PITAMBAR LAL Vs. MURLIDHAR; MANNI LAL

JUDGEMENT

(1.) Ghazi Din and his first cousin Pitambar formed a joint Hindu family of which Ghazi Din was the karta. Pitambar was a minor. On the 27 of April, 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 guardianship of Ghazi Din on foot of their mortgage. Ghazi Din confessed judgment and a preliminary decree was passed on the 30 of 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 against the plaintiff and that he was not bound by it and that in execution of the said decree the remaining half of the joint family property was not saleable. The property was sold and purchased by Murlidhar, and the sale was confirmed on the 9 of March, 1918. On the 22nd of March. 1918, the plaint was amend, Murlidhar 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, 1918, and was purchased by defendant No. 4, that is, Murlidhar, and an additional prayer was added for a declaration that the said sale was void and illegal. It was alleged in the plaint that the mortgagees, in spite of their having knowledge of the fact that the rights of Ghazi Din were adverse to those of the plaintiff, appointed him the guardian of the plaintiff, and in collusion with him obtained a decree; that in fact there was no lawful guardian of the plaintiff; that the whole proceedings wore kept concealed 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. It further found that Ghazi Din was not a proper person to be appointed guardian in the suit, and on this ground 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.