PRAN NATH Vs. BAL KISHAN

JUDGEMENT

(1.) THE facts giving rise to this second appeal are as under: on 29-4-1924 one gokal Chand mortgaged the suit property with possession in favour of Jamna Das. In a court sale held thereafter the father of defendants Nos. 1 to 6 purchased the mortgagee rights. On 14-5-1924 Gokal Chand made a will bequeathing the property to the present plaintiffs who were minors at that time. On 28-11-1928 Lal devi, mother of the plaintiffs, was appointed their guardian under the Guardians and Wards Act. On 6-6-1936 Lal Devi sold the equity of redemption in the property in dispute to the father of defendants Nos. 1 to 6 with the result that the equity of redemption as also the mortgagee rights vested in the same person, that is, the father of defendants Nos. 1 to 6. On 13-8-1947 the plaintiffs brought the present suit for redemption of the mortgage alleging that the sale of equity of redemption by their mother Lal Devi was not binding on them and they were entitled to redeem the mortgage. The suit was contested by the defendants (their father in the meantime having died) on various pleas including (1) that the suit was barred by time, and (2) that a suit for setting aside the sale of equity of redemption having not been brought within the period of limitation prescribed by Article 44 of the Indian Limitation Act, the present suit for redemption could not be maintained. The defendants also pleaded that the plaint was not properly stamped and that the property in dispute had been valialy sold by the mother of the plaintiffs in favour of the father of the defendants. The defendants further pleaded that they had made some improvements in the property in suit and were entitled to the costs incurred on the same. The point of court-fee was decided against the defendants on the ground that the plaint as brought was only for redemption of the mortgage and that the plaintiffs could not be asked to pay court-fee with regard to the relief for cancellation of the sale made by the mother of the plaintiffs. On merits the trial court framed the following three issues:-- (1) Is the suit within time? (2) Whether the property in suit was validly sold by the guardian of the plaintiffs in favour of the father of defendants Nos. 1 to 6 and what is its effect? (3) Had the defendants Nos. 1 to 6 made any improvements in the property in suit, if so at what costs and in case of decree in favour of the plaintiffs are they entitled to costs? The trial Court came to the conclusion that the suit of Ram Nath and Raj Kumar plaintiifs Nos, 1 and 2 was barred by time, but the suit of Vishwa Nath plaintiff No. 3 was within time inasmuch as his date of birth was 5th January 1924 and the suit had been brought within three years from his attaining majority. It also found that the property in dispute had riot been validly sold by the mother of the plaintiffs and that the sale was viodable at the instance of the. plaintiffs. No finding was recorded on issue No. 3 as the trial Court found the same to be unnecessary. In spite of the fact that the finding on issue No. 2 was, in favour of plaintiff No. 3 and that issue No. 2 had been decided in favour of the plaintiffs, the suit was dismissed by the trial Court on the ground that the plaintiffs were bound to sue for setting aside the sale of the equity of redemption by their mother, and having failed to bring the said suit, they were not competent to sue for redemption. In appeal the learned Additional District Judge Amritsar, at Jullunder, found that the suit by Vishwa Nath plaintiff No. 3 was also barred by tune inasmuch as he had failed to prove that he was born on 5th January, 1924 and had brought the suit within three years from his attaining majority. The learned Additional District judge endorsed the other findings of the trial Court, namely that it was necessary for the plaintiffs to have brought a suit "for setting aside the sale and they having failed to bring the same could not maintain the present suit for redemption. On the aforesaid findings the appeal was dismissed. The plaintiffs have now come up to this Court in second appeal.

(2.) MR. Daya Krishan Mahajan, learned counsel for the appellants, contends that the findings of the two courts below on the aforesaid points are erroneous and that the plaintiffs suit has been wrongly dismissed. He urges that the sale of equity of redemption by their mother was voidable at the instance of the plaintiffs and they must be deemed to have avoided it by the vetry act of bringing the present suit. His contention is that it was not at all necessary for the plaintiffs to bring a specific suit for avoiding the sale in question and that the present suit for redemption must at any rate be deemed to imply a prayer that the sale by Mst. Lal Devi may be set aside. He has drawn our attention to the pleas taken in the plaint where the plaintiffs have specifically impugned the sale. In support of his contention he relies on a number of rulings which are --Bijoy Gopal v. Krishna Mahishi Debi, ILR 34 Cal. 329 (PC), Petherpermal Chetty v. Muniandy Servai, ILR 35 Cal 551 (PC), Nagendra nath v. Mohini Mohan, AIR 1931 Cal 131, Lalit Kumar Das v. Nogendra Lal Das, air 1940 Cal 589, Abdul Rahman v. Su-khdayal Singh, ILR 28 All. 30, Jai Narain lal v. Bechoo Lal, AIR 1938 All 369, Jagdamba Prasad Lalla v. Anadi Nath Roy; air 1938 Pat 337 and Chhaju Mal v. Multan Singh, AIR 1936 Lah. 996.

(3.) MR. Daya Krishan Mahajan further challenges the finding of the learned additional District Judge on the point of date of birth of Vishwa Nath plaintiff. He contends that the copy of the birth. entry Exhibit P. 1 clearly relates to Vishwa nath and that the trial Court had arrived at a correct decision on the point.