DURGA PRASAD Vs. GITA KUMARI

JUDGEMENT

(1.) This second appeal has been filed by the defendant first party. The suit was for a declaration that defendant-appellant is only a Benamidar of the plaintiff with respect to a house described in schedule into the plaint and further that the plaintiff is not liable for any illegal act of omission and commission committed by the defendant first party with respect to the house in question. The trial court held that the appellant is a Benamidar of the plaintiff with respect to the house in question, but it dismissed the suit on the ground that maxim in pariddicto to poll cast conditio defendanties applied to the facts of this case. On appeal the lower appellate court affirmed the finding that the appellant was the Benamidar of the plaintiff but it allowed the appeal and decreed the suit as in its view the maxim in paridelicto portiorest conditio defendanti has no application to the facts of this case. Thereafter, this second appeal has been filed by the defendant no. 1.

(2.) The case of the plaintiff, shortly stated, was that Lala Baijnath Prasad purchased the disputed house from one Kloda Pd. Chatterji and others by virtue of a sale-deed dated 15th July, 1917. Later Lala Baijnath Pd. transferred the house to Ganga Kuer wife on one Sinheshwar Pd. Advocate by virtue of a registered sale-deed dated 7.3.1930. Ganga Kuer again sold the disputed house to Lala Baijnath Pd. for Rs. 2,000 who, according to the plaintiff's case, purchased it in the name of one Laxmi Narain Nagbansi. It is said that Lala Baijnath Pd. after the sale in his favour came in possession of the house with which Laxmi Narain Nagbansi had no concern. It is further said that Laxmi Narain Nagbansi executed a Ladavi deed in the year 1949 wherein it was stated that he was the Farzidar of defendant no. 1 Durga Pd, It is said that Lala Baijnath Pd. got his deed of Ladavi executed in the name of Durga Pd. who also was his Benamidar and was attached to him and used to learn shopping business. Further according to the plaintiff's case, defendant no. 1, i. e. the appellant had no concern with the disputed house, except that he was a Benamidar of Lala Baijnath Pd. A portion of the house was let out on rent to defendant no. 3 by Lala Baijnath Pd. sometime in the year 1934 on a monthly rental of Rs. 23. This defendant no. 3 paid rent to Lala Baijnath Pd. and after his death to his widow Munaka Kuer and when Munaka Kuer died he started paving rent to the plaintiff Further it is said that before Munaka Kuer widow of Lala Baijnath Pd. died in the year 1958, she executed a will in favour of the plaintiff, who is the niece of Lala Baijnath Pd. The properties bequeathed under the will included the house in suit. On an application by the plaintiff, probate was also issued in favour of the plaintiff and after that the plaintiff came in possession of the properties covered by the will including the suit house and got her name mutated. Further according to the plaintiff, defendant no. 1 who was the Benamidar of Lala Baijnath Pd. executed a deed of mortgage by a conditional sale on 14th November, 1959 in favour of defendant no. 2 and again in the year 1960 defendant no. 1 filed Title Suit No. 10!of 1960 against defendant no. 3 for his eviction. In that suit, defendant no. 1 described himself as the owner of the house. Having come to know of this suit, an application under order 1, rule 10 of the Code of Civil Procedure was filed by the plaintiff with a prayer to add her as a defendant to the suit, but that petition was rejected and as such : the plaintiff says she was compelled to file the present suit.

(3.) Defendant no. 1 appeared and contested the suit. His case inter alia was that he purchased the suit house from Ganga Kuer by a sale deed dated 3.12.1941 in the Benami name of Laxmi Narain Nagbansi. It was further said that Lala Baijnath Pd. had absolutely no concern with this purchase. According to him, Lala Baijnath Pd. was declared insolvent by order dated 3.7.1939 and was discharged from insolvency on 4th May, 1950. He, therefore, according to this defendant, could not acquire any property during the period he was insolvent. With regard to the mortgage by conditional sale dated 14th November, 1959. It was said that the same was executed as he required some money. The will dated 4th June, 1958 in favour of the plaintiff by the widow of Lala Baijnath Pd. was described as forged and fabricated.