GANGA PRASAD Vs. MTHARDEI

JUDGEMENT

(1.) The facts of the case briefly are these: In 1900 there was an auction sale of a certain property and it was purchased in the name of a lady, Mt. Gobindi. The property was subject to a usufructuary mortgage for the sum of Rs. 450, so that what was sold was the mortgagor's right in the property. The purchaser did not get possession because the possession was with the mortgagee, Mir Imdad All. The respondents father Banwari Lal claims that the real purchaser was Hira Lal, his son. Gobindi was a sister to Hira Lai's wife and was living with Hira Lai. Gobindi's name continued in the village papers till 1911, about which time, it appears, Gobindi died. Hira Lai's son Suraj Prasad instituted a suit for possession on redemption of the property-and was successful in 1916, when hejpaid the sum of Rs. 450 and redeemed the property and took possession of it.

(2.) After the death of Suraj Prasad his son Hanuman Prasad succeeded to his property. He however died shortly after and Mt. Jaikali, his mother, succeeded to the property. On the death of Mt. Jaikali, Banwari Lal, as the next heir of Hanuman Prasad, claimed the property. There was a tussle in the Mutation Department and in 1926 the mutation Court decided in favour of the appellant Ganga Prasad, wbo claims to be related to Mt. Gobindi through Gobindi's sister. Having begri unsuccessful in the mutation department Banwari Lal instituted the suit out of which this appeal has arisen for a declaration of title to the property and, in the alternative, for recovery of possession. As already stated, his case was that his son Hira Lal was the real purchaser of the property.

(3.) Ganga Prasad defended the suit. The chief ground was that Section 66, Civil P.C. prohibited a suit for a declaration that the certified purchaser was not the real purchaser. Banwari Lai s-suit was accordingly dismissed. But in view of the fact that Suraj Prasad paid the sum of Rs. 450 and Ganga Prasad was going to get the benefit of that money, the lower appellate Court granted a simple money decree against Ganga Prasad and in favour, of Banwari Lai. Banwari Lal died pending the appeal in the Court below and his daughters were substituted in his I place. The daughters of Banwari Lal are the respondents, before us.