BARMESHWAR NATH PRASAD SINGH Vs. BABU KUER RAI

JUDGEMENT

(1.) The suit, out of which the present appeal arises, was instituted by the plaintiffs on the 12th of September, 1955. to enforce two mortgage bonds, one dated the 18th of March, 1952, 'executed by defendant No. 1 Bhrigunath Sahay in favour of plaintiffs 1 and 3 for a sum of Rs. 8,000.00, and the other dated the 25th of November, 1952, executed by the same Blirigunath Sahay fur a sum of Rs. 8,000.00 in favour of plaintiffs 2 and 5. Defendants 2 and 3 arc the minor sons of Bhrigunath Sahay (defendant No. 1). Original defendant No. 4 in the suit was Shrimati Ramdulari Kuer, wife of Kamla Prasad Singh, alleged to be a purchaser and subsequent mortgagee of a portion of the mortgaged properties. Defendant No. 5 Bhagwat Prasad alias Laloo Babu is a subsequent mortgagee in respect of some of the mortgaged properties. Defendants 1 to 3 appeared and fded a written statement admitting the claim of the plaintiffs. Defendant No. 5 also filed a written statement contending, inter alia, that the mortgage bond dated the 18th March, 1952, in favour of the plaintiffs, was not genuine and for consideration and that he himself was a mortgagee in respect of a portion of the mortgaged properties under a mortgage bond dated the 6th, of November, 1952. The suic was mainly contested by substituted defendant No. 4 Kamla Prasad Singh husband of the original defendant No. 4 Ramdulari Kuer. During the pendency of the suit, Ramdulari Kuer, original defendant No. 4, died on the 18th of December, 1955, and on an application filed by the plaintiffs on the 5th of January, 1956, her husband, Kamla Prasad Singh, and her two minor sons. Mar-kandey Singh and Jamuna Singh alias Kundan Singh, were substituted in her place as defendants 4, 4 (a) and 4 (b) respectively. Kamla Pd. Singh (hereinafter to be referred to as the defendant No. 4) filed a written statement on the 24th of April, 1956, in which he stated that his wife, Ramdulari Kuer, had entered into a contract for sale in respect of a portion of the mortgaged propeiues with the defendant No. 1 on the ist of December, 1951, and, in pursuance thereof, got a registered sale-deed executed in her favour on the 22nd of October, 1954, bona fide for value without notice of the plaintiffs' mortgages. He further submitted that the suit was bad for defect of parties, inasmuch as his youngest minor son, Banneshwar Nath Prasad Singh (the appellant before this Court), was not made a party to the suit. Thereupon, another application was made on b'chalf of the plaintiffs; on the 27th of June, 1956, for amendment of the plaint by adding the said Barmeshwar Nath Prasad Singh as a party defendant to the suit. In that application, it was specifically stated on behalf of the plaintiffs that they had no previous knowledge that the said Kamla Prasad Singh had one more son, namely, Barmeshvvar Nath Prasad Singh. That application was allowed, the plaint was amended and Bar-meshvvar Nath Prasad Singh was added as defendant No. 6. Two formal written statements were filed on behalf of the substituted minor defendants, one on behalf of Barmeshwar Nath Prasad Singh (de- fendant No. 6) and the other on behalf of Markan-dey Singh and Jamuna Singh alias Kundan Singh, through their pleader guardian ad litem. One of the pleas taken in the written statement on behali of Barmeshwar Nath Prasad Singh was that the suit had abated as a whole, as the plaintiffs never took step to substitute him, who was the sole legal heir of the deceased Ramdulari Kuer, within time, although the plaintiffs had full knowledge of the same from before. All the pleas taken in defence contesting the suit of the plaintiffs were overruled by the Court below and the plaintiffs' suit was decreed. Being thus aggrieved, this appeal has been presented in this Court by the said Barmeshwar Nath Prasad Singh (defendant No. 6) only; the other defendants did not file any appeal against the decree passed by the Court below.

(2.) The properties mortgaged in the first mort-gage bond were -- (i) certain proprietary interest in tauzi No. 7573, (2) a two-storeyed brick built house in Mahalla Shcoganj, one of the quarters of Arrah town, and (3) 20 Karis of land with a mud-built house, with tiled roof, situate in the same Mahalla Sheoganj. In the second mortgage bond, besides the above three items of properties, 6 karis pariti land with sehan in Mahalla Sheoganj was also mortgaged. Tn January, 1956, the proprietary interest mortgaged under the two bonds vested in the State of Bihar under the provisions of the Bihar Land Reforms Act. The suit to enforce the mortgages, as already said, was filed on the 12th of September, 1955. During the pendency of the suit, the plaintiffs filed a claim case under Section 14 of the Bihar Land Reforms Ac); before the Claims Officer in respect of the second mortgage bond dated the 25th of November, 1952. It appears that, after this appeal was filed in this Court, along with an application for permission to appeal in forma pauperis, on the 10th of May, 1957, the claim case was allowed for a sum of Rs. 9,480.00 on the 25th of September, 1958. The pauper application (M. J. O. No. 302 of 1957) was allowed on the 22nd of September, 1959, and this appeal was registered on the 24111 of September, 7959. A certified copy of the order of the Claims Officer is sought to be taken as additional evidence in this appeal.

(3.) The first point raised on behalf of the appellant is that, he being the sole heir of Ramdulari Kuer and not having been substituted in her place within time allowed by law, the suit abated so far as the interest of Ramdulari Kuer was concerned. It was submitted that the appellant was the only son of Ramdulari Kuer, and Markandey Singh and Jamuna Singh. alias Kundan Singh were her stepsons, being sons of Kamla Prasad Singh from his predeceased wife. The argument is that the above-named two step-sons of Ramdulari Kuer were not her legal heirs and the only legal heir, that is, the appellant, was not substituted in her place within the time allowed by law, and, as such, the suit abated so far as her interest was concerned. On the records of the case, however, there is no material for coming to a finding that Markandey Singh and Jamuna Singh were the step-sons of Ramdulari Kuer. In the written statement filed by Kamla Prasad Singh (defendant No. 4), it was not staged that they were his sons from another wife and all that was stated was that he had one more son, namely Barmeshwar Nath Prasad Singh, who had not been impleaded in the suit. In the formal writ-tea statement filed on behalf of the appellant also it is not specifically stated that the above two sons were the step-sons of deceased Ramdulari Kuer, and only a vague statement was made that the appellant was her sole legal heir. Even to the witnesses examined on behalf of the plaintiffs, no suggestion was made that Markandey Singh and Jamu-na Singh were the step-sons of deceased 'Ramdulari Kuer. On behalf of the defendants, only one witness was examined for defendant No. 5 Bhagwat Prasad, and to him also no suggestion was made about it. No witness was examined on behalf of the other defendants, including the appellant, to prove than he alone was the legal heir of the deceased Ramdulari Kuer and that Markandey Singh and Jamuna Singh were her step-sons. It is not, therefore, possible to hold that Markandey Singh and Jamuna Singh were not the sons of Ramdulari Kuer and that they were her arep-sons. The contention raised on behalf of the appellant in this regard, therefore, fails.