JONAB ALI KHAN Vs. SATIS CHANDRA RAY

JUDGEMENT

(1.) One Nadiar Chand Roy was the owner of six properties which are plots Nos. 1 to 6 of schedule to the plaint. He mortgaged plots Nos. 1 to 4 to one Upendra Dutt in 1904 and again in 1906, and in 1913 he made a gift of the said properties in favour of one Chintamani Roy. Upendra Dutt obtained a preliminary decree on the basis of the first mortgage against Chintamani and others; and thereafter on 15 November 1920 he also obtained a final decree against them; but in the meantime on 23 September 1919 which was a date after the preliminary decree and before the final decree, Chintamani had died leaving his widow Nanibala and a minor son namely the plaintiff. On the second mortgage Upendra Dutt instituted a suit after Chintamani's death against the plaintiff and some other persons, impleading the plaintiff as a minor represented by his mother as his guardian. The mother did not appear in the suit and on that one Munshi Obeidur Rahim, a pleader of the Court was appointed Court guardian for the said minor. In April 1920 a preliminary decree was passed in the said suit, and thereafter in November 1920 a final decree was also passed therein. In pursuance of this final decree the mortgaged properties were put up to sale. Upendra purchased the said properties for Rs. 1,600 and having got his decree on the second mortgage satisfied attached the surplus sale-proceeds and credited the same in part satisfaction of his decree on the first mortgage. On 2 March, 1925 Upendra sold the properties to Jonab Ali Khan who made the purchase for himself and his brother Rayen Khan for Rs. 2,200. The plaintiff as a minor represented by his maternal uncle Behari Roy as his next friend, then commenced this suit on 27 July 1928.

(2.) He applied for permission to sue in forma pauperis but the application was disallowed. Court-fees were then paid on the plaint and the suit thereafter proceeded in the ordinary way. Of the six items of properties which were included in the plaintiff's claim in this suit, two namely plots Nos. 5 and 6 need no longer be considered because the Judge has held that the plaintiff had no cause of action as regards them and this conclusion has not been challenged before us. As regards the other four items, namely plots Nos. 1 to 4, put quite shortly the plaintiff claimed to recover possession of the properties on a declaration of his title thereto. The decrees and the sale by which he purported to have lost his title to the properties were attached under the following broad heads: (1) That the final decree on the first mortgage was a nullity as it had been passed with Chintamani as a party when he was dead; (2) that the decrees on the second mortgage were nullities inasmuch as the Court guardian was appointed in direct contravention of Order 32, Rule 3 (4) of the Code no notice having been served on the minor or on his mother with whom as his guardian he had been impleaded in the suit, or on his maternal uncle Behari Lal Roy through whom as his next friend the present suit has been instituted and who was really his natural guardian and with whom he was living at that time; (3) that the Court guardian did not communicate with the minor's mother or maternal uncle and neglected his duties as such by not entering any defence when as a matter of fact several substantial defences were open; (4) that the proceedings held in pursuance of the decree which culminated in the sale were vitiated by fraud, illegalities and material irregularities. The contesting defendant was defendant 2 who averred that there was no fraud, that every thing was legally done and all the proceedings were regularly taken and that the minor's maternal uncle with whom it is alleged that the minor was living at the relevant period, had full knowledge, at the time, of all that was happening about the suits and the other proceedings. The Subordinate Judge having decreed the suit, defendants 2 and 3 have preferred this appeal. It would be convenient to deal with the case under the four items of objection noted above on which the plaintiff rested his claim.

(3.) 1. It is conceded on behalf of the appellant that the final decree on first mortgage was passed at a date when Chinta mani was dead and without any substitution made of his heir in his place. That decree therefore was a nullity.