JAGARNATH PRASAD Vs. CHUNNI LAL

JUDGEMENT

(1.) This is an appeal by some of the defendants in a suit brought by the plaintiffs for the recovery of Rs. 34,861-10-6 by sale of the properties described at the foot of the plaint. Harbans Singh, a resident of mauza Dola in the District of Meerut, was at one time in possession of considerable immovable properties. Harbans Singh had three sons, Fateh Singh, Udai Prakash and Om Prakash. Gandharap Singh is the son of Om Prakash and is described in the plaint as aged five years. It is admitted that Fateh Singh was a major at all material periods. There is dispute about the exact age of the remaining two sons. According to the plaintiffs Udai Prakash was born in 1896 and Om Prakash some four years later. The defendants contend that Udai Prakash was born in October 1901 while Om Prakash in 1904. On 19 February 1920 Fateh Singh on his own behalf and on behalf of his minor brother Om Prakash, and Udai Prakash executed a hypothecation bond in favour of L. Chunni Lal, plaintiff 1 and L. Ratan Lal, father of Ajit Prasad, plaintiff 2, for Rs. 8500 carrying interest of Re. 1-4.0 per cent, per mensem with six-monthly rests. Some of the properties hypothecated were encumbered under an earlier bond dated 14 May 1918 executed by Fateh Singh and Harbans Singh for Rs. 1500 in favour of one Mahabir Prasad. Mahabir Prasad brought a suit for the enforcement of his mortgage in 1922 (in Suit No. 312 of 1922). The suit was decreed and the mortgaged properties were sold at an auction sale in November 1926. The plaintiffs made an application under Rule 89, Order 21, Civil P.C., on 24th November 1926 to set aside the sale on payment of the decretal amount.

(2.) The plaintiffs alleged that in pursuance of the order of the Court they deposited Rs. 4120-10-6 in full satisfaction of the decree and the sale was set aside by the Court. The plaintiffs now claim Rs. 30,000 under the bond of 1920 and Rs. 4861.10-6 on account of the money paid by them to set aside the sale. This latter sum includes interest at the rate of 6 per cent, per annum. In para. 5 of the plaint it is stated that the debt mentioned in both the bonds was contracted by defendants 1 and 2, who were the managers and of the family, for lawful necessity and for the payment of a previous debt of the joint Hindu family. There is a slight inaccuracy in the statement. The first bond of 1918 was executed by defendant 1 and his father Harbans Singh. Defendant 2 was no party to it. Besides the principal defendant a large number of persons were impleaded as subsequent transferees. The suit was mainly contested by Udai Prakash, Om Prakash, Gandharap Singh and Jagannath Prasad, defendant 17, who is said to have purchased some of the properties in suit. The claim was resisted on a variety of grounds. It was pleaded inter alia that Fateh Singh, Udai Prakash and Om Prakash were not members of a joint Hindu family; that Fateh Singh was a certificated guardian of Om Prakash; that the mortgage in suit was executed without the permission of the District Judge, that there was no legal necessity for the execution of the bonds mentioned above and that in any event the claim for the recovery of Rs. 4861-10-6 alleged to have been paid by the plaintiffs in satisfaction of the decree in favour of Mahabir Prasad is not recoverable. The learned Civil Judge decreed the suit and ordered a preliminary decree to be prepared under Order 34, Rule 4, Civil P.C. This appeal has been preferred by Jagannath Prasad, Om Prakash and Gandharap Singh, minor through his father Om Prakash. Appellant 4, Chandar Mohan Lal, son of Jagannath Prasad, was added to the array of appellants by an order of this Court dated 24 April 1936. It appears that Jagannath Prasad has transferred some of the properties in suit acquired by him to his son.

(3.) It will be convenient to refer to another suit which was brought by the present plaintiffs against the contesting defendants and some other persons for the enforcement of another mortgage as the decision of that suit will have a strong bearing on some of the issues involved in the present suit. On 15 September 1922, Udai Prakash on behalf of himself and his minor brother Om Prakash executed a hypothecation bond in favour of the plaintiffs for Rs. 6000. A suit for the enforcement of that mortgage was instituted on 5 January 1929 (No. 6 of 1929). The present suit was instituted some months later on 25 November 1929. The suit was contested by Udai Prakash, Om Prakash, Gandharap Singh and Jagannath Prasad on the grounds similar to those raised in the present suit. The trial Court decreed that suit but on appeal to this Court the decree of the trial Court was modified on 23 June 1932. The plaintiffs appealed to their Lordships of the Judicial Committee, but the decree of the High Court was affirmed on 26th June 1939. In that suit it was decided that in 1915 the family had become divided in estate, that Udai Prakash was not a minor in September 1922, that Fateh Singh who was appointed a guardian by the District Judge, ceased to be a guardian on the attainment of majority by Udai Prakash and that Fateh Singh was separate from his two brothers Udai Prakash and Om Prakash who were joint inter se.