SARDA PRASAD SINGH Vs. UMESHWAR PRASAD

JUDGEMENT

(1.) The plaintiff has preferred this appeal against the decision of the Additional Subordinate Judge, Monghyr, affirming the judgment and decree of the First Additional Munsif, Monghyr, dismissing his suit for redemption of certain usufructuary mortgage bonds.

(2.) The admitted facts are these. Two persons named Prem Singh and Shobha Singh were the tenure holders in respect of certain mokarri interest in village Basudeopur. After their death, their heirs gave the tenure in usufructuary mortgage to defendant No. 1 of the first party under certain bonds. Thereafter, the mortgagors executed three simple mortgage bonds in respect of 12 annas interest in the tenure in favour of the same mortgagee. After some time, the mortgagors executed two sale deeds dated the 7th August, 1933 and 4th September, 1933 in respect of this 12 annas interest in favour of Subodh Prasad Singh (defendant No. 11 of the second party), who was then a minor. In order to enforce the simple mortgage bonds, defendant No. 1 instituted three mortgage suits, which were numbered as 217 and 218 of 1933 and 32 of 1934. In these suits, the original mortgagors and their heirs were impleaded as defendants first party, while minor Subodh Prasad Singh was impleaded as the sole defendant second party under the guardianship of his grand-father Hansraj Singh, as his father Uchit Singh died before the institution of the suit and after the execution of the sale deeds. As his natural guardian did not appear, pleader guardians ad litem were appointed to represent Subodh and they filed written statements on his behalf in the three suits. The suits were decreed, and in execution of these decrees, the -/12/- interest in the tenure covered by the three simple mortgage bonds was sold at auction sales in July, 1938 and purchased by defendant No. 1, who obtained delivery of possession through Court in 1941.

(3.) On the 29th April, 1951, Jagdeo Singh and others of the defendants second party sold -/4/-interest out of the interest purchased under the sale deeds dated the 7th August and 4th September 1933 to the plaintiff; and on the basis of this sale deed the plaintiff instituted the present suit for redemption of usufructuary mortgages in respect of this interest. Defendants first party resisted the claim of the plaintiff on the ground that the right to redeem the usufructuary mortgages on the basis of the sale deeds dated the 7th August and 4th September 1933 had been extinguished after the sales in execution of the simple mortgage decrees. The plaintiff, however, pleaded that the processes in the three mortgage suits and the relevant execution proceedings against Subodh Prasad Singh had been fraudulently suppressed, and, the sales held in these proceedings were illegal and not binding on Subodh Prasad Singh and other members of the joint family inasmuch as they were not properly represented in the mortgage suits and execution proceedings.