MUSAMMAT JHUNA Vs. MUNSHI TARA CHAND

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiffs seek to be placed in possession of certain occupancy holdings as mortgagees in possession. The plaintiffs claim that the mortgagee rights under the mortgage of 5 February 1895, made in favour of one Son Kunwar by one Baber Ali Khan, formed part of the joint property of a joint family, which consisted of the predecessor-in-title of the plaintiffs and one Fakir Chand, the husband of Musammat Son Kunwar, that partition proceedings were commenced in the year 1901 which resulted eventually in a compromise followed by a decree dated the 3 July 1907. The defendants case was that the debt created by the mortgage of the 5 of February 1895 and all mortgagee rights were the property of Musammat Son Kunwar and that Musammat Son Kunwar and one Lalta Prashad, on the 27 of June 1901, sold the mortgagee rights to them and that they were bona fide purchasers of such rights. The plaintiffs reply to this contention was that the sale to the defendants by Musammat Son Kunwar and Lalta Prasad was after the commencement and pending the contentious partition suit and that accordingly their rights under the decree could not be affected by the defendants purchase. It may be right to mention here that under the compromise decree the particular property, the subject-matter of the suit, that is the mortgagee rights under the mortgage of the 5 of February 1895, fell to the lot of the plaintiffs. The defendants next pleaded that the compromise was collusive and that they were no parties to it and were not bound ?by it. The Court of first instance found on almost all the issues in favour of the plaintiffs. The lower appellate Court decided the case entirely on the construction of Section 52 of the Transfer of Property Act. It held that the transfer by Musammat Son Kunwar and Lalta Prasad was void in so far as the plaintiffs were concerned. It did not decide other questions involved in the case nor the question of fraud. The grounds taken in the present appeal are: (1) that the name of Musammat Son Kunwar having been removed from the array of defendants in the partition suit aid the appellant not having been impleaded in that suit brought by the plaintiffs-respondents, the decree passed in the suit did not bind the appellants; (2) that the decree passed in the suit not being the result of a judicial adjudication on the merits but of the compromise entered into between the parties, the rule of lis pendens did not apply to the case. The third ground taken in the memorandum of appeal is admittedly incorrect and accordingly it does not require any remarks. As to the first ground, we find, that the name of Musammnt Son Kunwar was struck out after her death. She was the widow of Fakir Chand and it is almost certain that the heirs of Fakir Chand, that is to say, the reversioners, who would succeed to the property after the death of Son Kunwar, were already on the record. As to the second ground, we are quite satisfied that an honest compromise incorporated into a decree under the provisions of the Code of Civil Procedure is just as effectual for purposes of Section 52 of the Transfer of Property Act as a decree passed by the Court. There is no doubt that the defendants in effect pleaded fraud and had the ground been taken in the memorandum of appeal that the issue of fraud had not been decided, we should have been obliged to remand the case. At the suggestion of the Court, the plaintiffs have waived their rights to mesne profits. THIS we think meets the justice of the present case. We accordingly modify the decree of the Court below by directing that the plaintiffs shall not be entitled to any mesne profits. In all other respects, we confirm the decree of the Court b elow. The respondents will have their costs including in this Court fees on the higher scale.