JOYGOVINDA PROSAD SHAH Vs. DWARIKA PROSAD SHAH

JUDGEMENT

(1.) This is a first appeal from the judgment and decree of the learned Additional Subordinate Judge, A. V. D., dated 22nd April 1946, by which he dismissed the plaintiff's suit with no order as to costs.

(2.) The suit instituted by the plaintiff, Joygobinda Prasad Shah, against Dwarikaprosad Shah and 11 others, upon a registered mortgage-bond executed by the father of defendant 1 on 30th September 1929, whereby he mortgaged certain lands and houses in favour of the plaintiff as security for a loan of Rs. 8244-3-0 with interest at the rate of 10 per cent per annum. During the subsistence of the mortgage, he transferred some of the mortgaged properties to defendants 2 to 12. Defendants 3 and 4 were in possession of some of the mortgaged houses built upon land belonging to the Railway, and defendants 6 to 12 were in possession of some of the remaining mortgaged property. In the mortgage bond the property mortgaged was described by their dag and patta numbers in use before the last Resettlement. At the last Re. settlement, the old numbers and pattas were given new numbers as shown in the schedule attached to the plaint. The area comprised in the new numbers and pattas is also mentioned in the schedule. The plaintiff sought a decree for the sale of the mortgaged property for a sum of Rs. 6000 including interest then due and costs of the suit, with future interest from the date of the suit till payment.

(3.) Defendants 1, 5, 8 and 9 did not appear and contest the suit. Defendants 2, 3, 4, 6, 7,10,11 and 12 denied the plaintiff's claim and alleged that the bond in suit was insufficiently stamped and was ineffective as a mortgage bond for want of proper registration. They further alleged. that the mortgagor, the deceased Ramkhelaun Shah, was not the karta of the joint family and that the debt in question was not incurred for the family necessity, nor was it for its benefit. They claimed to be bona fide purchasers of the land for value and without notice of the encumbrance, and also pleaded that the suit was time barred and not maintainable in the absence of the joinder of the coparceners of the joint family of the plaintiff.