MURLI DHAR Vs. PITAMBAR LAL; MANNI LAL

JUDGEMENT

(1.) Ghazi Din and his first cousin, Pitamber, formed a joint Hindu family of which Ghazi Din was the Harta. Pitambar was a minor. On the 27 of Apr 1 1913 Ghazi Din made a mortgage of the joint family property in favour of Munni lal and Kashi Prasad. The mortgagees sued Ghazi Din and Pitambar, under the guardian ship of Ghazi Din, on foot of their mortgage. Ghazi Din confessed judgment and a preliminary decree was passed on the 3O March, 1916. This was duly made final and the property was attached and put up for sale, and the 6 of February 1918 was the date fixed for the sale. On that date Pitambar, still a minor, filed the suit out of which this appeal arises, against Kashi Prasad and the representatives of Munni lal, the mortgagees, and Ghazi Din for a declaration that the decree in the former suit was void and illegal as sgainst the plaintiff and that he is not bound by it and that in execution of the acid States the remaining half of the joint family property was not saleable. The property was sold and purchased by Murli Dbar, and the sale was confirmed on the 9 of March 1918. On the 22nd of March 1918 the plaint was amended, Murli Dbar was made a defendant, and an additional Clause was inserted in the plaint to the effect that in execution of the decree in the said suit the house was sold by auction on the 6 of February 918 and was purebased by defendant No, 4, that is, Murli Dhar, and an additional prayer was added for a declaration that the said salts was void and illegal. It was alleged in the plaint that the mortgagees, in spise of their having knowledge of the fast that the rights of Ghazi Din were adverse to those of the plaintiff, appointed him the guardian of the plaintiff, and collasion with him obtained a decree ; that in fact there was no lawful guardian of the plaintiff; that the whole proceedings were kept coneealed from the mother of the plaintiff who only got to know of the suit when execution was taken out ; that Ghazi Din had no power to execute the mortgage deed and that it was not for the benefit of the plaintiff.

(2.) The First Court found that the mortgage was not made for family necessity or for the benefit of the family. It also found, however, that there was no evidence to show collusion between Ghazi Din and the mortgagees, and that the plaintiff was properly represented in the former suit. It, nevertheless, dismissed the suit. On appeal the Court below upheld the finding that the mortgage was not executed for legal necessity or the benefit of the, minor and it further found that Ghazi Din wan not a proper person to be appointed guardian in the suit, and on this ground it allowed the appeal and decreed the suit .

(3.) This appeal is by the auction-purchaser; The connected Appeal .No. 736 of 1920 is by the mortgagees.