KISHORI CHANDRA Vs. SURAJ NARAIN SINGH

JUDGEMENT

(1.) This appeal is by the plaintiffs, and has been brought from a judgment and decree of the Additional Subordinate Judge of Hazaribagh, dated 20-12-1946, by which he dismissed their suit.

(2.) There were three brothers, Silwant Sahay, Balwant Sahay and Bhagwat Sahay. The last brother died' leaving a widow named Deoki Kuer and a son named Rup Chander. The plaintiffs are two in number, Kishori Chander and Umesh Chander, and they are the sons of Silwant Sahay. Silwant Sahay had brought a partition suit in 19Z8, and it has been numbered as partition suit No. 273 of 1918, in which his brother Balwant Sahay and his nephew Rup Chandar were the defendants. A preliminary decree was passed in the suit, and a first appeal was brought to the High Court. The appeal ended in a compromise under which the shares of Silwant Sahay and Balwant Sahay were defined as being half and half in respect of the joint family properties but property No. 2 as described in the plaint of the suit out of which this appeal has arisen was given to Deoki Kuer as maintenance for her life. Her son, Rup Chander, had died during the pendency of the appeal. This agreement arrived at between the parties was registered on 14-6-1920. As a result of this agreement, the partition suit, which was then pending in the trial Court for preparation of a final decree, was dismissed for non-prosecution on 17-3-1922.

(3.) On 17-4-1925, the two brothers, Silwant Sahay and Balwant Sahay, executed a mortgage bond in favour of the original defendant, Bishun Lal Singh, for a sum of Rs. 4,000/-, and the property mortgaged Was property No. 1 of the plaint of the suit. In 1931, the mortgagee brought a suit on the basis of the bond, and obtained an 'ex parte' decree, and, in execution of that decree, property No. 1 was sold and purchased by him on 8-8-1934. As the mortgage debt was not satisfied out of the proceeds of that sale, action was taken under Order 34, Rule 6, Civil P. C. with the result that, on 26-10-1938, property No. 2 of the plaint was also sold, and the mortgagee took delivery of possession of this property as well,