Faiyazuddin that he had heard of Hafizunnissa in connection with the Privy Council appeal which was in the hands of Mr. Wilson and that Faiyazuddin used to instruct Mr. Wilson in the matter of that appeal. He proves Mr. Wilson''s signature on the back of the draft. Formal evidence of the payment of the draft was also given by Mr. J.D. Wilson, an Assistant Agent of the Allahabad Bank. I hold that the passing of this part of the consideration is also fully proved. The only other two items which the learned Subordinate Judge has allowed are a sum of Rs. 125 paid by cheque on the 26th January 1911 (Exhibit 3-A) and a sum of Rs. 400 for which a receipt was given by the defendant herself, (Exhibit 5). This receipt recites that whereas Rs. 1,375 out of the bond-money was due from Munshi Imamuddin Khan Saheb out of which she has received Rs. 400 from him to pay the salary of Munshi Mohammad Khalil Saheb karperdaz payable by her, she, therefore, gave this receipt in writing. The receipt is dated the 30th January, 1911. The sum of Rs. 1,375 is the difference between Rs. 7,000 and the above mentioned three sums of Rs. 3,000, Rs. 2,500 and Rs. 125. This receipt, therefore, further establishes the fact of these payments. The plaintiff deposes to the fact of this payment and to the defendant having signed and sealed the receipt. There was no cross-examination on this part of his evidence. In argument it wa3 suggested that the receipt is not reliable because it purports to be a receipt for Rs. 400 on the 30th January 1911, whereas this Rs. 400 was in fact paid on five dates between the 2nd of March 1911 and the 2nd of February, 1914 as endorsed on the back. These endorsements are all by Muhammad Khalil for the payment of whose salary the receipt was given. I see no reason to doubt the genuineness of this receipt on this account. The effect of the receipt was that Imamuddin undertook the responsibility for the salary of Muhammad Khalil to the extent of Rs. 400 and the endorsements show that this responsibility was duly discharged. The other items of which proof was tendered by the plaintiff were disallowed by the Subordinate Judge as being payments made contrary to the terms of the ekrarnama which will be referred to later.

Three witnesses were examined on behalf of the defence as well as the defendant herself. The evidence of these witnesses was not referred to by the learned Vakil for the appellant and the perusal of it shows that it is without value. The defendant in her evidence denied all the material allegations in the plaintiff''s case, stating among other things that the document was not read out to her, that she had no seal and could not sign, and that she did not know Lal Behari Babu. She admits knowing Gobind Babu, but he is dead. She denies having received any cheque or any money and she professes ignorance of the ekrarrtama. Her cross-examination shows that she has had a varied life and that she had executed another bond although in giving evidence in a suit brought on that bond she denied execution. Her evidence in that ease also negatives her present statement that she had no seal and could not sign her name. She admits that she had no ill-feeling with Faiyazuddin and did not mistrust him. She says that he balled a man named Muslim to read out the mortgage-bond to her but he did not read it and told her orally about it that it was a bima deed. She further says that the Registrar did not question her but his peon did in his hearing and that she told the peon that she had executed a bima deed. Now the bond itself shows that execution was admitted at the Registry by the defendant, Bibi Hafizunnissa. The evidence of the defendant must be rejected as false and unreliable. I find, therefore, that the execution of the mortgage-bond and the passing of consideration to the extent allowed by the learned Subordinate Judge are definitely proved.

Two arguments remain to be considered. It is contended, in the first place, that the defendant had no independent advice; that the plaintiff was in a position of active confidence towards her, and that he must prove the bona fides of the transaction. Reference was made to decisions in Satis Chandra Ghosh v. Kahdasi Dasi 1922 Cal. 202, and Saratkumari Dasi v. Amultyadhan Kundu 1923 P.C. 13 and to Section 3 of the Evidence Act. Now, it is proved and admitted that the defendant; was on bad terms with her husband at the time, that -she was in need of money and that she had an appeal before the Judicial Committee. There is no reason to suppose that the transaction was imprudent or reckless and there is really no question of good faith in this case. Babu Lal Behari Dutt says that the deed was explained to the defendant and so does Dhana Prasad. In her cross-examination, although she says that it was a bima deed, she says that she consulted her daughter and brother and husband and son-in-law and that they advised her to execute the deed. The deed itself shows that the loan was negotiated by Faiyazuddin and the defendant admits that she did not mistrust him. The tankhas refer to the mortgage and the admission of execution was made before the Sub-Registrar. There can, therefore, be no doubt that the defendant knew perfectly well what she was doing. Maulvi Wajid Hussain who worked as her Pleader states that in a previous litigation in which a compromise was filed by him on her behalf she used to come on every date in a palki gharry to Court. She has given evidence on a previous occasion (Ex. 15) and at the present trial she deposed in Court. She is evidently a woman of the world, experienced is affairs. There is no ground for suggesting that she did not fully understand the nature of the transaction; nor for doubting its good faith.

