AMARCHAND Vs. PARMANAND

JUDGEMENT

(1.) This second appeal raises an important question of law. The facts involved are simple and are as follows: One Raj Bahadur alias Avadh Behari died indebted to several persons. On Raj Bahadur's death, two persons claimed to be his heirs under the Hindu law, namely, the plaintiff, who is respondent 1 before us, and the respondent 2, Raj Bahadur. The mutation Court held that Raj Bahadur was in possession, and directed the plaintiff, Parmanand, to seek his relief in the civil Court. This was some time in 1925, Raj Bahadur having died on 14 November 1924. Two decrees for money were obtained against Raj Bahadur, respondent 2, one by Seth Kishori Lal, one of the appellants, and the other by Seth Nathu Lal and Bala Prasad respondents. Kishori Lal in execution of his decree obtained against Raj Bahadur (defendant 1 and respondent 2, son of Mohan Lai) proceeded to sell the property of the deceased Raj Bahadur alias Avadh Behari. The property was sold at an auction sale held by the Court, and defendant 2 who is the appellant 2, Amir Chand, purchased the same. The other decree-holders claimed rateable distribution in the price paid by Amir Chand. The plaintiff, Parmanand, brought a suit on 28 January 1928, claiming possession of the property as against his rival claimant, Raj Bahadur, son of Mohan Lal, the auction-purchaser Amir Chand and the three decree-holders on the allegation that he, the plaintiff, was the real heir of the deceased, that out of poverty he could not bring his suit earlier and that he was entitled to possession of the property.

(2.) The Court of first instance found that, as a matter of fact, Parmanand was a degree higher in the pedigree than Raj Bahadur son of Mohal Lal, that Parmanand was the real heir to the property of Raj Bahadur deceased and that the decrees had been obtained bona fide against Raj Bahadur defendant in the belief that he was the real heir and on the ground that Raj Bahadur was in possession of the property of the deceased Raj Bahadur alias Avadh Behari. On these findings the learned Munsif dismissed the suit holding that the estate of Raj Bahadur alias Avadh Behari was sufficiently represented by defendant 1, Raj Bahadur, for the purposes of the suit, decree and execution and that therefore the plaintiff was not entitled to maintain the suit.

(3.) On appeal by the plaintiff, the lower appellate Court, following a decision of this Court decreed the suit: hence this appeal.