URBAN CO OPERATIVE BANK LTD Vs. GOKAL DEVI

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendant the Urban Co-operative Bank: Ajmer-Merwara Limited, Ajmer, through its Secretary, against the judgment and decree of the District Judge, Ajmer, dated the 16th May, 1961, affirming the judgment and decree of the Civil Judge, Ajmer, in a suit for declaration.

(2.) THE material facts leading up to this appeal may shortly be stated as follows. THE defendant appellant is a co-operative Bank registered under the Cooperative Societies Act and has its office at Ajmer. Defendants respondents Nana Kishore and Ramesh Chander who are brothers borrowed a sum of Rs. 7500/- from the said bank on the 14th October, 1947, on the security of two immovable properties with one of which we are concerned in the present case and the particulars of which are mentioned in paragraph one of the plaint. THE plaintiff is Mst. Gokal Devi widow of one Jagdish Prasad. THE defendant appellant having obtained an award against the mortgagors aforesaid which has the force of a decree under the law, sought to execute it by sale of the suit property. THE case of the plaintiff is that this property, although it was purchased by her husband Jagdish Prasad in his name and that of Nandkishore defendant jointly belonged exclusively to her husband and that the! name of Nandkishore in the sale-deed dated the 5th September, 1945 Ex. A-2, obtained in that connection from one Lala who was admittedly the owner thereof at the relevant time, was merely Benami and that her husband had been in exclusive possession of the said house ever since the purchase and that after his death, in 1951, she was the sole owner in possession of it. In support of her case, the plaintiff particularly relied on the fact that the defendant Nandkishore had not contributed any money towards the purchase of the suit property and produced a document Ex. 3 dated the 22nd September, 1945 which was alleged to have been executed by the said Nandkishore in favour of the plaintiff's husband in which he had stated that in the sale-deed dated the 5th September, 1945, as respects the property purchased from Lala, Jagdish Prasad had of his own accord obtained the sale-deed in his (Nandkishore's) name, that he had paid no consideration whatsoever for the sale in question and that he had no desire to have anything to do with that property and that Jagdish Prasad alone was the owner of it and the same was already in his exclusive possession. As the defendant appellant was executing its decree by having the suit property auctioned, the plaintiff brought the present suit for a declaration that the defendants had no right, title or interest in the property in question and that the plaintiff was the sole owner of it, and, therefore, it was not liable to be sold in execution of the defendant appellant's decree against the other defendants. This suit was contested by the defendant appellant only. Its defence, put briefly, was that the property in suit belonged to defendants Nos. 2 and 3 Nandkishore and Ramesh Chander by virtue of a sale-deed in their favour (which was never produced and which was not a fact) and that the plaintiff had no right whatsoever in the property, and, consequently, the said defendants were perfectly within their rights in having mortgaged the same with this defendant and it was entitled to bring it to sale in execution of its decree against the, other defendants. As regards the writing Ex. 3 which was alleged to have been executed by Nandkishore in favour of Jagdish Prasad it was contended that it was not admissible in evidence as it was unregistered. This document was also not admitted by the defendant. Certain other pleas were also raised by this defendant but it is unnecessary to set them out in any detail because the issues relating to them were not pressed in the trial court nor in the court below.

(3.) IN the result, this appeal fails and is hereby dismissed with costs. Leave to appeal is refused. .