JADO PRASAD Vs. JAMUNA PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by the defendants 1 party, and arises out of a decision in a suit for damages and compensation for breach of contract. The plaintiff- respondent, Jamuna Prasad, and his four brothers Singhesar Prasad, Benarsi Prasad, Bhagwat Prasad and Lachhmi Prasad were members of a Dayabhag family and separate. The descendants of Singhesar Prasad are defendants 2nd party. Benarsi Prasad died in 1980, leaving only a widow Sukhni, who also died before the suit. Bhagwat Prasad also died, leaving only two widows, Kumode Kumari and Pratima Kumari.

(2.) On 15 July 1921, all the branches of the family except Singhesar Prasad s, mortgaged 23 bighas and odd of land for a sum of Rs. 1200 to the defendant 3rd party Purandar Prasad. Subsequently, on 7 October 1923, all five branches of the family sold about 25 bighas of land for a sum of Rupees 3500 to the appellants. Under the terms of the kebala a sum of Rs. 1560, the amount then due as principal and interest, was left with the vendee to pay off the above mortgage. The mortgage debt, however, was never paid off by vendee--with the result that a suit was brought upon the mortgage which resulted in a decree and sale. Purander bought the mortgaged property, and on 14 September 1937, obtained delivery of possession. Out of the mortgaged property about 11 bighas was included in the property sold to the appellants, but 14 bighas and. odd specified in Schedule IV to the plaint was not so included. The result, therefore, was that as a result of the failure of the defendants 1 party to carry out the terms of the contract the plaintiff's family was dispossessed of this 14 bighas of land. For this loss compensation was claimed.

(3.) The suit was originally filed not only by Jamuna Prasad but also by the sons of Lachhmi Prasad, and by Kumode Kumari one of the widows of Bhagwat Prasad, all as paupers. Jamuna Prasad, however, was alone found to be a pauper, so Kumode Kumari and the sons of Lachhmi Prasad were removed from the category of plaintiff.