SURAJ MAL Vs. NATHWA; AMIN KUNWAR

JUDGEMENT

(1.) The facts of this case are somewhat unusual and our decision is based on the facts as found by the lower Appellate Court.

(2.) It appears that one Nathwa, a separated Hindu, possessing ample means, died in November, 1919.

(3.) The suit was brought by four persons, who claimed to be the next reversioners of Nathwa, and it was filed on the 6 of January 1920. The plaint, after reciting that Nathwa died childless two months before, stated that he left surviving him two widows, Musammat Amin Kunwar and Musammat Hardei, who were entitled to a life-estate in the property and that the plain tiffs were the next reversioners. The plaint goes on to say that on the 1 of March 1916, Musammat Amin Kunwar persuaded Nathwa to execute a fictitious deed of mortgage in favour of Lakhi and Suraj Mal, her two nephews, defendants Nos. 1 and 2; that this bond is calculated to prejudice the rights of the plaintiffs if it is allowed to subsist. Musammat Amin Kunwar was in collusion with defendants Nos. 1 and 2, and Musammat Hardei refused to join as a plaintiff and so was made a defendant. The prayer was "that it may be declared that the bond dated the 1 of March, 1916, executed in favour of Lakhi and Suraj Mal, is null and void and ineffectual as against the plaintiffs and the property hypothecated." Musammat Hardei did not appear and has taken no part in the litigation. Lakhi and Suraj Mal. in their written statement contested the suit on the ground (1) that the plaint ffs were not reversioners and (2) that the bond had been lawfully executed for a real debt and that they had already instituted a suit on the 6 of January, 1920 (the very day on which the plaintiffs instituted this suit), to recover the money due to them on the mortgage-bond. They denied that Musammat Hardei was a widow of Nathwa Musammat Amin Kunwar put in a similar defence denying that she had instigated Nathwa to execute the mortgage. She also denied that Musammat Hardei was a widow of Nathwa.