DHANABATI BIBI Vs. PROTAPMULL AGARWALLA

JUDGEMENT

(1.) This appeal raises some interesting and important points of Hindu Law. It concerns a joint. Hindu family governed by the Mitakshara School of Law. Prior to 1927 the family consisted of Chunilal Johury, whose wife Dhanabati Bibi is the present appellant, and his son Motilal, whose wife Jasbati was a defendant in the suit, but has not appealed. Between 1927 and 1929 Chunilal and Motilal mortgaged the family property in order to raise money. In 1929 there was an addition to the family when Narendra Singh, Motilal's eldest son, was born. In 1930 Motilal filed a suit against Chunilal, Narendra and Dhanabati for partition. In 1931 Basanta Singh was born to Motilal and he was added as a defendant in the partition suit. In 1931 the mortgagees instituted a suit against Chunilal, Motilal, Narendra and Basant Singh to enforce their mortgage. Dhanabati acted as guardian-ad-litem for the two infants, and in July 1931 a consent decree and an order for sale was made. In August 1931 a preliminary decree was passed by consent in the partition suit, and a declaration made that the plaintiff Motilal was entitled to one equal ninth part of the family property, Chunilal to three equal ninth parts, Dhanabati to three equal ninth parts and the infants Narendra and Basanta each to one equal ninth part. It was further ordered inter alia that the Commissioner should partition the property by metes and bounds and allot her share to Dhanabati to be held and enjoyed by her in severalty as a Hindu wife under the Mitakshara School of Hindu Law. But no further step has yet been taken in the suit. Soon after this Dhanabati began to assert that she had rights in the property adverse to the mortgagees and in May 1932 an order was made in the mortgage suit without prejudice to her alleged rights. In July 1932 Chunilal and Motilal were adjudged insolvents. In February 1933 the mortgagees applied inter alia to have Dhanabati and Jasbati added as parties in the mortgage suit; this they resisted, and that part of the application was dismissed with costs.

(2.) Thereupon the present suit was instituted in March 1933. In the plaint as originally filed, the plaintiffs simply set out the above facts and stated that they had no knowledge of the fact that Dhanabati was a party to the partition suit until after they had obtained their mortgage decree, and that they did not admit the validity of the alleged partition or that it concerned them as secured creditors. This was inaccurate because Dhanabati referred to the partition suit in an affidavit sworn in the mortgage suit in June 1931. Further, they said that they had been advised to institute the present suit in order to enable the female defendants to redeem the mortgages, if the Court was of opinion that the mortgage decree was not binding on them. They asked that the present suit be treated as supplementary to the mortgage suit, and for a declaration that the decree in that suit was binding on the defendants,; and in the alternative for a mortgage decree.

(3.) As filed, the plaint does not appear to have disclosed any cause of action, but during the hearing it was by leave amended by adding a statement that the partition was made, with the object of creating complications and of saving 1/3 of the property by having the same allotted to Dhanabati. Further, the, plaintiffs stated that Dhanabati and Jasbati were falsely asserting that the mortgages and, the proceedings and decree in the mortgage suit were illegal and not binding on them, and that they were colluding with Chunilal and Motilal to defeat the plaintiffs claims, and they asked in addition for a declaration that the mortgages and proceedings and decree were binding on all the defendants and in particular upon the defendants Dhanabati and Jasbati. In her written statement Dhanabati denied that the suit was maintainable, and that the Johuri defendants were members of a joint family after the date of the institution of the partition suit. Further she denied that the loans were for legal necessity, and asserted that the plaintiffs having already obtained a decree by consent on the alleged mortgages were precluded from instituting the present suit or from obtaining any relief thereby.