SHIB CHANDRA KAR Vs. ACDULCKEN

JUDGEMENT

(1.) This case has taken rather a curious course, and it is about to be decided by the Court upon a point which, as far as I understand, was not taken in the Court of first instance, and was not mentioned in the grounds of appeal, but was one which occurred to the members of the Court, and which was put yesterday to Mr. Das and, I may say for myself, the case was argued exceedingly well on both sides, and when Mr. Das was faced with this point he met it with the candour, which always characterizes his conduct in Court, and inspite of his ingenuity he had to admit practically that there was no answer to it. When I come to deal with the question about costs, I shall have to say something of the course the case has taken. Before I deal with that, I propose to state shortly the facts of the case and then give my judgment.

(2.) The appeal is by Shib Chandra Kar, who appeals, as I have already said in dealing with the other part of the case, against the decision in favour of another defendant whose name is Dulcken. The learned Judge has decided that Shib Chandra Neogi and Chunilal Neogi formed a joint Hindu family and had a joint business carried on at premises No. 36 Foriapooker Street, that that property was purchased in the name of the wife of Shib Chandra Neogi, and that the plaintiffs who claim through Chunilal were entitled to half that property. The dispute between the defendant Shib Chandra Kar and Dulcken has been confined entirely to the other half, namely, what I may call the half to which the heirs of Shib Chandra Neogi were entitled.

(3.) Now, Shib Chandra Neogi had a daughter whose name was Giribala who had six sons, Satish Chunder Sur, Suresh Chunder Sur, Sirish Chander Sur, Sarat Chunder Sur, Subodh Chander Sur and Susil Chunder Sur. There were considerable dealings with the property in question into which I do not intend to go--the material dealings were three mortgages: the first was dated the 13th of February 1901 in which Giribala was the mortgagor and her eldest three sons, Satish, Saresh arid Sirish joined; the mortgage was to a man called Tincowrie Haldar, and the property was mortgaged for Rs. 4,000. On the 22nd of January 1902 there was another mortgage of the same property by Giribala and the same three sons, to Shib Chandra Kar, the defendant, for Rs. 4,500. On the 12th of January 1903, there was a further mortgage to one Nilkanta Pal and in this mortgage Giribala joined on behalf of herself and also on behalf of her two infant sons Subodh and Susil, and to this mortgage her first, third and fourth sons, Satish, Suresh and Sarat were parties, the second son Sirish having died in the meantime; that was a mortgage for Rs. 3,000. On the 25th of February 1904, Tincowry Haldar obtained a decree in Suit No. 278 of 1903; the defendants to that suit were Giribala, Satish and Suresh and the subsequent encumbrancers Shib Chandra Kar and Nilkanta Pal. On the 27th of April 1904, there was an agreement between Giribala and all her sons, except Sirish who was dead at that time, by which the parties agreed to sell the property in Foriapooker Street and another property to Dulcken subject to mortgages--the mortgages being specifically mentioned--and subject to the decree in Suit No. 273 of 1903. On the 17th of December 1905, Giribala died. On the 2nd of March 1906, Nilkanta Pal assigned his mortgage- debt and his benefit under the decree to the defendant Shib Chandra Kar. On the 23th of March 1906, there was a substitution order on the register of the suit by which Sarat and one or two of his brothers were added as parties. On the 24th of July 1903, there was a conveyance to Hutchison by Satish, Sarat and Suresh, the three sons, and Harish, their father, and it is the basis of the title of Dulcken. By that, these three sons purported to convey their 3/5th share of the property: in that conveyance there was no mention or recital of the, mortgage. On the 31st of July 1908, there was an order amending the decree and substituting the names of the sons for that of the mother Giribala; and, on the 3rd of May 1909 the decree was made absolute for sale. On the 16th of April 1910, Hutchison conveyed the property, or rather I think I shall be more accurate in saying the 3/5th share of half the property, to Dulcken for Rs. 500. On the 2nd of August 1910, Tincowrie Haldar assigned his decree to the defendant Shib Chandra Kar and all rights under it for Rs. 3,100. On the 23rd of August 1910 Shib Chandra Kar was made plaintiff in Suit No. 278 of 1903. In December there was a sale by the Registrar, and at this sale Shib Chandra Kar purchased all the properties, and paid a sum of Rs. 17,600. On the 7th March 1911, the sale certificate was handed to Shib Chandra, Kar. There is one other fact which I need now mention, and that is that on the 24th of March 1911 the infant sons, the fifth and sixth sons of Giribala in consideration of a sum of money, Rs. 500, released all interests in the property to the defendant Shib Chandra Kar.