MUDIT NARAYAN SINGH Vs. RANGLAL SINGH

JUDGEMENT

(1.) The plaintiffs are some of the members of a joint Hindu family governed by the Benares School of the Mitakshara system of Hindu Law, the defendants Nos 1 and 2 are the holders in zaripeshgi lease of two annas share of Peota out of an eight annas share which at one time belonged to the joint family, and the other defendants are the remaining members of the joint family. The suit was instituted for the purpose of recovering possession of this two annas share of Peota, which the plaintiffs alleged had been improperly and without right alienated from the family by Bhairo Pershad, a member since dead. The suit was dismissed by the Courts below, and the plaintiffs other than, the plaintiff No. 1, who died during the pendency of the appeal in the Court of the District Judge, are the appellants in this Court.

(2.) The following are the findings of fact arrived at concurrently by the Courts below. Plaintiff No. 1, Mudit Narayan Singh, was in or about the year 1858 the managing member of the Singh family and on the 29 Aghran 1265 (1858) he borrowed money from one Nanhu Singh under a zaripeshgi lease, hypothecating the disputed two annas share of Peota. Later on Mudit Narayan and Mod Narayan (plaintiff No. 2) jointly mortgaged the remaining six annas share of Peota to one Kishen Das Purohit, who got on the 13 December 1879 a decree for sale of this share in a suit against the mortgagors, Mudit Narayan and Mod Narayan only. When, however, this share along with another mortgaged property was advertised for sale at the instance of Kishen Das, a claim was put in by the other members of the Singh family. It was allowed on the 16 June 1880 with this modification, that the shares of the judgment-debtors on the record ascertained on the footing of a partition taking place on that date were directed to be sold and the rest of the family share was released. But Kishen Das was not satisfied with this order, and he brought a suit for a declaration that the entire hypothecated share, viz., six annas, was liable to be sold under his decree. On the 14 July 1882 a consent decree was passed in favour of Kishen Das, and the six annas share of Peota was ultimately sold and it passed out of the family. In the meantime, the sons and wives of Mudit Narayan and Mod Narayan brought a suit to set aside the ijara in favour of Nanhu Singh, which resulted in its dismissal with costs. There Were other debts of the family to pay, and on the 19 January 1884 Bhairo Pershad and Rukmaj Pershad, two of the sons of Mudit Narayan, who were then adults and were put forward as managing members of the family superseding their father and uncle (Mudit Narayan and Mod Narayan), executed in favour of defendant, No. 1 a zaripeshgi deed of the two annas share of Pecta already dealt with in 1858. With the money thus obtained Nanhu Singh was paid off and other family debts were discharged. The family, including Mudit Narayan and Mod Narayan, was benefited by the transaction. There was a subsequent zaripeshgi lease executed by defendants Nos. 4 to 8 in favour of defendants Nos. 1 and 2 on the 20 July 1892 for a share of 15 dams 7 cowries out of this, two annas share. It was followed by a sale on the 12 October 1897 by defendants Nos. 4 to 8 of one-anna share out of the two annas to defendant No. 1. The family of the Singhs, however, including Mudit Narayan and Mod Narayan, continued joint in food, worship and estate, so far as it was practicable under the circumstances.

(3.) The Courts below have held that the effect of the order passed on the 16 June 1880 in the suit of Kishen Das was to cause a separation of the family. But the Lower Appellate Court has added a limit to the separation, and has held that the effect of the definition of the shares of Mudit Narayan and Mod Narayan was to separate them from the joint-family property, and that the extinction of their interest by the sale was followed by the younger member of the family remaining joint under the management of Bhairo Pershad. In this view the Courts below have held that the alienation by Bhairo Pershad by the first zaripeshgi lease effected for legal necessity was valid and binding on all the members of the family, except Mudit Narayan and Mod Narayan, who had lost all interest in Peota, and had no existing right to assert in the present suit.