TEJ SINGH Vs. CHAUDHARI HANNU PRASAD

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decree and judgment of the learned Civil Judge of Mainpuri. The plaintiffs brought this suit for the recovery of the properties described at the foot of the plaint and mesne profits. The plaintiffs claimed to be the reversioners of Drig Singh who died in 1885 leaving two widows, Mt. Indar Kuar and Mt. Rukman Kuar. The widows took possession of the estate of the deceased as limited owners. Mt. Indar Kuar died in 1926 while Mt. Rukman Kuar died on 25 May 1931. On 2 December, 1890 the widows executed a mortgage by conditional sale for Rupees 5290 in favour of Hannu Prasad, defendant 1, and Kalyan Singh, father of defendants 2 to 4. By this deed besides the properties in suit 20 biswa share of village Kailashpur was mortgaged. The mortgagees brought a suit for foreclosure (No. 6 of 1903) on 23 January 1903. In this suit village Kailashpur, for the reasons to be stated later, was not included. A preliminary decree was passed on 24 February 1903 which was made final on 22 September, 1903. The total amount decreed was Rs. 55,427-14-0. The interest was calculated on Rs. 3040 only because a part of the consideration left with the mortgagee to be paid to Dube Mathura Prasad on account of his mortgage of 1884 with respect to mauza Kailashpur was never paid by Hannu Prasad and Kalyan Singh. The defendants decree-holders obtained possession of the properties in suit on 26 October 1903.

(2.) The case of the plaintiffs is that Drig Singh had property of considerable value which yielded a large income; that the widows were under the influence of Hannu Prasad by reason of relationship; that Hannu Prasad took advantage of the helplessness of the widows and acted as their sarbarahkar; that the deed of conditional sale of 1890 was executed without consideration and lawful necessity; that the ladies were inexperienced, illiterate and pardanashin and therefore did not appreciate the consequences of their act; that the money said to have been paid by the mortgagees to various creditors was in fact paid from the income of the estate of the widows; that the decree obtained on foot of the mortgage did not bind the reversioners and that the plaintiffs were entitled to the possession of the property and mesne profits. The suit was contested inter alia on the grounds that the widows were experienced persons and fully understood the nature of the transaction; that the money borrowed under the mortgage deed was utilized for the payment of the debts payable by Drig Singh; that the deed of conditional sale was executed for full consideration and legal necessity and as such is binding upon the reversioners; that the plaintiffs are not the reversioners of Drig Singh and that the suit is barred by res judicata. The learned Civil Judge held that the plaintiffs were the nearest reversioners and that the reversioners were bound by the transaction which was entered into for legal necessity. The suit was accordingly dismissed.

(3.) I do not consider it necessary to discuss in detail the evidence adduced by the parties on the issue of relationship. The learned Civil Judge has given very good reasons for deciding that issue in favour of the plaintiffs. The full pedigree is printed at p. 7 of our paper book and it has been duly proved by oral and documentary evidence. It appears that one Bacha Ram had two sons Kumbhaki and Asa Ram. Kumbhaki had four sons, Zalim Singh, Majlis Singh, Bakht Singh and Ram Baksh. The plaintiffs are said to be the descendants of Zalim Singh. According to the defendants Asa Ram had no connexion with Bacha Ram, but he was son of Jaswant Singh. According to the defendants Asa Ram was not related to Zalim Singh as alleged by the plaintiffs. It appears that the pedigree given by the plaintiffs was set up in a suit No. 56 of 1888 which was instituted by Nawal Singh and Girand Singh, sons of Zalim Singh, against the descendants of Ram Baksh and the widows of Drig Singh. The suit was instituted to recover possession of 5 biswas of mauza Dubhai which was sold by one of the grandsons of Ram Baksh to the widows of Drig Singh. In that suit the pedigree set up by the plaintiffs was disputed. The suit was ultimately dismissed. The Court recorded the following finding on the question of pedigree: The defendants at first disputed the relationship alleged in the plaint, but it was ultimately admitted and the allegations of the plaintiffs as to relationship were correct.