BHAGWATI PRASAD Vs. MUSRI LAL

JUDGEMENT

(1.) These two cross-appeals arise out of the same suit. One Sheo PraSad Lal was the original owner of the property in suit. He died in 1868, leaving a widow Mt. Hansrani and three daughters Mt. Karorpati, Mt. Indarpati and Mt. Ramkali, Mt. Indarpati died before her mother. The latter died in 1910, leaving her other two daughters surviving her. Mt. Ramkali died in 1911 without leaving any issue and Mt. Karorpati thus became entitled to the entire property which her father had left. She died in 1928, leaving two sons who are the plaintiffs in this suit. They challenge certain transfers which were made by their mother Mt. Karorpati and their maternal grandmother, Mt. Hansrani. These alienations may be divided into three sets: On 9 January 1877, Mt. Hansrani executed a simple mortgage bond for Rs. 600 in favour of one Parwarish Lal, by which she hypothecated a one anna share in the village of Barhara Baraipar and on 23 November 1879, she executed a simple money bond for Rs. 609 in favour of the same Parwarish Lal. In 1882 Parwarish Lal sued for recovery of the amount due under both the above mentioned bonds and a compromise decree was passed for sale of a one anna two pie share in the village of Barhara Baraipar. The said share was sold in execution and it was purchased by the defendant's father who is now dead.

(2.) Mt. Hansrani executed three mortgage bonds, one on 29 July 1884, for Rs. 500; another on 4 June 1885, for Rs. 250 and the third on 12 February 1886, for Rs. 400, all three being in favour of the defendant's father. On 29 July 1890, the amount due under these three bonds was Rs. 2,650, and on that date Mt. Hansrani executed a sale-deed in respect of a 10 pie share in the same village in lieu of Rs. 2,250 out of the total amount of Rs. 2,650 which was due from her. Mt. Hansrani on some date which does not appear from the record, had executed a deed of gift in favour of her two daughters, Mt. Karorpati and Mt. Ramkali in respect of a six pie share each. On 9 September 1890, Mt. Karorpati executed a simple mortgage bond for Rs. 600 in favour of the defendant in respect of her six pie share. In 1893 the defendant sued on foot of that mortgage and obtained a decree and in execution thereof he purchased the said share.

(3.) It is alleged on behalf of the plaintiffs that there was no legal necessity for any of the above mentioned alienations. The defence is that all the transfers in question were executed by Mt. Hansrani and Mt. Karorpati respectively for legal necessity and are valid and binding upon the plaintiffs. The defendant also pleaded that the suit was barred under Section 11, Civil P.C., in respect of the first set of alienations. The Court below has accepted the plea of res judicata in respect of the first sot of alienations. It has held that the second set of alienations were for legal necessity, but that there was no legal necessity for the alienation made by Mt. Karorpati. Mt. Karorpati instituted a suit (suit No. 115 of 1921), to avoid the auction sale in favour of the defendant's father which had taken place on 20th December 1883, and that suit was ultimately dismissed by this Court on 30th March 1926. It is obvious that that judgment operates as res judicata in respect of the mortgage bond of 9 January 1877, the money bond of 23 November 1879 and the auction sale of 20 December 1883. The appeal of the plaintiffs is chiefly directed against the lower Court's finding in respect of the mortgage bonds which were executed by Mt. Hansrani in 1884, 1885 and 1886 and the sale deed which she executed on 29 July 1890. The first of these documents is dated 29 July 1884 and under it a sum of Rs. 500 was borrowed, ostensibly in order to pay off two prior bonds dated 27 June 1884 and 28 June 1884, as well as certain other debts which are said to have been contracted for the marrisge of one of the daughters. This bond was executed by Mt. Hansrani's brother on her behalf and it was attested by Harihar Prasad, who was related to Mt. Hansrani and was a son of Parwarish Lal. According to the recitals in the bond Mt. Hansrani had to pay the two prior bonds of which mention has already been made and also had to meet the expenses of the marriage of her daughter. The second bond is dated 4 June 1885, and was for Rs. 250.