MOHAN CHUNILAL Vs. DIGAMBAR SHANKAR

JUDGEMENT

(1.) THIS appeal arises out of a suit for a declaration that the sale of Survey Nos. 121 and 127 of Utran in darkhast No. 87 of 1935 is illegal and not binding on the plaintiff, and for an injunction restraining the defendants from taking possession of them. The facts of the case are undisputed. Of the two lands in suit Survey No. 127 was the ancestral property of one Shankar Sampat Patil, and Survey No. 121 belonged to the defendants who agreed to sell it to Shankar Sampat Patil for Rs. 7,000. Under that agreement Shankar was to pay Rs. 4,000 at once, and the balance of Rs. 3,000 with interest within a year. Shankar paid Rs, 4,000 to the defendants in January 1921, and took possession of the land, but he failed to pay the balance, and died in February, 1923. He left no issue; and his heirs were his two widows, Sakhubai and Banubai, but his mother, Rangubai, having taken wrongful possession of his property, Sakhubai and Banubai filed a suit against her and recovered possession of the property. In the meantime the defendants filed Suit No. 46 of 1925 against both the widows and Rangubai to recover the unpaid purchase-money and obtained a decree for Rs. 3,000 with interest on January 30, 1926. By executing the decree in two darkhasts, one in 1926 and the other in 1927, the defendants were able to recover Rs. 975. Thereafter the senior widow, Sakhubai, took the plaintiff in adoption on September 11, 1928. Banubai having disputed his adoption, Sakhubai, as his next friend, filed Suit No. 870 of 1928 and obtained a decree for possession against Banubai and others on April 29, 1930. She executed that decree in darkhast No. 735 of 1980, and recovered possession of Shankar's property as the minor plaintiff's guardian.

(2.) EVEN after the adoption, the defendants gave a darkhast in 1929 against the original judgment-debtors, and succeeded in recovering Rs. 692-7-6 on August 30, 1930. In that darkhast Sakhubai did not put forward the plaintiff's adoption, nor did she do so in the next darkhast which was filed in 1933 and proved abortive. The last darkhast No. 87 of 1935 also was presented against the original judgment-debtors, and after the proceedings went on for nearly three years, Sakhubai for the first time contended on October 4, 1938, that, as she had taken the plaintiff in adoption, the names of herself and her co-widow, Banubai, should be struck off from the darkhast. By that time the decree had already become more than twelve years old, and as the lands, Survey Nos. 121 and 127, which had been taken out for sale in that darkhast, had not yet been transferred to the plaintiff's name, the defendants refused to join the plaintiff as a party to the darkhast or to strike out the names of Sakhubai and Banubai. The plaintiff also did not make any application to be joined as a party to the darkhast. So the darkhast was proceeded with against the original judgment-debtors alone, and Survey Nos. 121 and 127 were sold in auction to the defendants on October 21, 1938, the former for Rs. 3,641 and the latter for Rs. 2,401. Then the plaintiff through his natural father as his next friend brought this suit

(3.) IN the present case there was no such collusion between the original judgment-debtor Sakhubai and the defendants; on the other hand Sakhubai was trying to guard the interests of her adopted son by not raising any objection until twelve years had elapsed after the passing of the decree, and a fresh darkhast became barred under Section 48 of the Civil Procedure Code. IN all the litigation carried on by her for the recovery of her husband's property for the benefit of her adopted son, she represented herself as his guardian and there was no conflicting interest between her and her son. Hence the principle laid down in Shankar Daji v. Dattatraya Vinayak does not help the plaintiff in this case.