HARE KRISHNA DHUPI Vs. UPENDRA KUMAR BHOUMIK

JUDGEMENT

(1.) The whole controversy in this appeal centres round the point as to whether the predecessor of plaintiffs 1 to 4 did acquire any title to an eight annas share of the disputed holding by virtue of his purchase at the mortgage sale which could enure beyond the lifetime of Sarada, Sarada admittedly had eight annas share in the disputed holding which she inherited from her father, Lochan Dhupi, the other eight annas share devolving on her sister Iswari. Iswari's two sons, Kali and Chandra, succeeded to the interest of their mother after the latter's death. It is not disputed that four annas share of Kali has passed by transfer to plaintiff 5 and Chandra has made a gift of his four annas share to defendant 6. The dispute is only with regard to eight annas share of Sarada. Now, Sarada's husband, Ram Manikya, had acquired a superior interest in respect of this holding sometime before his death and after his death this interest devolved upon his three sons, defendants 1 and 2 and the father of defendants 3 to 5. In 1913, there was a mortgage bond executed by Sarada and her three sons in favour of one Guru Charan to secure an advance of over Rs. 500 which was necessary to repay a debt due by Earn Manikya, the husband of Sarada, who was dead at this time. Sarada purported to mortgage her raiyati right and the three sons hypothecated the tenure- holders interest or what has been described as Dar Mirash right. The mortgagee instituted a suit upon this mortgage bond sometime in the year 1918 and having secured a decree, put up the mortgaged properties to sale which were purchased by the predecessor of plaintiffs 1 to 4 on 15 March 1923. There were certain proceedings for setting aside the sale and eventually on 13 June 1926 the purchaser took delivery of possession through Court. The contention that is raised by defendants 1 to 5 is that Sarada having only a life interest in the raiyati holding, and there being no legal necessity justifying the alienation, the purchaser at the mortgage sale could at the most acquire her life interest, and this interest could not survive her death. The trial Court definitely came to the conclusion that there was no legal necessity, but it relied upon certain "acts of omission and commission" on the part of the reversioners to hold that there was an election on their part not to dispute or repudiate this transaction. The lower appellate Court sums up his reasoning by saying that the transaction was binding on the reversioners on two grounds: first, it raised a presumption of legal necessity, and, secondly, the defendants were precluded by their election not to impeach the sale. Now, the consent of the presumptive reversioners does not by itself validate an act of alienation by the widow. It simply gives rise to a presumption as to the existence of legal necessity a presumption which the actual reversioner is always entitled to rebut. But if the actual reversioner is the same person as the one who has given consent as presumptive reversioner, a different consideration arises and he is precluded from disputing the validity of the alienation. This is on the ground that a presumptive reversioner is competent to elect to treat the alienation as operative against his spes successionis even during the life-time of the widow, and, if he himself is the reversioner at the time of her death, the consent already expressed by him is binding on him.

(2.) Mr. Mitra who appears for the appellants has contended before me that the sons of Sarada could not be said to have given their consent to the act of transfer by the mother simply by joining as parties to the mortgage deed. It is said that the sons had independent interest of their own namely the tenure-holders interest, and that, in reality, there were two transactions embodied in the same mortgage deed. So far as the act of mortgaging the raiyati right is concerned, the sons obviously were not parties to the same. At first sight, it seemed to me that the contention was plausible, but on closer examination, it is found to be without substance. Of course, I have not got before me the mortgage deed, and cannot say exactly what its contents were, but it appears from the facts admitted and found by both the Courts below that the money, which was borrowed, was necessary to pay off a debt due by the father and the liability to repay it was therefore on the sons and not on the mother. It was a debt due by the sons exclusively and the mother was prevailed upon to join in the deed and hypothecate her own raiyati interest in the property, possibly because the purchaser did not consider the superior interest to be sufficient security for the loan that he was advancing. From this fact, I think it would be quite competent to a Court to presume that the sons were actually consenting parties to the act of mortgage by the mother, and as it was for the benefit of the sons, that the mother joined in the mortgage, the consent of the latter can certainly be inferred.

(3.) There was one decree passed in the mortgage suit making the mother and the sons jointly responsible for the whole debt and in execution of the same, both the mirash as well as the raiyati interest were put up to sale and purchased by the purchaser. There was a sale set aside proceeding started by the sons when Sarada was alive and eventually there was a compromise come to between the sons on the one hand and the auction-purchaser on the other, under which the sons agreed to pay the decretal amount within a certain time failing which the sale was to stand confirmed. The purchaser took delivery of possession through Court in 1926, after Sarada was dead, and then also the sons did not raise any objection. All these facts have been, in my opinion, rightly construed by both the Courts below as pointing to the conclusion that, the sons consented to the mortgaging of the properties by the mother. In these circumstances, I am of opinion that the view taken by the Courts below is right and this appeal must fail. There was another point raised by Mr. Mitra that in so far as Iswari's share was concerned, the defendants had acquired a title by adverse possession. I do not think that this contention can be seriously put forward in view of the findings arrived at by both the Courts below. Not only the purchaser took possession through Court in 1926, but they were actually in possession through bargadars in the year 1927 and the present suit is certainly instituted within 12 years from that date. The result is that this appeal fails and is dismissed with costs, hearing fee being assessed at one gold mohur.