RAMACHANDRA PD SINGH Vs. RAMPUNIT SINGH

JUDGEMENT

(1.) This appeal by defendants 1 to 10 (defendants 1st party) arises out of a suit for a declaration that the mortgage bonds dated 18-9-1925, 2-11-1928 and 4-1-1929 were forged, fraudulent, fictitious, without valid necessity and consideration and were not genuine and binding against the plaintiffs and the debts alleged to have been incurred were illegal and immoral. The two plaintiffs further wanted a declaration that the preliminary and the final decrees in Mortgage Suit No. 72 of 1938 obtained on the basis of those bonds were illegal and invalid and the auction sale dated 8-9-1942 and the delivery of possession dated 10-1-1943 in Mortgage Execution Case No. 203 of 1941 were altogether null and void and ineffective and they were not at all binding on the plaintiffs. They wanted a further declaration that all the processes of the rent suit and the execution case were suppressed and the possession of defendants 1st and 2nd parties in respect of the lands described in Schedule 1 of the plaint were illegal. The plaintiffs further made a prayer for a decree for recovery of possession in respect of those properties described in Schedule 1 of the plaint and a decree for confirmation of possession in respect of the properties described in Schedule 2 of the plaint. There was still a further prayer for mesne profits to the tune of Rs. 603 besides the mesne profits pendente lite and future.

(2.) According to the genealogical table given in the plaint, one Badri Singh had two sons Rambhagat Singh and Sahdeo Singh (defendant 3rd party). Rambhagat Singh had two sons Rameshwar Singh and Kishore Singh. Mt. Ramnagina Kuer (plaintiff No. 2) is the widow of Rarneshwar Singh, whereas Rampunit Singh (Plaintiff No. 1) is the son of Kishore Singh. Plaintiff No. 1 was a minor and he was represented in the suit by his mother Mt. Ramjati Kuail Sahdeo Singh was impleaded as defendant No. 15 but after his death his heir was substituted while the suit was pending in the trial Court. The case of these two plaintiffs was that Rameshwar Singh and Kishore Singh were separate in mess and business from Sahdeo Singh. Kishore Singh and Rameshwar Singh had more than sufficient income from the properties and they had no necessity to take any loan. Defendants 11 and 14 (defendants 2nd party) filed Mortgage Suit No. 72 of 1938 in the court of the Subordinate Judge at Darbhanga against the plaintiffs, defendant 3rd party and other co-sharers on the basis of those three bonds, the first one alleged to have been executed by all the three, viz., Sahdeo Singh, Kishore Singh and Rameshwar Singh and the other two executed by Rameshwar Singh and Kishore Singh only and defendants 2nd party obtained a fraudulent ex parte decree on 13-7-1939 by suppressing the processes. Thereafter defendants, 2nd party in collusion and concert with the defendants 1st party got the said fraudulent ex parte decree made final by taking illegal steps and they filed Execution case No. 203 of 1941. The processes of the execution case also were suppressed and the properties described in Schedule 1 were sold on 8-9-1942 and purchased by the defendants 2nd party themselves but in the names of defendants 1st party who were their close relations. Plaintiff No. 1 was a minor and was under the guardianship of his mother Mt. Ramjati Kueri and plaintiff No. 2 was a purdanashin lady. Taking advantage of this, defendants 1st and 2nd parties took all the steps illegally and the plaintiffs came to know of those proceedings regarding auction sale and delivery of possession on 15-12-1942 through one Rambadan Thakur and thereafter they filed Miscellaneous Case No. 7 of 1953 but it was dismissed for default and an application to restore that case also was rejected summarily. The mortgage bonds in question were fraudulent and without consideration and the debts, if any, were incurred for immoral purposes and were entirely abyavaharik. In fact the father and grand-father of plaintiff No. 1 did not take any loan from the defendants 2nd party either alone or along with defendant 3rd party, nor there was any necessity for the loan, The name of plaintiff No. 2 was Mt. Ramnagin Kuari but she was described as Mt. Chandramaula Devi (Chandra Kala) and the Minor plaintiff No. 1 was put under the guardianship of Sahdeo Singh in the mortgage suit and that by itself was sufficient to indicate the fraud committed by the mortgagees and the auction purchasers. Notice on Sahdeo Singh was not served and ultimately a pleader was appointed as guardian-ad-litem for minor plaintiff No. 1 but he also did not take proper steps to protect the interest of the minor and, therefore, the decree and the sale were null and void. Defendants 1st and 2nd parties in collusion and concert with one another illegally dispossessed the plaintiffs by force from the lauds described in Schedule 1 on 15-2-1943 and they interfered with the possession of the plaintiff with regard to the lands described in Schedule 2 of the plaint. The plaintiffs requested defendants 1st and 2nd parties to give up their illegal possession and not to interfere with the possession in respect of the lands described in schedule 2 but they paid no heed and hence the plaintiff instituted the suit on 7-9-1945 for the reliefs already indicated. Schedule J contains a description of the proprietary interests in various villages which belonged to the plaintiffs at one time. Schedule 2, however, is in respect of 2 kathas of land from the south out of 4 kathas on which the plaintiffs had their residential house. Defendants 1 to 4 and 10 filed a written statement and their case was that there was no fraud and collusion as alleged in the plaint. According to them, the processes in the suit and in the execution case were served properly and there was no fraud at all by the decree holders or the auction purchasers either in the aforesaid suit or execution case. The three mortgage bonds which were the basis of Mortgage Suit No 72 of 1938 were genuine, for considerations and the loans were taken for legal necessity and family benefit. The executants of the bonds were not of bad character and the debts were incurred not for immoral purposes. They asserted to be the bona fide purchasers of the lands in suit for value and they were not the benamdars of defendants 2nd party. The name of plaintiff No. 2 had been correctly mentioned in the plaint of the mortgag suit and summons had been served on her properly. The minor plaintiff No. 1 was placed under a proper guardian and ultimately the pleader guardian ad litem appointed for him had properly watched the interests of that minor and as such the decree and the sale were quite valid. No prejudice was caused to the plaintiffs and they were not entitled either to possession or mesne profits.

(3.) This suit had a chequered career. The suit was first dismissed by the trial court by judgment dated 23-12-1947 and the court then came to the following findings: 1. Plaintiff, No. 2 was described in mortgage suit by correct name of Chandra Kala Kuar and the summons in the mortgage suit had been properly served on her. 2. Plaintiff No. 1 was under the guardianship of Sahdeo so long as the latter was alive and plaintiff No. 1 was properly represented by the guardian ad litem in the mortgage suit. 3. The said guardian ad-litem took proper steps on behalf of the minor and he was not guilty of fraud or collusion and as such the decree was binding on plaintiff No. 1.