CHIRANJILAL AGARWALA Vs. CHITTARANJAN MUKHERJEE

JUDGEMENT

(1.) This appeal is brought on behalf of the plaintiff, Ghiranjilal Agarwala, against the order of the Subordinate Judge of Jamshedpur, dated 5-3-1959, holding that the security furnished by the defendant Chittaranjan Mukherjee was) sufficient to satisfy the claim of the plaintiff.

(2.) On behalf of the appellant three points were taken by Mr. P. R. Das. It was submitted, in the first place that the security bond, annexure A at page 38 of the paperbook, furnished by the defendant was not legally valid as it required registration. Learned Counsel referred to the last paragraph of the bond which states that the defendant "hereby undertakes not to part with or otherwise alienate any part of the aforesaid property till ordered by the court". It was contended by learned Counsel that the effect of this clause was that a charge was created upon the property mentioned in the security bond and so the document required registration, and in the absence of registration the document was valueless as security. In support of this proposition learned Counsel referred to Royzuddi Sheik v. Kali Nath Mookerjee, ILR 33 Cal 985 where a similar question was decided and it was held that a document couched in similar terms had the effect of creating a charge. In our opinion, the argument addressed by learned Counsel for the appellant is right and the security bond executed by the defendant in this case will require registration, and in the absence of registration the learned Subordinate Judge ought not to have accepted it as sufficient security. Secondly, it was submitted by learned Counsel for the appellant that the security furnished was in fact not sufficient to cover the amount of the decree which may ultimately be passed in favour of the plaintiff. As regards the amount of Rs. 40,000/- which is said to be payable to Sri Indra Narayan Singh by the State of Bihar as compensation for the vesting of the proprietary interest under the Bihar Land Reforms Act, the contention of learned Counsel is that the compensation was not payable wholly in cash but it was payable in bonds in forty yearly instalments and so; the security offered was not sufficient. As regards the title of Sri Indra Narayan Singh to the minerals of the entire estate of Go-barghusi, the argument of learned Counsel was that the title was not legally beyond doubt and the question of the surety's title would depend upon whether he was actually working the minerals at the time when the estate vested in the State of Bihar. As regards the house located in Mauza Pardih, the contention of learned Counsel was that the value placed by the surety was excessive, and as regards the houses located in Purulia and at Burra Bazar, the argument of learned Counsel was that these houses were beyond the jurisdiction of the Subordinate Judge of Jamshedour. With regard to the 300 bighas of paddy fields said to be owned by the surety, the objection taken was that the land was not alienable under the provisions of the Chota Nagpur Tenancy Act.

(3.) There is also another objection taken by the learned Counsel for the appellant, namely, that the surety is the karta of a joint family and the property belonging to the joint family cannot be alienated by the surety. In support of this proposition learned Counsel referred to Anand Das v. Ram Bhusan Das, AIR 1937 Pat 380. With regard to this point the learned Government Advocate produced a copy of a eompromise decree in Second Appeal No. 379 of 1942, dated 1-8-1945 (Pat) by which the parties agreed that the Saterokhani estate was impartible and the succession to it was governed by the custom of primogeniture. It was submitted by the Government Advocate that the Saterokhani estate is identical to gobar-ghusi estate which is mentioned in the security bond. Even assuming that the argument of the learned Government Advocate is right, we are of opinion that in the present case the properties of-fered in security by Sri Indra Narayan Singh in the security bond are not sufficient to satisfy the claim of the plaintiff in case he should eventually obtain a decree in the money suit. The principle applicable to a case of this description has been clearly enunciated by Asutosh Mookerjee J. in Srinivasa Prasad Singh v. Kesho Prasad Singh, 13 Cal LJ 665 at p. 383 where the learned Judge has observed that "it is a well settled practice of this Court that when security is offered for stay of execution, it is not accepted unless its legal validity is reasonably free from doubt". In the present case we are of opinion that the security offered by the surety Sri Indra Narayan Singh is not reasonably free from doubt. For these reasons we hold that this appeal should be allowed, the order of the learned Subordinate Judge of Uamshedpur dated 5-3-1959, should be set aside and the case should go back to the Subordinate Judge of Jamshedpur for giving an opportunity td the defendant-respondent to offer other security to the satisfaction of the court. Till such security is offered the order of attachment before judgment under Order 38, Rule 5, Code of Civil Procedure, will continue in force. Subject to these observations we allow this appeal and remand the case for being dealt with by the learned Subordinate Judge of Jamshedpur in accordance with law. There will be no order as to costs in this appeal.