PURNA CHANDRA TEWARI Vs. GOBINDA MISHRA

JUDGEMENT

(1.) This appeal by the plaintiff is directed against a decision of the Additional Subordinate Judge of Purulia, dated the 25th July 1945, dismissing an appeal against decision of the Munsiff of Raghunathpur, dated the 24th March 1945. A cross-objection was filed in the lower appellate Court. This has been allowed and the suit has been remanded for a fresh decision on Issue No. 7 framed by the Munsiff and also on new issues directed to be framed by the Subordinate Judge. The appeal arises out of a suit for redemption.

(2.) The mortgaged property consists of a one anna share in a 'Kheraj brahmottar' interest in mouza Mettala. The 'Kheraj brahmottar' interest to the extent of four annas was held by four brothers, Hai'i Lall Tewari, Madhu Lall Tewari, Thakur Lall Tewari and Jatan Lall Tewari, each of the brothers being entitled to an interest of one anna. The one anna interest of Madhu Lall Tewari was mortgaged by his grandson, Jaso-danandan Tiwari (defendant No. 5), on the 26th May, 1921, to one Siva Narayan Mishra, father of defendants Nos. 1 to 3 and husband of defendant No. 4. Subsequent to this mortgage, on the 3rd November 1924, the Tewaris of the four branches executed an 'arpannama', dedicating some of the 'Kheraj brahmottar' interest to Sri Sri Durga Mata for the purpose of Durga Puja. This 'arpannama' included some of the mortgagee sued on the foot of his mortgage (Mortgage Suit No. 103 of 1934), and got a decree for sale. In this suit, the Diety was not impleaded. In execution of the decree, Kanai Lal Mudi (Defendant No. 6), purchased the mortgaged property on the 9th of December 1935, in full satisfaction of the decretal dues and got delivery of possession on the 3rd April 1936. Subsequently he sold his interest to defendants Nos. 8 and 9, who have themselves transferred a three pies share out of this interest to defendants Nos. 10 to 13. The present suit has been brought by the piety, represented by plaintiffs Nos. 1 to 6 as 'sebaits', for redeeming the entire mortgage. They have impleaded as defendants, defendants Nos. 8 and 14, whom they describe as 'sebaits' of the Diety, alleging that they are unwilling to join as plaintiffs. According to the plaintiffs, two members of each branch of the family were appointed as 'sebaits' of the Diety, plaintiffs Nos. 1 and 2 representing the branch of Hari Lall, Plaintiffs NOS. 5 & 6 the branch of Madhu Lall, plaintiffs Nos. 3 and 4 the branch of Thakur Lall, and defendants 8 and 14 the branch of Jatan Lall.

(3.) The defence substantially was that the 'de-bottar' grant was not valid, and that it was not acted upon, and, finally, that even if it was a valid and effective grant, the plaintiffs are entitled to redeem only the property governed by the grant and not the entire mortgaged property.