TRIPTI PROKAS NANDY Vs. BISESWAR LAL MARWARI

JUDGEMENT

(1.) These two appeals have been preferred by certain judgment-debtors from two orders passed in an execution case by which their objections under Section 47, Civil P.C., were disallowed. The facts necessary to be stated for the purposes of these appeals are the following: Under a document dated 1871 an allowance or tankha was created by Maharaja Aptab Chand Bahadur of Burdwan in favour of his natural father Lala Bans Gopal Nandy, the said allowance being of an amount of Rs. 1,000 per month pay. able to the said Bans Gopal Nandy and his male descendants in perpetuity. Certain immovable properties were charged for the payment of the said allowance. In 1926 one-sixth of the said amount, namely Its. 166-10- 8 per month, was the amount of allowance payable to Lala Gati Prokash Nandy. He mortgaged the right to the said allowance of Rs. 166-10-8 per month, by a document dated 1926. On the basis of this mortgage the mortgagee) instituted a suit in 1928 alleging that the mortgage had been effected to meet certain legal necessities and to discharge certain antecedent debts.

(2.) The suit was instituted against the mortgagor Lala Gati Prokas Nandy as defendant 1, and the Maharaja of Burdwan was joined as defendant 2 in the suit. The latter pleaded that the suit. was not maintainable inter alia on the ground that the sons of the mortgagor who were interested in the allowance and in the equity of redemption were not made parties the said allowance being heritable and descendible in perpetuity. A petition was presented on behalf of the plain-, tiff mortgagee in which it was stated that inasmuch as it appeared that the tankha was granted for the maintenance of Lala Bans Gopal and also of his descendants, defendant 1 that is to say the mortgagor,; was not the only malik of the said tankha, and that the sons of the said defendant 1 were also malika thereof. It was prayed that the sons might be joined as defendants in the suit in order to meet the objections which defendant 2 had taken in his written statements. It was further prayed that the petition should be recorded as forming a part of the plaint. Upon this petition an order was made adding the sons of defendant 1 as defendants 3 to 5 in the suit. From the judgment of the Subordinate Judge in that suit it appears that besides defendant 1 who filed a written statement pleading certain payments and stating that the suit was premature, defendant 3 filed a written statement objecting to the sale of the allowance. Defendant 4 did not appear. Defendant 5, who was said to be a minor, was represented in the suit by a. guardian appointed by the Court.

(3.) The guardian filed a report saying that he would not contest the suit. At the hearing of the suit however none of these defendants appeared. The Subordinate Judge made a decree to the terms of which reference will presently be made, in favour of the plaintiff mortgagee. As regards defendant 2, the Maharaja, the Subordinate Judge held that ho, the Maharaja, was not a necessary party, claiming, as he did, a title paramount and that the suit must be dismissed against him. The preliminary decree that was passed in the suit was one by which defendants 1 and 3 to 5 were ordered to pay the amount due on the mortgage by a certain date, and it was further ordered that if by that date the amount was not put in, there would be a final decree for sale as had been asked for in the suit on behalf of the plaintiff. The payment not having been made, a final decree was eventually made in respect of the mortgaged property, namely, the one-sixth share out of Rs. 1,000 per month, the total amount of the tankha.