DWARKA PRASAD Vs. MAHADEO PRASAD

JUDGEMENT

(1.) The facts of this case, as found by the Court below, have not been controverted before us, and therefore we take them to be correct. It appears that so far back as on 25 October 1883 the Raja of Basti made a simple mortgage of the property in suit for a sum of Rs. 1,999 in favour of four persons Binda, Bisheshar, Ram Tahal and Ganga. The pedigree given below shows how these mortgagees were related to one another.

(2.) In course of time several of the members of the family died out, and there was a partition, with the result that at the date of the suit, that was instituted in 1910, for recovery of the money due on the mortgage, the family was no longer joint, and the mortgagee rights were vested in equal shares in Ram Tahal, Jagmohan, Ram Lal and Mt. Maharani, wife of Binda Kalwar. Mt. Maharani is now dead. The suit just mentioned, being suit No. 585 of 1910, was instituted by Ram Tahal in the Court of the Subordinate Judge of Gorakhpur, and the co-mortgagees of Ram Tahal, namely Jagmohan, Ram Lal and Maharani were impleaded as pro forma defendants, on the allegation that they did not join in the suit: see pp. 68 and 69 of the printed record. The pro forma defendants did not dispute Ram Tahal's claim to realize the money for himself and his co-mortgagees. None of them applied to be made plaintiffs. A preliminary decree was accordingly made in favour of Ram Tahal. Ram Tahal applied for the decree being made final. Mt. Maharani made an application that she might be made a co-plaintiff. This application was dismissed by the learned Subordinate Judge on the ground that it was too late. The final decree was prepared and the property was brought to sale. Sam Tahal himself purchased the property on 21 July 1913. There ended the first stage of the history of the case. By the suit, out of which this appeal has arisen, Jagmohan Kalwar and Bhagwan Das, son of Ram Lal, claimed two-thirds of the property purchased by Ram Tahal in execution of the decree on the ground that they owned two-thirds share, because they had two-thirds share in the mortgage money. Jagmohan died pending the suit, and his legal representatives have been brought on the record.

(3.) Various defences were set up. One of these that found favour with the learned Subordinate Judge was that the plaintiffs could get only a share in the money that was decreed in favour of Ram Tahal, but that they had no right to the property. The suit was accordingly dismissed, and the plaintiffs have appealed.