SHANKAR Vs. DAOOJI MISIR

JUDGEMENT

(1.) This is an appeal by two of the plaintiffs in the suit, viz. Shankar and Ramnath, against a decree of the High Court of Judicature at Allahabad dated 14 May 1928, which reversed a decree of the District Judge of Benares dated 10 November 1925. The last mentioned decree had affirmed a decree of the Additional Subordinate Judge of Benares dated 6 August 1925. Paltu, respondent 7 and plaintiff 1 in the suit, is the father of the plaintiffs-appellants. Munnu Lal was the father of Paltu ; Munnu Lal, Paltu and the plaintiffs appellants were members of a joint Hindu family governed by the Mitakshira law, and the house, which was the subject-matter of the suit, was part of the ancestral property of the said joint family. The suit was instituted on 8 November, 1924; at that time Ramnath was a minor, and sued through Shankar as his next friend. The material facts are as follows:

(2.) On 8 May 1915, Munnu Lal executed a deed conveying the said house to his son-in-law, Phalgu, with the ostensible object of paying off debts. At the date of the above mentioned deed both the plaintiffs- appellants were minors. Munnu Lal died in 1919, and after his death Phalgu executed and obtained the registration of a deed of sale of the said house in favour of Mt. Ganga Dei, the wife of Parsotam Misir. The last-mentioned sale deed for which there was consideration was dated 9 October 1919. Parsotam Misir and his wife were the defendants in the suit.

(3.) The first five respondents to this appeal are the heirs and legal representatives of Parsotam, who died after the institution of the suit, and the defendant, Mt. Ganga Dei is respondent 6. The suit was brought to recover possession of the said house, of which the plaintiffs-appellants had been dispossessed in November 1921, together with mesne profits. The Subordinate Judge made a decree in favour of the plaintiffs for possession of the said house on condition that they should pay the sum of Rs. 1,046 to the defendants within six months of the decree. The Subordinate Judge directed that, on payment of the said amount, the plaintiffs should get their costs of the suit from the defendants. It appears that the defendants had paid off a mortgage on the said house of Rs. 1,000 and Rs. 46 interest thereon, and the learned Judge was of opinion that in equity the plaintiffs ought to pay the said sums to the defendants before they could be allowed to obtain unencumbered possession of the said house.