BISHESHWAR PRATAP SAHI Vs. PARATH NATH

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad, dated 30 April 1930, which affirmed a decree of the Subordinate Judge of Benares, dated 30 November 1925. The appellants are the heirs and legal representatives of Mt. Dulhin Radha Dulari Kunwar, hereinafter called Mt. Dulhin, who was defendant 1 in the suit. She died in June 1927, and the names of her legal representatives were placed on the record in her place in May 1928.

(2.) The suit was brought on 25 February 1924, by the plaintiff-respondents, both of whom were minors, against: (1) the said Mt Dulhin; (2) Mt. Chhunni, and (3) Mt. Shiam Sundar. The plaintiffs prayed for the following reliefs: (a) It may be declared by the Court that the plaintiffs ate the owners of the property, detailed below, under a deed of relinquishment executed by Mt. Chhunni in favour of the plaintiffs, dated 14 December 1923, and that it is by no means fit to be attached and sold by auction in execution of decree passed by the Subordinate Judge of Benares, in case No. 129 of 1923-Dulhin Radha Dulari Kunwar, plaintiff V/s. Mt. Chhunni and others, defendants-laid at Rs. 7,787-10-0. (b) All the costs of the suit may be charged to defendant 1. (c) In addition to or in place of the relief aforesaid any other relief to which the plaintiffs may be found entitled in the opinion of the Court may be granted to the plaintiffs."

(3.) The following pedigree shows the relationship of the plaintiffs and defendants 2 and 3: The following are the material facts: Bishambhar Panda died while the Hindu family was joint, and according to the principle of survivorship Narain Panda, his son, succeeded to and went into possession of his father's property, which is specified in the plaint. Narain died childless on 26 March, 1902, his widow having predeceased him, and thereupon his mother Mt. Chhunni went into possession of the said property with the limited interest of a Hindu widow. On 22 September, 1910, Mt. Chhunni and Mr.Shiam Sundar executed what purported to be a simple mortgage deed of four houses therein described in favour of Mt. Dulhin to secure the sum of Rs. 2,635-10.0 and interest. It was therein stated that the borrowing was for legal necessity, the greater part of the money being required to pay off a previous mortgage and certain promissory notes. Mt. Dulhin, defendant 1 in the present suit, instituted a suit on the said mortgage against Mt. Chhunni and Mt. Shiam Sundar, defendants 2 and 3 in the present suit, and judgment therein was given by the Subordinate Judge of Benares on 12 December 1923.