TARAK NATH ROY CHOWDHURY Vs. SYAMA CHARAN CHOWDHURY

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of possession of the property in dispute on a declaration that the defendant No. 1 has not acquired any title to it by purchase at a sale held in execution of a decree against the defendant No. 2, and in the alternative for a decree declaring that the plaintiffs would be entitled to possession of the property on the death of the defendant No. 2. There was also a claim for contribution on account of certain payments made by the plaintiff to save the property from being sold in execution of a mortgage decree, and for satisfaction of other debts.

(2.) The property in dispute, Lot Chauratta, along with other properties belonged to one Gobind Nath Ray Chowdhury who died in 1873, leaving his widow Drobamoyi (the defendant No. 2) and a son Gropendra Nath. The son died in 1882, and the defendant No. 2 adopted a son Sree Nath who died in 1884. Thereupon Drobamoyi adopted the plaintiff No. 1 Tarak Nath in 1884, but subsequently ignoring his adoption, set up one Jogendra Nath as the adopted son in 1886. In 1891, Tarak Nath brought a suit against Drobamoyi and Jogendra Nath in respect of all the properties left by Gobinda Nath, which was compromised. By the compromise Tarak Nath wag admitted to be the adopted son, he was to get a 6-annas share of the estate, and Jogendra Nath was to get the remaining 10-annas share, that in the event of Jogendra Nath dying unmarried his 10-annas share would devolve upon Tarak Nath and similarly on the latter dying unmarried his 6-annas share would devolve upon Jogendra Nath, but Drobamoyi was to remain in possession of the estate for her life, subject to the payment of certain debts, a certain sum of money to Tarak Nath as costs of litigation, and for building a house and an annuity to him forhis life. It was agreed that Drobamoyi would execute mortgage-bonds jointly with Tarak Nath for raising money to pay off debts. It was further agreed that if Drobamoyi failed to pay any debt, and in consequence thereof the properties were put up to sale, it would be considered as a case of waste by Drobamoyi, and in such a case, Tarak Nath would in her lifetime get possession of the 6-annas share. On the 29th March 1892, a decree was passed on the petition of compromise after it had been sanctioned on behalf of the minor Jogendra Nath by the Court. Jogendra Nath having subsequently died, the decree was amended by stating that Tarak Nath would be entitled to the 10-annas in the event of Jogendra Nath dying unmarried, and that the latter would be entitled to the 6-annas of Tarak Nath if he died unmarried these terms having been omitted from the decree. On the 6th June 1892, a mortgage-bond was executed in accordance with the terms of the compromise by Drobamoyi jointly with Tarak Nath in favour of Rai Dhanpat Singh Bahadur for Rs. 24,800, whereby 5 zemindaris including Lot Chauratta were mortgaged.

(3.) On the 6th April 1896, Rani Mina Koer (the widow of Rai Dhanpat) obtained a preliminary decree upon the mortgage-bond against Drobamoyi and Tarak Nath. On the 29th September 1896, Drobamoyi granted an ijara pattah for 20 years in favour of Rani Mina Koer in respect of the 5 zemindaris mcluding Lot Chauratta.