KAILASH PATI SAHAI Vs. JAGARNATH RAI

JUDGEMENT

(1.) This is an appeal by one of the defendants in a suit for a declaration that was dismissed by the trial Court, but decreed by the lower appellate Court. There is a great deal of confusion both of law and fact in the judgment of the Second. Additional Subordinate Judge of Ballia, Mr. Sri Nath, and it is necessary therefore to state at some length the circumstances from which the suit arose.

(2.) Sheo Govind, one of the defendant respondents, was a member of a joint family consisting of himself and his step-brothers, Shambu Nath and Sheo Kumar, who were also joined in the suit as defendants. In execution of a money decree against Sheo Govind certain property was attached and sold at auction, and it was purchased in the name of Mt. Rameshwari Devi, sister of the present defendant- appellant, for a sum of Rs. 1,800. The purchaser got a sale certificate and formal possession, and obtained mutation of names. The validity of this auction-sale was called in question in a partition suit between Sheo Govind and his step-brothers, and Mt. Rameshwari Devi was made a party to those proceedings. The matter was referred to arbitration, and the arbitrators held that the sale in favour of Mt. Rameshwari Devi was a good sale, but that as the parties had agreed that Mt. Rameshwari Devi would return the property to Sheo Govind and his step-brothers on receipt of the purchase money, namely, Rs. 1,200, from Shambu Nath and Sheo Kumar and Rs. 600 from Sheo Govind, a covenant was embodied in the decree that she would do so if they made payment in the month of Jeth in any year. The plaintiff-respondent in the present suit obtained a money decree against Sheo Govind in 1929, and applied in execution for attachment and sale of the disputed property on the ground that it belonged to Sheo Govind. This property, as I have already explained, was recorded in the name of Mt. Rameshwari Devi; but she had died in the meanwhile and it was her brother, the present appellant, who made an objection under Order 21, Rule 58, Civil P.C., as her heir, on the ground that the property was his. This objection was allowed and the plaintiff therefore filed the present suit.

(3.) The suit was based on the allegations that the auction-sale of 1924 was fictitious and that it was never enforced, so that the 1/3 share of Sheo Govind was liable to attachment and sale in execution of the plaintiff's decree. In the alternative, it was pleaded that if the sale were held to be valid, there was nevertheless a charge in favour of Sheo Govind in respect of 1/3 of the property, which had been created by the decree in the partition suit, and as a consequence it was prayed that that share should be attached and sold in execution of the decree. Apparently the plaintiff's meaning was that Sheo Govind's right of reconveyance could be attached and sold, and that a declaration to this effect ought to be decreed.