In the second place, it is argued that the effect of the ekrarnama, in the events that happened, is to make the mortgage a mortgage for Rs, 3,000 only. The terms of this ekaranama (Exhibit A) are these, It recites the mortgage-bond for Rs. 7,000 and the fact that the executant Imamuddin Khan had not got the whole amount ready and had paid Rs. 3,000 and promised to pay the remaining amount of Rs. 4,000 on the 15th January, 1911 and contracted that if he failed to pay this amount by that date the mortgage-deed should be considered to have been executed for the sum of Rs. 3,000 only and that interest would run thereon. The argument is that as the balance of Rs. 4,000 was not paid by the 15th January, 1911, the mortgage becomes a mortgage for Rs. 3,000 only, and that if it is to be taken to be a mortgage for Rs. 7,000 this can only be by a substituted contract which is neither in writing nor registered and of which, therefore, no evidence can be given. The plaintiff stated that he was ready to pay Rs. 4,000 to the defendant on the 15th January but she asked him to wait and said that she would take the money when she required it. This statement is not in the plaint and it is uncorroborated and in my opinion cannot safely be acted upon. Apart from this statement, however, the case stands thus. There was a mortgage for Rs. 7,000. By reason of the ekrarnama the defendant was entitled to refuse further payments on account of the mortgage loan after the 15th January, 1911, but she did not exercise this right. On the contrary, the receipt (Exhibit 5) dated the 30th January, 1911, expressly states over her own signatures that Rs. 1,375 out of the bond-money was still due and that she then received Rs. 400. This is a clear admission that the payments over and above Rs. 3,000 were attributed by her to the mortgage loan. As was observed by James, L.J., in Upperion v. Nickolson (1871) 6 Ch. 436, "it constantly happens that an objection is waived by the conduct of the parties." In equity all that is required, prima facie even when the period of payment is expressed, is that the promisor should show that he was ready to perform his part within a reasonable time. The date of payment was expressed to be the 15th January, 1911. The last payment for which credit has been given to the plaintiff is dated the 30th January, 1911. Not only is this within a reasonable time in the circumstances of this case but the defendant by her very act in granting the receipt has shown that she accepted it as such.

The principle is stated in Halsbury''a Laws of England, Vol. VII, page 424, as follows:

In the case of a contract which is required by law to be in writing, although its terms cannot be varied by a fresh agreement that is not made in writing, there is nothing to prevent the parties from agreeing verbally to waive the stipulations of the contract as to the mode or time of performance; and, if the contract is performed in accordance with such verbal agreement, the obligations which have been waived are discharged.

The Leather-Cloth Co. v. Hieronimus (1875) 10 Q.B. 140 was a case in which the written contract provided that the goods should be forwarded by a particular route. There was a subsequent understanding that they should go by a different route and as they were damaged in transit the defendant repudiated the contract. With regard to the argument that there had been a substituted contract, Blackburn, J., observed as follows.

The answer is: the plaintiffs do not rely on a substituted contract but on the original contract; and they say, ''You, the defendant, on being told of the substituted delivery, did not object, but by your conduct, assented to it.'' I cannot see why the assent to such a substituted mode of performing one of the terms of a contract need be in writing and may not be by parol, though the original contract must have been in writing. They are quite different things, the proof of a substituted contract and the proof of a ratification or approval, after performance, of the substituted mode of performance.

In my opinion there was here no new or substituted contract but merely a waiver of the stipulation as to the time of payment. Reading the two documents, the original mortgage and the ekramama, together, in the light of the conduct of the parties, I hold that the mortgage was for Rs. 7,000.

In my opinion, therefore, the decision of the learned Subordinate Judge is correct. But it requires modification in one respect. By the terms of the ekramama the mortgagee agreed that on payment of the full amount of the loan he would take "Rs. 100 as the consolidated amount of interest on the entire amount of the loan every month," There is no stipulation for compound interest and in this respect the original bond has been modified. The total payment fell short of Rs. 7,000 by Rs. 975 as found by the learned Subordinate Judge; therefore, the interest of Rs. 1,200 per annum will be reduced proportionately and simple interest at this reduced rate will be decreed on Rs. 6,025 from the 1st February 1911, when the payment was completed until the expiry of the period of grace which is fixed at six months from this date. Credit must also be given to the defendant for the payments by tankha amounting to Rs. 1,070. On-paying the amount so found due to the plaintiff within the period limited by this decree the defendant will be entitled to recover the property and the sale will be set aside. If the amount be not paid, the sale will stand and the defendant will receive the surplus of the sale-proceeds over the amount herein decreed.

It may be noted that if the contention of the appellant had prevailed and the bond had been held to have been a bond for Rs. 3,000, the interest on which, under the terms of the bond and ekramama, is compound interest at 18 per cent, with half yearly rests, the amount of the decree would have been much larger than it has now been found to be.

The result is, that the appeal is decreed , so far as the rate of interest is concerned and the decree of the Subordinate Judge "is modified as directed above. The appeal" is decreed with proportionate costs to both parties throughout.

The cross-objection is dismissed.

Jwala Prasad, J.

I agree.