LALJI SAH Vs. SAT NARAIN BHAGAT

JUDGEMENT

(1.) The suit, out of which this appeal arises, was instituted by the plaintiff-respondent. Ist party for a declaration that a decree in small cause court suit No. 228 of 1938, obtained by defendant No. 1, Ramswarath Thakur (defendant No. 2, who is Chandradeo Sah, mentioned as a decree-holder in paragraph 7 of the plaint seems to be a mistake) and the auction sale in execution case no. 1774 of 1938 in execution of the decree and the consequent delivery of possession of the properties described in the schedules appended to the plaint are illegal and void and they may be set aside. There is also a prayer for a declaration that certain zarpeshgi bonds in favour of Lalji Sah, the defendant 2nd party, and Lauhar Singh, the defendant 4th party, are illegal and without legal necessities. The last prayer is for recovery of possession of the property described in schedule 2 to the plaint. The plaintiff, who calls himself as Satnarain Bhagat, son of Gopal Bhagat, instituted the suit on the 26th May 1952 as a minor through his next friend Sukhat Bhagat, his father's sister's husband. But during the pendency of the suit he filed a petition that he attained majority on the 17th August 1953 and the lower court accepted him as major with effect from that date. In order to appreciate the case of the parties, it is necessary to bear in mind the following genealogical table: <FRM>JUDGEMENT_182_AIR(PAT)_1962Html1.htm</FRM> It is admitted that Damri Mahto died leaving two sons, namely, Lila Mahto and Nankhu Mahto, Lila died leaving a son, Gopal Mahto in a state of jointness with Nanku, who then became the karta of the family; and both Nankhu and Gopal were recorded in the record of rights in respect of their family properties. Nanku had two sons and a daughter Musammat Chimni. The two sons, Durga and Kali, had each a daughter. Both the sons died during the life of Nanku, who also died subsequently in a state oE jointness with Gopal, Nanku's daughter Chimni and the daughters of Nanku's sons are also dead. Musammat Dhanwa, defendant No. 15 described as the defendant 6th party, is the widow of Gopal. Defendant No. 16 is alleged to be the son of Chimni, but this fact is disputed by the contesting defendants 3, 17 and 18 who are the appellants in this Court. The learned advocates for the parties have agreed that it is not necessary to decide in the present case whether defendant No. 16 is the son of Musammat Chimni or not.

(2.) The property described in Schedule 1 to the plaint is the agricultural land measuring 6 bighas 13 kathas 8 dhurs and is the ancestral land of Gopal and Nanku. The property described in Schedule 2 to the plaint is the interest of a usufructuary mortgagee in some areas of culturable lands acquired under usufructuary mortgage bonds dated the 17th October, 1921, the 11th July, 1924 and the 23rd June 1925, respectively for Rupees 200, Rs. 220 and Rs. 227 executed by certain persons in favour of Nanku when he was alive. The properties of both the schedules are situated in village Ranpur where Gopal and Nanku lived and these are the properties which were auction-sold in execution of the small cause court decree, which was a compromise decree. The auction purchaser obtained possession of the properties through court on the 3rd November 1939. As only the right title and interest of the judgment-debtor passed at the sale, the property described in Schedule 1 to the plaint was subject to two zarpeshgi or usufructuary mortgage bonds. The first bond dated the 15th September 1937 was executed by Musammat Dhanwa for self and as mother guardian of her minor son named Satnarain in favour of Jhagru Sah (defendant No. 4) who is a brother of Lalji Sah (defendant No. 3) both being members of a joint family. The second mortgage bond was executed on the 6th June, 1941, by Musammat Dhanwa for self and as guardian of her minor son for Rs. 900 in favour of Mahadeo Singh, deceased father of Lauhar Singh (defendant No. 10) in order to satisfy the bond of 1937. Mahadeo Singh instituted a suit for redemption in 1942 against defendant No. 4 who pleaded the auction sale in execution of the small cause court decree and ultimately Mahadeo Singh withdrew that suit on the 17th August, 1944. The auction purchaser, Chandradeo Sah, executed a sale deed dated the 25th May, 1944 in respect of his right title and interest in the properties in Schedules 1 and 2 to the plaint for Rs. 1500 in favour of defendants 17 and 18, who are sons of Jammuna Prasad, a brother of defendant No. 3. Defendants 17 and 18 were added as parties to the suit by order No. 77 dated the 28th February, 1956 of the lower court.

(3.) Then the case of the plaintiff is that after the death of his father, Gopal he got possession of the disputed property through his mother until he was dispossessed on the 15th Magh 1358 Fasli: the 7th February, 1951. Then on an inquiry he learnt about the zarpeshgi bonds dated the 15th September 1937 and the 6th June, 1941, the redemption suit of 1941, the small cause Court suit, the decree and the auction sale and delivery of possession in pursuance of that decree. It is alleged that the mother of the plaintiff, Musammat Dhanwa, is a simpleton and Mahadeo Singh and Jhagru Sah got collusive zarpeshgi bonds executed by her without any consideration or legal necessity. It is then said that the plaintiff of the small cause court suit instituted that suit on the basis of a forged and fabricated handnote apparently executed by Nanku Mahto and Gopal Mahto and obtained a decree against the plaintiff on the basis of a fraudulent compromise petition after suppressing processes and without the appointment of a guardian-ad-litem to look after the minor's interest. The decree-holder similarly suppressed the processes in the execution case, as a result of which the properties were sold at a very low price and the auction purchaser obtained delivery of possession surreptitiously, although the value of the properties sold was not less than Rs. 7,000 on the 3rd April, 1939, the date of sale. It is further asserted that Muammat Dhanwa did not file any petition of compromise in the small cause court suit nor did she affix any signature or thumb mark thereto and she was grossly negligent as guardian of the minor in the suit as well as in the execution proceedings. Hence, the decree, the sale, the delivery of possession and the zarpeshgi bonds are said to be illegal and not binding on the plaintiff.