BYJNATH LALL Vs. RAMOODEEN CHOWDRY

JUDGEMENT

(1.) THE suit out of which these appeals have arisen was brought by the Appellant to recover possession and be registered as proprietor of various parcels of land, all of which once belonged to one Gopal Narain Singh, deceased, but had afterwards been purchased by different persons at several sales in execution of decrees against him. The Defendants were the representatives of Gopal Narain Singh, and the several auction purchasers; and the title on which the Plaintiff sued was based upon a deed of mortgage by way of conditional sale alleged to have been executed to him by Gopal Narain Singh; and upon the proceedings subsequently taken under Regulation 17 of 1806 to foreclose that mortgage.

(2.) THE principal defences raised in the suit, and indeed the only defences now to be considered, were--1st, that the mortgage deed having been made collusively and without consideration, was fraudulent and void as against the auction purchasers; and, 2nd, that even if it were good against them, it conferred no title on the Plaintiff to several of the parcels claimed by him.

(3.) AGAINST this decree, which bears the 8th of January, 1866, the different Defendants presented four separate appeals, the Plaintiff also preferring a cross appeal to the Judge of Zillah Tirhoot. That officer on the 14th of June, 1867, decided that the Plain-tiff had failed to establish that the mortgage deed was executed bond, fide, and dismissed the suit. His decree was, however, reversed on special appeal by a division bench of the High Court, which transferred the regular appeals for final hearing and decision to itself. There is no further trace of Plaintiff's cross appeal; but the appeals of the different Defendants were separately numbered in the High Court as Nos. 96, 100, 101, and 102, and were heard by this division bench, consisting of Mr. Justice Kemp and Mr. Justice Jackson, which made a separate decree in each. On appeals Nos. 96 and 101, the two Judges were divided in opinion, Mr. Justice Kemp holding that the mortgage was a fictitious transaction in which no consideration passed, and that the suit ought on that ground to be dismissed generally; and Mr. Justice Jackson holding that the mortgage deed was executed bond fide and was valid, but that the Plaintiff could recover only such of the parcels claimed as were specifically mentioned in the deed. Accordingly, each of the decrees originally made on these appeals stated that the senior Judge had given a decree for the dismissal of the suit; but that the junior Judge dissented therefrom, and was of opinion that the Plaintiff ought to have a decree for certain of the lands claimed, inasmuch as they were included in the mortgage deed; but that his claim to others which were held not to be covered by the deed should stand dismissed.