JHULAN PRASAD Vs. RAM RAJ PRASAD

JUDGEMENT

(1.) This is a Second Appeal by defendant No. 5 Jhulan Prasad from a judgment and decree of the Subordinate Judge, Gopalganj dated 16th March, 1974, who affirmed the judgment of the Additional Munsif, 1st Court, Gopalganj decreeing the suit for redemption in favour of the plaintiffs in respect of certain land and directing mesne profits to be determined in a separate proceeding. The suit land measured 18 kathas 11 dhurs of R.S. Plot No. 789 in village Parsurampur within Gopalganj Police Station. It belonged originally to Bhukhal Mian and Sukhal Mian sons of one Kurkut Mian of the same village. Bhukhal Mian died leaving behind his widow Mst. Chatia and a minor son Shamsuddin.

(2.) On 16th May, 1949, Sukhal Mian and Mst. Chatia executed a Zarpeshgi deed in favour of respondent No. 4 Jamuna Mahton (defendant No. 2) for a sum of Rs. 1,000 in respect of the suit land and put him in possession. On 5th Nov. 1959, Sukhal Mian and Mst. Chatia for self and as guardian of her son Shamsuddin, executed a registered sale deed (Ext. 2) in respect of the suit land in favour of the plaintiffs who are respondents Nos. 1 and 2 in this appeal. When the zarpeshgidars did not accept the zarpeshgi money tendered to them, the plaintiffs deposited the same in Court under Section 83 of the T.P. Act and brought the present suit for redemption. In the meantime the zarpeshgidars were changing hands, one transferring his Zarpeshgi right to another. The last Zarpeshgidar was the appellant Jhulan Prasad (defendant No. 5). He denied the right of the plaintiffs to redeem the mortgaged property. He contended that Mst. Chatia had no right to sell the right and interest in immovable property of the minor. He further contended that Kurkut Mian the father of Sukhal Mian and Bhukhal Mian died leaving behind his daughter also named Kadirani; that Bhukhal also had a daughter named Hadisan; and that both Kadirani and Hadisan came into possession of their share in the suit land. He pleaded that Kadirani not being a party to the Zarpeshgi deed, her share to the extent of 3 kathas 14 dhurs did not pass to the Zarpeshgidar or to the plaintiffs under the sale deed (Ext. 2) and the same had been sold to him under a registered sale deed (Ext. A/1) dated 2nd June, 1964. He further pleaded that Hadisan the daughter of deceased Bhukhal had sold 6 kathas 16 dhurs in the suit plot to one Chandraman Bhagat under Ext. A on 2nd November, 1961 when her brother Shamsuddin was already dead. Thus, the appellant (defendant No. 5) claimed 3 kathas 15 dhurs of land as purchaser from Kadiran and the rest as Zarpeshgidar.

(3.) The two courts below have held: (i) that Mst. Kadirani was not the sister of Bhukhal Mian and Mst. Hadisan was not his daughter and they had no right to execute the sale deeds Exts. A/1 and A respectively, and that these two sale deeds were of Farzi nature; (ii) that the sale deed (Ext. 2) dated 9-11-59 executed by Bhukhal Mian and Mst. Chatia for self and as guardian of her minor son Shamsuddin in favour of the plaintiffs was valid and the plaintiffs were entitled to redeem the property.