DAULAT RAM Vs. PARMANAND

JUDGEMENT

(1.) The plaintiffs, respondents, who are the sons of one Nathu Rani, brought this suit for proprietary possession of 71/2 shares out of 10 biswas in mauza Nagla Sada under the following circumstances: On the 22nd of March, 1881, Nathu Ram mortgaged with possession 7J shares to the predecessors in title of Parmanand, the defendant appellant, to recover a sum of Rs. 4,600 and interest thereon, and on the 9 of May, 1881, the same parties granted a lease of the same property to Nathu Ram. Nathu Ram, as security for the rent payable under the lease, mortgaged the property to the lessor. The predecessors in title of the defendant appellant died; rent fell into arrears under the lease, and the defendant appellant instituted a suit against Nathu Ram to recover the amount due to him for arrears of rent by sale of the equity of redemption of the property. On the 27 of November, 1889, a decree for sale was passed, and on the 31 of March, 1890, an appeal against the decree for sale was rejected. The property was accordingly sold by virtue of the decree for sale, and was purchased by Parmanand on the 20 of April, 1891. The plaintiffs, who are the sons of Nathu Ram, thereupon brought the present suit. Their case is, that the sale made under the decree of the 27 of November, 1889, was illegal and void, and they claim proprietary possession of the property in dispute. They did not offer to redeem the mortgages of the 22nd of March, 1881 and the 9 of May, 1881.

(2.) The main defence of the defendant was that the plaintiff was not competent to sue for possession of the property, and that of the property only 11/2 shares were ancestral property, and that the remaining six shares were the self-acquired property of Nathu Ram. The Subordinate Judge held in favour of the plaintiffs contention, that the sale was invalid for two reasons-first, that it was a sale of the equity of redemption and not of the mortgaged property; and secondly, that it was contrary to the provisions of Section 99 of the Transfer of Property Act, and so was invalid. He held that the sale to the defendant passed nothing to him, and that the plaintiffs could sue for possession of their shares. In the course of his judgment the learned Subordinate Judge says: "I admit that the plaintiffs cannot sue for actual possession so long as the usufructuary possession subsists. The defendant as usufructuary mortgagee is entitled to continue in possession as such mortgagee until that mortgage is redeemed. The plaintiffs cannot, therefore, obtain a decree for actual possession; but there is no reason why they should not obtain a decree for proprietary possession subject to the defendant's mortgage." He held in accordance with the contention of the defendant that of the 71/2 shares, only 11/2 shares were ancestral property of the family, and such being the case, he gave the plaintiffs a decree for possession to the extent of three-fourths of 11/2 shares.

(3.) From this decree there has been an appeal, and also a cross-appeal No. 8 of 1901. In the cross-appeal the plaintiffs claim, instead of the three-fourths of 1J shares, the entire 71/2 shares. The grounds of appeal in the present case are, first, that the sale was not void under Section 99 of the Transfer of Property Act; secondly, that the sale was binding on the parties to the decree and passed a good title to the purchaser; thirdly, that the sale was a sale of property, and even if it were a sale of the equity of redemption only, it was not void in law; and fourthly, that there was no proof that the appellant had notice of the existence of any interest of the plaintiff in the property, and that the sale in execution of the decree was not in contravention of Section 85 of the Transfer of Property Act.