SARJU PARSHAD Vs. BIR BHADDAR SEWAK PANDAY

JUDGEMENT

(1.) ON the 7th December, 1864, one Mewa Lal obtained a decree for money against Bir Bhaddar, the predecessor of the Respondents, and one Sat Narain, in execution of which certain shares in certain villages were sold on the 20th of November, 1871, and were purchased by Nandan Tewari for Rs.l2,325, of which Rs. 9,000 were borrowed by him from Sarju Parshad, the father of the Appellant, in addition to Rs. 5,000 previously borrowed. By a deed of hypothecation, dated the 3rd of December, 1871, Nandan Tewari mortgaged the purchased shares of the villages to Sarju Parshad to secure the payment of the Rs. 9,000 and interest. The loan not having been paid, a suit was brought by Sarju Parshad against Nandan Tewari, and a decree was obtained for payment of the money and an order that the decree should be executed against the property hypothecated. At a sale by auction in execution of this decree on the 20th of August, 1874, Sarju Parshad became the purchaser of the property. He thereupon obtained mutation of names from the collector of the district, but the Commissioner on appeal by Bir Bhaddar and two other persons who were interested reversed this order, and directed that they should be recorded as the real owners of the property, the sale to Nandan Tewari being regarded as of an ismfarzi character only. Thereupon Sarju Parshad brought two suits against Bir Bhaddar and the two other persons to recover possession of the property by cancelment of the Commissioner's order. The record in the present suit is very imperfect, and contains only the decrees original and on appeal in one suit; but there is a written statement of Bir Bhaddar, and what is called a petition, which is apparently a written statement, also by him. Both are dated the 30th of July, 1880, and are substantially the same. In the petition Bir Bhaddar states as follows: "Nandan Tewari is my karinda (agent). When my property was put up for sale in the execution of Mewa Lal's decree, and 21st of November, 1871, was fixed for sale, I, with a view to purchase it, as advised by the Plaintiff himself, borrowed Rs. 5000 of the Plaintiff on the day of the sale, on a bond dated 18th of November, 1871, to deposit the earnest money, and pur chased the property in the name of Nandan Tewari. Afterwards, in order to deposit the balance of the consideration money, another bond for Rs. 9000 was executed in Plaintiff's favour. As Nandan Tewari was a fictitious purchaser, the Plaintiff therefore got the last-mentioned document executed in his {Nandan Tewari's) name according to his choice. Nandan Tewari was never the actual purchaser. Neither he nor the Plaintiff has ever been put in possession."

(2.) THE Lower Court found that Nandan Tewari was only a nominal purchaser, and that the real purchaser of the property was Bir Bhaddar, and dismissed the suit. The High Court, on appeal, being dissatisfied with the grounds of this judgment, required the Subordinate Judge to examine Sarju Parshad and submit his evidence to the High Court, which was done. Thereupon the High Court, in its judgment, held that Sarju Parshad "was necessarily aware that Nandan Tewari was a sham purchaser only at the auction sale of the i3rd of December, 1871, and that when he elected to sue him alone as the real and single obligor of the bond for Rs. 9000, and as the actual owner and representative of the estate bought with this money, he did so with full knowledge of the true and different facts of the case, and that therefore his present action to prove that Nandan Tewari was the real and bond fide purchaser and proprietor must fail," and it affirmed the decree of the Court below. This judgment was given on the 10th of April, 1882.

(3.) AFTER the judgment in the former suit, it might be difficult to hold that the deed executed by Nandan Tewari was a valid hypothecation of the property, and it is not necessary to decide that question. The facts admitted by Bir Bhaddar and also found by the Court in the former suit between these parties are sufficient to show that the Appellant, as the representative of Sarju Parshad, is entitled in equity to have it declared that the sums claimed with interest are a charge upon the property.