NAND LAL MAHTON Vs. NAUBAT MAHTON

JUDGEMENT

(1.) The dispute in both the cases giving rise to these appeals relates to a common property. It consists of two holdings hearing Nos. 48 and 60 within the jurisdiction of the present Patna Municipal Corporation. Originally both these holdings were the property of one Bandhu Mahto. Bandhu Mahto had four sons (].) Fakira Mahto, (2) Chowa Mahto, (3) Gaja Mahto and (4) Mewa Mahto. Some fitly years back before the institution of the present suits, there was a partition effected in the family of Bandhu Mahto between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other. That means, as between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other, there was no severance of status inter se In the course of that partition the two holdings in suits are admitted to have fallen to the joint share of Fakira Mahto and Chowa Mahto. So far, therefore, there is no dispute between the parties. But subsequently there was a registered deed of sale executed on 24-11-1909 in respect of these holdings both by Fakira and Chowa in favour of Mewa Mahto and it is this deed of sale which is mainly responsible for the present litigation between the parties, It appears that thereafter but of course before 1931, Fakira died issueless and on his death all the properties jointly owned by Fakira and Ghowa came exclusively to the latter by survivorship. According to Chowa and his son Naubat Lal, the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and therefore, it did not convey and title to Mewa. In the meantime, Mewa died sometime before 1928 leaving behind him his sole surviving son Ramnarain as his heir and successor. This Ramnarain was married to Bhagwatia to whom he had, on the death of his father, sold these holdings in suit under a registered deed of sale dated 18-12-1928. Therefore, in 1931 there was a suit brought by Chowa and his son Naubat Lal both against Ramnarain and his wife Bhagwatia for a declaration that the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and that the same did not convey any title to Mewa Mahto or to his heir and successor. Therein there was also a prayer made for recovery of possession, It was numbered as Title Suit No. 15 of 1931. The trial court on contest dismissed that suit on 24-4-1933. In the meantime Chowa Mahto died. Therefore against that judgment there was an appeal taken by Naubat Lal alone which was numbered as Title Appeal No. 77 of 1933. While that appeal was still pending for disposal, there was, according to Naubat Lal, a compromise arrived at between all the parties and in support thereof a petition was also filed on behalf of all of them on 27-10-1933. Accordingly thereafter on 13-11-1933 the appeal was disposed of in terms of the compromise petition and the suit which was originally dismissed at the trial was thereafter decreed.

(2.) In the meantime during the pendency of this litigation, a number of transfers had already been effected in respect of these two holdings firstly by Bhagwatia and thereafter on her death by Ramnarain as her heir and successor. The first transaction made by Bhagwatia was on 21-4-1932. It was a simple mortgage in favour of one Antu Singh. Thereafter on 1-4-1933 she executed a rehan deed in favour of one Ramautar and thereunder the previous mortgage under the document dated 21-4-1932 was satisfied. Subsequently Ramautar on 16-2-1936 assigned this rehan deed to one Khadera Hajam. These transactions were, however, obviously hit by the rule of lis pendens. Therefore, if the aforesaid deed of sale dated 24-11-1909 was a sham and faizi transaction and did not convey any title to Mewa Mahto, as was ultimately held by the compromise decree given in the aforesaid Title Appeal No. 77 of 1933, neither the predecessor-in-interest of Ramnarayan nor the transferees under the aforesaid mortgage document dated 21-4-1932 and the rehan deed dated 1-4-1933 got any title in the holdings in suit.

(3.) But the case of Ramnarayan seems to be that his wife Mosst. Bhagwatia was not a party to the aforesaid compromise embodied in the petition dated 13-11-1933 and she did not sign the petition. As such, the decree passed in the aforesaid Title Appeal No. 77 of 1933 was not binding on her and, therefore, the title which was vested in her on the basis of the aforesaid deeds of sale dated 24-11-1909 and 18-12-1928 was not affected by that compromise decree. Accordingly on her death which was effected some time in 1957, her title in the two holdings was rightly inherited by him as her husband as she died issueless. Thereafter on 21-8-1958, it appears, he sold that title which then consisted of bare equity of redemption to one Nandlal.