UNNAO COMMERCIAL BANK LTD Vs. KAILASH NATH

JUDGEMENT

(1.) THIS appeal has been referred to a Bench by a learned Single Judge as it appeared to him that some points of importance on which, in his opinion, the law was not uniform, arose in the case and required consideration by a Bench,

(2.) THE appeal arises out of a suit brought by the Unnao Commercial Bank, Ltd. , for a partition of a half share in two houses situate in Muhalla Bashiratganj in the city of Lucknow. Baiju and lachman Prasad, who were brothers, owned two houses and certain other property. Lachman prasad died in 1930 leaving a son Ram Prasad who is defendant 1. Baiju died in November, 1934, without any issue. His widow Smt. Janaka, is, however, alive.

(3.) ON the death of Baiju, Bam Prasad executed a sale deed in favour of Batan Chand in respect of a half share in two houses and some moveable property which belonged to him and Baiju jointly. This sale deed was executed for obtaining money for filing a suit against Smt. Janaka and two others, Smt. Jasrath Dei and Mahadeo Prasad, in whose favour Baiju had executed a will which, according to Ram Prasad, was invalid. Bam Prasad was unable to finance the litigation and, in order to establish his claim to the property, he thought it fit to sell a half share of the property to batan Chand in order to raise funds for fighting out the suit. This sale deed in favour of Batan chand was executed on 14-12-1934. A suit was thereafter instituted jointly by Bam Prasad and batan Chand against Smt, Janaka, Smt. Jasrath Dei and Mahadeo Prasad. The suit was decreed on 17-4-1935, for a declaration that Bam Prasad was the owner of a half share in the property and for possession. An appeal was filed against this decree by Smt. Janaka and others, but this appeal was ultimately dismissed for default of prosecution. A review application against the dismissal of the appeal was also dismissed on the 3-5-1940.