BHARATPUR STATE Vs. SRI KRISHAN DAS

JUDGEMENT

(1.) This is a plaintiff's appeal, the plaintiff being the Bharatpur State through its administrator. On 15 January 1934 Bohra Dip Chand deceased, "who was the father of defendants second set took a lease of the village of Pani Gaon for a period of nine years from the plaintiff at an annual rental of Rs. 2,700. On 24th April 1924 he executed a security bond for Rs. 8,000 for due payment of the lease money and by means of that security bond he mortgaged a certain property in the village of Kanchrouli. Bohra Dip Chand defaulted in payment of the lease money in 1332 and 1333 Fasli; and then he gave up the lease, and soon afterwards he died. Thereafter the plaintiff State sued the sons of Bohra Dip Chand, i.e. defendants second set for recovery of the arrears of rent in respect of 1332 and 1333 Fasli and the suit was decreed by a Revenue Court in the District of Muttra on 25 May 1928. That decree was subsequently transferred for execution to Aligarh, in which district the property in suit is situated; and in execution of the said decree the property in suit was attached and 21 October 1929 was fixed for sale.

(2.) Meanwhile, however, defendants first set having obtained in 1927 a simple money decree against Bohra Dip Chand and his son Sardar Singh, defendant 6, put the property in suit to sale and purchased it themselves on 21 August 1929. They accordingly filed an objection under Order 21, Rule 58, Civil P.C. in the execution proceedings of the plaintiff,, and on 19 December 1929 the executing Court passed an order to the effect that the property in suit could not be sold in execution of the decree for arrears of rent of the Bharatpur State, but at the same time the Court recorded a finding that there was a charge of Rs. 8,000 of the State on the property in suit for recovery of which the State was competent to sue. The plaintiff State has accordingly instituted the present suit for recovery of the said amount with interest and costs by sale of the property in suit. The suit was contested by defendants first set and the main ground of contest was that the property in suit was the joint ancestral property of Bohra Dip Chand and his sons and that the mortgage was without legal necessity and was therefore invalid. A written statement to this same effect was put in by Lakshmi Chand, defendant 9, while Karan Singh defendant 7 filed a written statement in which he alleged that according to the plaintiff's own case he had separated from his family before the execution of the deed of lease and he had therefore been unnecessarily impleaded and was, entitled to his costs.

(3.) The Subordinate Judge of Aligarh who tried the suit has found against the plaintiff on the main issue; that is to say, he has found that Bohra Dip Chand was not competent to charge the property under the hypothecation bond of 24 April 1924 which he executed by way of Security. The suit has accordingly been dismissed with costs and the plaintiff State has come to this Court in appeal. The appeal is contested by defendants first set. Defendant 7 is also represented by counsel and he claims his costs on the ground that he has been unnecessarily impleaded in the appeal. Various pleas have been taken before us by learned Counsel for the plaintiff appellant; but some of them can be briefly disposed of. The first plea which we will deal with is a plea whereby learned Counsel for the plaintiff appellant attacks the finding of the Court below that the property in suit was ancestral. It appears to have been accepted at the trial that Bohra Dip Chand and three of his sons (other than Karan Singh) were joint; there does not seem to have been any allegation to the contrary. The property was apparently purchased by Bohra Dip Chand from the heirs of his brother after partition, but the evidence of plaintiff's own witness Ram Sarup discloses that there was a large nucleus of ancestral property from the funds of which the purchase might have been made. The fact that the property in suit was ancestral was practically admitted at the trial and the plea which has now been taken before us finds no place in the memorandum of appeal. In view of all the above circumstances we are satisfied that the property in suit was the joint ancestral property of the family and we accordingly reject this plea. The next point taken before us is that the defendants first set have taken a peculiar plea as regards the competence of Bohra Dip Chand which plea was only open to the sons unless it can be shown that defendants first set have acquired the right, title and interests of such sons as were joint with their father; and it is contended that such acquisition of rights has not been established. The decree of defendants first set was against Bohra Dip Chand and Sardar Singh only, and it is argued that it was duty of the defendants-respondents to show in this suit what members of the family they impleaded in the execution proceedings and whose rights they actually acquired under the sale which took place after the death of Bohra Dip Chand, and that then only would they have a right to impeach the validity of the mortgage. We are unable to accept this plea. As we have shown, Bohra Dip Chand and three of his sons were joint and the property was ancestral; and it was held by a Bench of this Court in Madan Lal V/s. Chiddu 1930 ALJ 1528, that in suit for sale upon a mortgage executed by the father of a Hindu family an auction-purchaser under a simple money decree against the father was entitled to put the mortgagee to proof of the validity of his mortgage on a ground which might have been taken by the sons. In any case the point is only of academic interest in this suit inasmuch as Lakshmi Chand, defendant 9, who was admittedly joint with his father, has himself set up this plea in his written statement; and he has instituted an appeal in this Court against the auction-sale of 21 August 1929 in favour of defendants first set.