PRATAPMULL AGARWALLA Vs. DHANBATI BIBI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in Suit No. 561 of 1933 from a decree of the High Court of Judicature at Fort William in Bengal in its appellate jurisdiction dated 5 June 1934, which reversed a decree passed by the said High Court in its original civil jurisdiction dated 21st November 1933, and dismissed the plaintiffs' suit with costs. The plaintiffs carry on business under the name and style of Pratapmull Rameswar as money-lenders. Chunilal Johury and his son, Motilal Johury, constituted a joint Hindu family governed by the Mitakshara law and from time to time the plaintiffs lent them money which they alleged was for legal necessity and for the benefit of the borrowers and their family on the security of properties belonging to them. On 21 December 1927, plaintiffs lent Chunilal and Motilal Rs. 25,000 at 8 per cent. interest on mortgage; on 12 October l928 they lent them a further sum of Rs. 2,00,000 at 7? per cent. interest on mortgage, and on 11 March 1929 they lent them Rs. 35,000 at 7 per cent. interest on mortgage. The mortgages wore upon the joint ancestral family property. Subsequent to these transactions Motilal had two sons born to him, viz. Narendra Singh Johury, born in October 1929, and Basant Singh Johury, born in January 1931, each of whom on birth became a member of the joint Hindu family. On 26 March 1930, Motilal instituted in the High Court at Calcutta a suit numbered 655 of 1930 for the partition of the joint family property, for the appointment of a receiver and other reliefs. The defendants in the suit were Chunilal Narendra Singh, Dhanabati, the wife of Chunilal and Narendra who was in the first instance called "Khoka." In July 1931, Basant Singh was added as a party and the name "Narendra" was substituted for "Khoka" in respect of the elder son. On 9 May 1931 the plaintiffs filed in the said High Court a suit, No. 1010 of 1931, on the said mortgages against Chunilal, Motilal, Narendra Singh and Basant Singh. In that suit Mt. Dhanabati, the wife of Chunilal was guardian ad litem of the minor defendants, Narendra Singh and Basant Singh. On 19 June 1931 Dhanabati, alias Dhanoo Bibi, filed her written statement in the partition suit. She claimed that she was entitled to a share in the joint estate equal to that of the plaintiff Motilal, and that her share should be allotted to her in severalty.

(2.) She prayed further that the joint estate should be charged with maintenance at the rate of Rs. 500 per month and that a receiver should be appointed to enforce the same. On 2nd July 1931, terms of settlement of the mortgage suit (No. 1010 of 1931) were agreed and were embodied in a document of that date, which was executed by Chunilal, Motilal and Dhanabati, as guardian ad litem of the infant defendants Narendra and Basant and the solicitors for the plaintiffs.

(3.) On 8 July 1931 a consent decree embodying the terms of settlement was made. By the terms thereof the defendants were to pay the sum of Rs. 3,03,328-1-3 within a year from the date of the aforesaid agreement, and in default of payment the mortgaged premises or a sufficient part thereof were to be sold with the approbation of the Registrar of the High Court instead of by the receiver appointed in the said suit. On 25 August 1931, a preliminary decree in the partition suit (No. 665 of 1930) was made. By the said decree it was declared that Dhanabati was entitled to three equal ninth parts or shares of the properties, a commissioner was appointed and he was directed to make a division of the properties into nine equal parts and to allot to Dhanabati three equal ninth parts or shares to be held and enjoyed by her in severalty as a Hindu wife under the Mitakshara school of Hindu law. It appears that nothing further was done in the partition suit after the said preliminary decree and no division of the property was carried out by the commissioner. On 3 May 1932 an order was made in the mortgage suit for payment of the income of the mortgaged property, which was in the hands of the receiver, to the plaintiffs, without prejudice to the alleged rights of Dhanabati.