SUNDAR LAL Vs. CHHITAR MAL

JUDGEMENT

(1.) This second appeal arises "out of a suit for redemption which was brought by the plaintiffs appellants and a number of other parties who claim to be entitled to a share in a village named Alaula, comprising an area of 157-67 acres. The claim of the plaintiffs appellants was dismissed on the ground that it was barred by a decision in a suit brought by their father, the defendant Jhadda, in respect of the same cause of action. When the case came before us for hearing we pointed out that the decision of the suit in which Jhadda was the claimant did not operate as res judicata against his sons, the present appellants, and we therefore held that the Courts below were in error as to this. We remanded several issues to the lower appellate Court for determination under Section 566 of the Code of Civil Procedure. We have the finding upon these issues before us.

(2.) It has been found that, of the property of which possession was claimed in the suit,17 1/15 biswansis formed the share of the appellants. It has been also established that the mortgage under which the defendants held, the property was satisfied many years ago by perception of the rents and profits. Mr. Kedar Nath on behalf of the appellants has contended before us that the appellants, together with Jhadda, formed a joint Hindu family and that the appellants were therefore entitled, notwithstanding the decision against Jhadda in the previous suit, to redeem the entire of the share of the family in the joint family property. Mr. Sundar Lal on the other hand has pointed out authority for the proposition that when Jhadda sought to redeem the mortgaged property and failed in his attempt to do so, his share in the joint family property must be treated as necessarily excluded from the claim of the present appellants. We think that this latter contention is well founded, and that the appellants can only now obtain possession of their share of the joint family property and not the share also of their father Jhadda. This being so, the appellants will be declared entitled to possession of 17 1/15 biswansis, that is, 21 1/3 out of 60 shares of 157. 67 acres. They will also be entitled to their proportionate part of the sum found to be due in respect of profits up to the year 1309 Fasli and to a further sum in respect of their proportionate share of profits up to the time when possession shall be handed over to them-- these sums to be ascertained in the execution department. We accordingly allow the appeal to this extent and modify the decree of the lower appellate Court accordingly. The parties will have their costs in all Courts proportionate to failure and success.

(3.) Two objections were filed which" have not been pressed. We say nothing as to the costs of these objections.