KR LAL SINGH Vs. MTCHOTEY BETI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of a half share in a property acquired at an auction-sale by the defendant Lal Singh. The mortgagee lights under a deed of mortgage devolved on Lal Singh and Bhikam Singh in equal shaies. Lal Singh brought a suit for sale on the basis of the deed against the mortgagors and impleaded Bhikam as a pro forma defendant. He obtained a decree for sale for the whole amount and in execution of that decree purchased the mortgaged property in his own name in lieu of the decretal amount, without paying any extra money out of his own pocket. Bhikam Singh died and it was on his death that his widow Mt. Chhotey Bibi brought the suit.

(2.) The defendant admitted that Bhikam had a share in the mortgage money and in the decretal amount, but did not admit that he acquired a share in the property purchased at auction by the defendant He pleaded that the claim was barred by limitation and also by S 66 Civil P.C., and further pleaded that the plaintiff, Mt. Chhotey Bibi, had under an arrangement, reliquished her claim to the half share in the decretal amount in consideration of the defendant making a gift of some other property of his to her nominee Pahlad Singh. The trial Court, without taking any evidence, dismissed the suit summarily holding that it was barred by S 66, Civil P.C. This finding has been over-ruled by the lower appellate Court. The lower appellate Court has further found that on the authority of Dwarka Prasad V/s. Mahadeo Prasad , the defendant purchased the property for the benefit of the plaintiff's husband, and having got the land in lieu of that decree he must now let the benefit of the decree be converted into the land which should go to the plaintiff. The learned Judge went on to hold that there was no registered deed of renunciation or even a written document and therefore the plaintiff was entitled to possession of the land in suit. As no evidence was taken by the trial Court, we cannot regard the finding of the lower appellate Court as a finding that no renunciation in point of fact had been proved. He appears to have thought that in the absence of a registered document it is not open to the defendant to set up an arrangement under which the plaintiff's claim to the property could be abandoned or even her claim to a share in the decretal amount renounced.

(3.) When the case came up before the High Court in second appeal it was referred to a Division Bench as the question of law raised was of some importance.