RAM NAIN SHUKUL Vs. GANGA SHUKUL

JUDGEMENT

(1.) The circumstances under which this appeal arises are as follows: On 13th November 1898 one Bindeari Shukal executed a deed of mortgage of a 3-pie 5- khunis zemindari share in Mouza Panapur in favour of one Slieo Bakhsh Shukal, grandfather of defendants Nos. 1 to 4 and the husband of defendant No. 5, On 23rd July 1902 the mortgagee brought a suit for sale on foot of the said mortgage. Bindesri Shukul was the principal defendant in the said suit, but his sons Ram Suchit and Ram Nain, who wore then minors, were also impleaded as defendants to that suit under the guardianship of their father. It was alleged in the suit that the defendants were members of a joint Hindu family of which the first defendant was the head and the managing member. The plaint went on to say that the father had borrowed the money for certain legal and necessary purposes and for the benefit of the family, and the suit was for the sale of the entire mortgaged property. No copies of the application made for the appointment of defendant No. 1 as guardian of his minor sons, nor a copy of the order, if any, appointing him such a guardian has been filed. The whole record of that suit is not before me, and I am, therefore, unable to say that such an application was made and granted.

(2.) On 11th August 1902, the father on his own behalf and as guardian of his minor sons filed a confession of judgment, on the strength of which a decree for sale was made on that date. A decree absolute for sale was made on 15th April 1903, and in execution of the said decree the property in suit was put up to sale and purchased by the decree-holder on 20th January 1906. The decree-holders- purchasers are now in possession of the said property.

(3.) The present suit was filed by the sons of Bindesri Shukul on 27th November 19 12. They allege that they have only recently attained majority, and have come to know of the mortgage, the decree and the sale mentioned above and they brought this suit for obtaining a declaration that the decree aforesaid was obtained by the mortgagee fraudulently and is not binding upon the plaintiffs, and the sale in execution held thereunder is void against them. They claim possession of a 1/2 pie share in the village.