LACHHMAN DAS Vs. MTGULAB DEVI

JUDGEMENT

(1.) This appeal arises out of a suit which was decided by the learned Subordinate Judge of Aligarh. It was a suit instituted by Mt. Gulab Devi for the partition of certain property of which the details are set forth in Schs. A, B and C of the plaint. The plaintiff alleged that she had inherited a share in this property from her deceased husband, Ram Chandar, under a will executed by him on 19 November 1918. She impleaded as defendants Lachhman Das, Rameshwar Das, Nathu and seven other persons. According to her Lachhman Das and Rameshwar Das were joint owners of the property with her husband. She impleaded Nathu because he was Rameshwar's son and the other seven persons because they were transferees of parts of the property under deeds which were executed after the death of Ram Chandar. The property in suit included interests created by three simple deeds of mortgage respectively dated 19 February 1920, (item 1 of Schedule B), 5th November 1919, (item 2, Schedule B), and 11 January 1921, (item 2, Schedule C). The defence about the two first of these mortgages, namely those in Schedule B, was that they had been redeemed respectively on 27 May 1925 and 23 May 1920. The learned Subordinate Judge held that the mortgages had been redeemed and that the suit for recovery of a share in the interests created by them was barred by limitation. He therefore dismissed the suit in so far as it related to these items.

(2.) It appears that he was under the misapprehension that the mortgage described in Schedule C had also been redeemed and that the same considerations applied to the interest created by it as applied to the interests created by the other two mortgages. He, therefore, dismissed the suit also in so far as it related to the interest created by this third mortgage. The general defence raised by Lachhman Das and Rameshwar Das was that all the properties included in the plaint were partnership property and that the plaintiff was not entitled to get a decree without instituting a suit for an account and a share of the profits of the partnership; They further contended that such a suit,, if it had been instituted, would have been barred by limitation under Art. 106, Schedule 1, Lim. Act. This defence was not accepted by the learned Subordinate Judge and he gave the plaintiff in the first instance a decree for partition of all the properties except those to which I have already referred, namely the interests created by the three deeds of mortgage. The learned Subordinate Judge delivered judgment on 13 July 1932. The defendants, Lachman Das and Rameshwar Das, instituted the appeal with which I am dealing on 26 July 1932. Meanwhile, however on 15 July 1932, the plaintiff had made an application under Secs.151 and 152, Civil P.C., asking; the Court to correct its judgment in so-far as it related to the interests created by the mortgage deed of 11 January 1921, referred to as item 2, Schedule C of the plaint. This application was followed on 21 July 1932 by another application for review of judgment on the same grounds. The applicant, that is the plaintiff, pointed out that the learned Judge had dismissed the suit for partition of the interest created by that mortgage under a misapprehension.

(3.) The learned Judge accepted this contention and he passed an order on 5th September 1932 accepting the application for review and directing that the suit should be decreed with respect to the interest created by the mortgage mentioned in Schedule C-2. This order led to another appeal 458 of 1932 instituted, by Lachhman Das and Rameshwar Das. Mt. Gulab Devi also on 21 October 1932 instituted an appeal No. 379 of 1932 against that part of the decree which dismissed her claim under the two mortgages mentioned as items 1 and 2, Schedule B of the plaint. There are therefore three connected appeals before us and I shall deal with all of them in this judgment. It is admitted that Ram Chander, Lachhman Das and Rameshar Das were at one time members of a joint Hindu family. The common ancestor was Bagar Mal. He had two sons, Kanhaiya Lal and Lokman Das. Ram Chander was the son of Kanhaiya Lal and Lachhman Das and Rameshwar Das are the sons of Lokman Das. The family remained joint till sometime towards the end of the year 1912. On 11 May 1913 Ram Chander, Lachhman Das and Rameshwar Das executed a deed in which they indicated that they had separated some time before and that the joint family was dissolved. They mentioned in this deed that there were two family firms, one carrying on business as traders in lime at Hathras under the style of Bagar Mal Kanhaiya Lal and the other carrying on business as manufacturers of and traders in lime at Katni Mundwara in the district of Jubbulpore in the Central Provinces under the style of Bagar Mal Lokman Das.