LAWS(PVC)-1934-1-14

JUTHAN TEWARI Vs. PARASNATH SINGH

Decided On January 23, 1934
JUTHAN TEWARI Appellant
V/S
PARASNATH SINGH Respondents

JUDGEMENT

(1.) This appeal is by the plaintiff in a suit instituted by him for a declaration that the defendant No. 2, was not entitled to sell certain properties in execution of a mortgage decree obtained by him against a Hindu widow defendant No. 1. He also sought a prepetual injunction against defendant No. 2 restraining him from selling the properties in question. The trial Court gave the plaintiff a decree, but the Court of appeal below has dismissed the suit.

(2.) The plaintiffs case is this. One Komal Tewary was the uncle of Balgobind Tewari and they were members of a joint Mitakshara family. Komal died first and all the properties were taken by Balgobind as a surviving member of the family and, therefore, Rambilas Kuer, who is the widow of Komal, did not succeed to any property of Komal. Balgobind died leaving three widows, and on the death of the last surviving widow, the plaintiff as the nearest reve(sic)sioner of Balgobind succeeded to his estate. In 1907 the plaintiff instituted before the Subordinate Judge of Arrah a suit against defendant No. 1 and her alienees for recovery of possession of properties in their possession on the allegation that they were the joint family -properties of Komal and Balgobind and that defendant No. 1 of the present suit had no right in them and that the alienations by her were, illegal and ineffective. The two properties now in suit were also the subject-matter of that litigation. The suit was decreed. Three appeals were preferred to the Calcutta High Court against this decree. Two, of them were on behalf of two alienees of defendant No. 1, and one on behalf of the defendent No. 1, herself. The appeals of one set of alienees, namely, Bhawani Singh and others and the appeal of defendant No. 1 were dismissed for default. The appeal of the other set of alienees (No. 282 of 1909), namely, that of Bhajjan Singh and others who were defendants Nos. 12 to 14 in that suit was heard and allowed, and the decree of the lower Court so far as it related to the properties of the aforesaid defendants was set aside. I shall have to deal with the judgment of the High Court in this appeal later on. After this appeal was allowed defendant No. 1 Rambilaso Kuer successfully secured the restoration of her appeal on February 20, 1913. The appeal was, however, compromised on March 29, 1915. By this compromise defendant No 1 secured 28 bighas of land by way of maintenance and allowed her appeal to be dismissed, and admitted that her husband was joint with Balgobind. In between these two dates, namely, the restoration of appeal on February 20, 1913, and its dismissal on compromise on March 20, 1915, defendant No. 1 executed two mortgages in respect of the properties in suit in favour of the father of the defendant No. 2. One was on September 24, 1913, and another on December 9, 1913. The defendant No. 2 brought a suit to enforce these mortgages. The plaintiff attempted to be impleaded in that suit but was unsuccessful. A decree for sale was passed in due course, and the defendant No. 2 proceeded to sell the mortgaged properties which are the subject-matter of this litigation and were the subject- matter of the previous suit and the compromise decree passed on March 29, 1915. The plaintiff thereupon instituted the present suit for declaration that Rambilaso Kuer had no right to mortgage these properties and to restrain the defendant No. 2 from proceeding to sell them. The trial Court, as I have said, decreed the suit. He held that Komal and Balgobind were joint and Rambilaso succeeded to no property on the death of Komal and that the compromise decree passed by the High Court on March 29, 1915, was binding upon the defendant No. 2 and their mortgages were governed by the principle of lis pendens.

(3.) On appeal the learned Subordinate Judge has held that the compromise decree was fraudulent and was not binding upon defendant No. 2 and has also held as a matter of fact that Komal was separate from Balgobind and that Rambilaso Kuer inherited the properties of Kohal and had full power to mortgage the properties in suit to defendant No. 2. The plaintiff has appealed.