SHIVU SHIDDA CHAUGULA Vs. LAKHMICHAND TULJARAM KOTHARI

JUDGEMENT

(1.) THE appellants were plaintiffs in a suit for a declaration that the plaint property was not liable for attachment and sale in execution of a money decree obtained by the predecessor-in-title of the defendant, in suit No.493 of 1923, against their mother Avubai as the heir and legal representative of their deceased father Krishna Joti, and also for an injunction against the defendant.

(2.) THE material facts are as follows. Krishna Joti died in May, 1922, leaving his widow, Avubai, and two daughters, who are the plaintiffs. One Anantrao brought suit No.493 of 1923 on two promissory notes passed by Krishna Joti for the recovery of the amount due there under from the estate of the deceased in the hands of the widow. During the pungency of the suit Avubai executed a deed of surrender (exhibit 54) in the plaintiffs' favour on July 1, 1924, in respect of the whole estate of her husband. Suit No.493 of 1923 ended in a compromise decree passed on October 25, 1924, under which Avubai was to pay the debt by instalments, and in default the plaintiff was to recover the decretal amount by sale of survey No.381 and survey No.443|1 on which a charge was created, and, in case of deficit, from other properties of the deceased. THE plaintiffs were not parties to this suit. THE decree-holder assigned the decree to the defendant who has applied for execution by sale of survey No.381. Before this, on September 21, 1924, the plaintiffs had mortgaged survey No.381 for Rs. 1,000 to one Dadu. On a darkhast having been filed under the decree aforesaid for the sale of survey No.381 (darkhast No.392 of 1929) Dadu brought a suit No.647 of 1930 for a declaration that survey No.381 was not liable to attachment and sale and for an injunction against the defendant. THE defendant, however, by a purshis admitted the mortgage in favour of Dadu and asked for the right to redeem the property from such mortgage. THE suit was accordingly dismissed on December 11, 1931, and under the darkhast only the equity of redemption in the property was put up for sale. THE plaintiffs have accordingly brought the present suit.

(3.) IN the present appeal no contentions based on Section 52 of the Transfer of Property Act or estoppel have been raised. Mr. Murdeshwar has contended, firstly, that after the surrender Avubai did not represent Krishna Joti's estate, and the compromise, therefore, could not bind that estate ; secondly, that Section 53 of the Transfer of Property Act does not apply as the surrender was not a transfer and there is no evidence of fraud ; arid, thirdly, that Section 47 of the Civil Procedure Code does not apply. Mr. Desai on behalf of the respondent has contended that exhibit 54 being a collusive document, it cannot be said that there was any] real surrender at all, and that if it be held that it was a surrender, it amounted to or involved transfer, and, therefore, Section 53 of the Transfer of Property Act applies. Thirdly, he has contended that Avubai having entered the compromise in her character as representing the estate, the compromise decree is binding on the reversionary, the present plaintiffs. Fourthly, he has contended that the plaintiffs are liable Under Section 128 of the Transfer of Property Act, and that Section 47 of the Civil Procedure Code applies as the plaintiffs are Avubai's "representatives in interest. "