PRAMATHA NATH BOSE Vs. BHUBAN MOHAN BOSE

JUDGEMENT

(1.) The subject-matter of the litigation which has led up to these appeals is a valuable estate which formed at one time the property of Gadadhar Ghose, the maternal grandfather of the plaintiffs. The relationship between the parties is set out in the following genealogical table:--

(2.) Gidadhar Ghose died in the early part of 1862, leaving a widow Drabamayi and a daughter Radreswari. Upon his death, his estate vested in his widow, who died on the 2 October 1878. The estate thereupon passed into the Lands of his daughter Rudreswari, who took as the immediate reversioner and subsequently died on the 7 December 1905. Rudreswari had been married to one Mahesahandra Bose, a member of the legal profession, who survived his wife for a few months and died on the 14 April 1906. After the death of Rudreswari, the estate vested in the plaintiffs as the ultimate reversionary heirs to the estate of their maternal grandfather. On the 5 December 1911 just before the expiry of six years from the death of their mother, the plaintiffs commenced the present litigation for recovery of possession of the disputed property, on the allegation that the second defendant was wrongfully in occupation, in assertion of a title which could not prevail against theirs as reversionary heirs.

(3.) It appears that on the 15 September 1873, Drabamayi, the widow of the original proprietor, mortgaged the property to the father of the first defendant to secure a loan of Rs. 1,880. After the death of the mortgagor, the mortgagee, on the 1 October 1879, brought a suit to enforce the security against her daughter Rudreswari, who keenly contested the claim. But on the 12 August 1880 the Suit was decreed; the terms of this decree and the effect thereof will require examination later. The decree was executed in due course, and the mortgaged property brought to sale, when it passed into the hands of the father of the second defendant, who was in no way connected with the parties and was a complete stranger to the proceedings. The plaintiffs assert that the sale took place tinder circumstances which render it inoperative against them as the ultimate reversioners to the estate of their maternal grandfather. They accordingly seek to recover possession of the property, or, in the alternative, compensation for loss thereof. The claim has been resisted by both the defendants who are the representatives of the mortgagee decree-holder and the execution, purchaser respectively. The Subordinate Judge has dismissed the suit as against the second defendant, the representative of the execution purchaser; but he has given the plaintiffs a decree for Rs. 1,359 odd with proportionate costs against the first defendant. Two appeals have been preferred against this decree (one No. 84 of 1919 by the plaintiffs, the other No. 94 of 1919) by the first defendant. In the former appeal, the plaintiffs seek to recover possession of the property, in the latter appeal, the first defendant impugns the propriety of the decree for money made against him. Before we discuss the questions raised, it is necessary to examine the nature and scope of the proceedings in the mortgage suit.