ANARO DEVI Vs. SHANKAR NATH

JUDGEMENT

(1.) This is an appeal by defendant No. 1 to a suit instituted by respondent Shankar Nath on the 16th of August. 1961, and is directed against the lower appellate Court's decree dated the 9th of January 1963.

(2.) Respondent No. 1, through his suit against the appellant and five others, sought a declaration that the mortgage deeds mentioned in para 10 (a) and (b) of the plaint and preliminary decree and the final decree passed on their basis in suit No. 380 of 1957 were void. ineffective and inoperative against property No. 674, Gali Ghanteshwar Maharaj Katra Neel, Chandni Chowk, Delhi, and the said property was not liable to be sold in execution thereof. The foundation of the suit filed by respondent No. 1 was that he along with the husband of defendant No. 2 and father of defendants 3 to 6 had been appointed a co-trustee in respect of the properties mentioned in paragraph 3 of the plaint the property in suit being house No. 674. Gali Ghanteshwar Maharaj, Katra Neel, Chandni Chowk, Delhi. In paragraph 2 of the plaint a pedigreetable was given showing that one Jagan Nath had two daughters Lachhmi Devi and Nikko Bibi. Nikko Bibi was shown to have died issueless. Lachhmi Devi, married to Behari Ji, had two sons, Bhola Nath father of respondent No. 1 and Shambhu Nath husband of defendant No. 2 to the suit and father of defendants 3 to 6. It was stated in the plaint that Smt. Nikko Bibi being the owner of the two properties mentioned in paragraph 3 of it had in the first instance made a will dated the 3rd of April, 1916, which was subsequently cancelled by her last will. made on the 19th of November, 1930, which was registered on the 20th of November. 1930. In paragraph 7 of the plaint it was stated that by her last will dated the 19th of November, 1930. Nikko Bibi provided that the previous will dated the 3rd of April. 1916, stood cancelled for all intents and purposes and that after her death both the houses mentioned in paragraph 3 of the plaint were to vest in God and the said properties were to stand dedicated as wakf properties. It waslleged that the said will prescribed that Shambhu Nath and Shankar Nath would be trustees of the properties covered by the will and that in a part of house No. 674, Gali Ghanteshwar Mahara.i, Katra Neel, Chandni Chowk, Delhi, the family idol of 'Shri Radha Krishan Ji, which she and her ancestors had been worshipping, would be installed and that the income derived from both the properties shall in the first instance be applied in the Bhog and Sewa etc. of the said "Radha Krishan Ji'' and the balance would be used for repairs and the remainder, if any. would be appropriated by the trustees to their personal use. The trustees were not entitled to alienate any of the said properties In any manner whatsoever. It was stated in paragraph 8 of the plaint that Smt. Nikko Bibi died in the year 1932 and respondent No. 1 and the predecessor in interest of defendants 2 to 6 came in possession of the said properties as trustees. In the year 1931 during her lifetime Nikko Bibi was stated to have installed the idol of "Shri Radha Krishan Ji" in the property at Delhi. It may be clarified that in paragraph 3 the property in Delhi was mentioned in clause (a) and the property in Banaras was mentioned in clause (b). In paragraph 9 of the plaint it was stated that the properties covered by the will were mentioned as wakf properties in municipal records and respondent No. 1 and predecessors-in-interest of defendants 2 to 6 had acted as trustees of the said properties. It was then stated in paragraph 10 of the plaint that late Shambhu Nath, the husband of defendant No. 2 and the father of defendants 3 to 6 illegally and without any right, title or interest and against the express terms of the last will of Nikko Bibi dated the 19th November, 1930, and without the plaintiff's knowledge and for his personal use and gains illegally mentioning the property in Delhi as his own. had on the basis of the alleged title derived from the will made on 3rd April. 1916. by Nikko Bibi mortgaged without possession house No. 674. Gali Ghanteshwar Maharai, Katra Neel, Chandni Chowk. Delhi, with the present appellant and giving the details it was stated that the first mortgage deed "executed by Shambhu Nath in favour of the appellant was dated the 28th of July, 1954. registered on 9th August, 1954; while the second mortgage deed similarly executed by Shambhu Nath in favour of the present appellant was dated the 1st of June. 1955, and was registered on 4th October. 1955. The consideration in respect of each of the mortgage deeds was stated to have been Rs. 1,500.00. In paragraph 11 the plaintiff stated that the impugned mortgages were absolutely void, inoperative and ineffective and it is remarkable that he enumerated grounds (a) to (e) in the said paragraph for supporting his assertion. In ground (a) it was asserted that the mortgages were void because Shambhu Nath had never acquired any right, title, or interest in the properties covered by the mortgages by virtue of the will, dated the 3rd of April. 1916. or otherwise. In clause (b) of paragraph 11 of the plaint respondent No. 1 asserted that the will dated the 3rd of April. 1916, had been cancelled by Smt. Nikko Bibi through her last will dated the 19th of November. 1930 which had been registered on 20th November, 1930. The two assertions contained in clauses (a) and (b) of para 11 stood apart from the rest of them and were of necessity to be adjudicated upon. In clause (c) of para 11 respondent No. 1 stated that the alienations covered by the mortgages were against the express terms of the will dated the 19th of November. 1930. That challenge was followed by the assertion that the alienations were for personal gain and were effected without the knowledge of the plaintiff. The courts below were attracted mostly to the controversy raised by clause (c) of para 11 of the plaint.

(3.) The litigation, in my view, was concerned with all the grounds of attack enumerated in paragraph 11 of the plaint. Anaro Devi. the appellant had obtained a decree, on the basis of the two mortgages executed in her favour by Shambhu Nath and the suit was for a declaration that thedecree based on those mortgages was void. inoperative and inexecutable against the property in suit. If the courts were to find that the mortgages were void or ineffective for any reason whatsoever, they were of necessity to hold that the decree obtained by the appellant on their basis was not executable against the property in suit. In paragraph 12 of the plaint it was mentioned that Shambhu Nath had died in the year 1956, leaving. behind defendants 2 to 6 as his heirs and legal representatives and in paragraph 13 it was stated that the present appellant had filed a suit for the recovery of Rs. 3716.00 against defendants 2 to 6 on the basis of the mortgages mentioned in paragraph 10 of the plaint and had obtained the final decree on 25th February, 1960, in suit No. 380 of 1957. It was alleged in paragraph 14 that the appellant had applied for execution of the decree and in the course of the proceedings obtained an order for getting the property auctioned. In paragraph 15 of the plaint it was stated that the preliminary and the final decrees based on the "impugned mortgages were void. ineffective and inoperative against house No. 674 for two distinct reasons. Ground No. (a) urged through paragraph 15 of the plaint was: