MAHIM CHANDRA GOPE Vs. SAILENDRA CHANDRA DE

JUDGEMENT

(1.) The plaintiff's case was that their father, by inheritance and by joint purchases with his own brothers; i.e., defendants 2 and 3, had a 5 annas odd share in a certain taluk, that defendants 2 and 3 also, by inheritance and by joint purchases with the plaintiffs father, had a 4 annas odd share therein, and that the plaintiffs father thereafter made several separate purchases with his own funds in respect of a total share of 3 annas odd share of the taluk. Their case further was that although defendants 2 and 3 had thus only a 4 annas odd share as aforesaid, they mortgaged an 8 annas share to the father of defendant 1 and that the father of defendant 1 on the basis of the said mortgage obtained an exparte decree, got it made final, put the decree to execution and purchased the said 8 annas share, and after having obtained delivery of possession got his name registered in the Collectorate in respect of it. The plaintiffs case was that they had been thus dispossessed from a 3 annas odd share in the taluk and they asked for a declaration of their title to that share, alleging that the said share did not pass by the mortgage sale, that they were minors at the date of the execution and sale, that no proper guardian was appointed for them in those proceedings and that the entire proceedings were tainted with collusion and fraud and were accordingly not binding on them. The defence was a denial of the allegations made in the plaint, and an averment that the plaintiffs were bound by the decree on the mortgage and the sale thereunder.

(2.) The facts which require mention are the following: defendants 2 and 3 executed the mortgage in 1902. In 1909 the mortgagee instituted , the suit with defendants 2 and 3 as the principal defendants, and impleading the plaintiffs father as the pro forma defendant. An exparte preliminary decree was passed in 1909, and it was eventually made final in 1911. After that, as has been found by both the Courts below the plaintiffs father died, and after his death, execution was taken in respect of the decree. The plaintiffs were admittedly minors at the time. The sale took place in 1912, and the mortgagee auction-purchaser took delivery of possession in 1913. In 1915 the plaintiffs, represented by their maternal uncle as their guardian, applied to set aside the exparte decree, but failed in the trial Court as well as in appeal. In 1916 the mortgagee obtained a personal decree for the balance against defendants 2 and 3 and as against the assets of the plaintiffs father in the hands of the plaintiffs. Subsequently, the father of defendant 1, and thereafter in 1925, defendant 1 himself got his name registered in respect of the purchased 8 annas share The present suit was commenced on 4 May 1927. The Munsif held that the question of the plaintiffs title is not barred on any principle of res judicata by reason of the decision in the mortgage suit; but that there was no collusion or fraud in connexion with the execution proceedings and the sale, and that the decree and the sale were binding upon the plaintiffs because their father was a party to the mortgage suit just as much as defendants 2 and 3 were. He held accordingly that the plaintiffs right to the taluk had passed to defendant l's father by his purchase. In this view of the matter the Munsif dismissed the suit. It appears to have been conceded before the Subordinate Judge on behalf of the defendants that if the mortgage decree did not bind the plaintiffs, the execution proceedings culminating in the sale of the mortgaged properties and the purchase thereof by the father of defendant 1 would not bind the plaintiffs. On that concession being made the Subordinate Judge did not feel called upon to adjudicate upon the validity of those proceedings. He observed however that, the plaintiffs had impeached the execution proceedings as not binding on them as they were not properly represented therein by their legal guardian. but he found that "there was a good deal of force in their contention." As regards the merits of the decree itself, his finding was that defendants 2 and 3 had, when they had only a 4 annas odd share, misrepresented their share to have been 8 annas, and there was no evidence to show that the plaintiff's father was in any way benefited by the mortgage. He held on the evidence thus: On the other hand, the evidence for the plaintiffs clearly proves that the father of the plaintiffs was in affluent circumstances and had no necessity for raising any money by loan through his brothers defendants 2 and 3.

(3.) He held that the decree in the mortgage suit did not operate as a bar to the trial of the question of the plaintiffs title because the question of title that has been raised in the present suit could not and need not have been raised in the previous suit, having regard to its frame and constitution. The Subordinate Judge therefore made a decree in plaintiffs favour. Defendant 1 has then preferred this appeal. The question raised on his behalf is whether the plaintiffs are precluded from claiming the share they have claimed in this suit, seeing that their father was a party to the mortgage suit in which the decree for sale was made. The Subordinate Judge has dealt with this question in these words: In the plaint of the mortgage suit defendants 2 and 3 to this suit were impleaded as the principal defendants and the father of the plaintiffs as pro forma defendant. In the body of the plaint there is no allegation that defendants 2 and 3 had contracted the mortgage-debt in the interest of the joint family property, but in a remark just before the verification it was stated that as defendants 2 and 3 had borrowed on the mortgage of joint family property and for joint property purposes, the suit should be tried in the presence of the father of the plaintiffs as pro forma defendant 3 in that case . . . The matter is not altogether free from doubt and difficulty. As far as I have been able to hunt up, this matter seems to have been set at rest by the decision of the Calcutta High Court in the case reported in . . . In my opinion the facts of the case also attract the application of the principle laid down in Madhu Sudan V/s. Brae (1889) 16 Cal 300 (FB).