RAM SARUP RAI Vs. CHARITTER RAI

JUDGEMENT

(1.) Not with standing the argument of Dr. M.L. Agarwala. I remain unconvinced that the decrees of the Courts below are wrong.

(2.) The suit giving rise to the present appeal was filed by the plaintiff-respondent, Charitter Rai, for the redemption of a mortgage dated the 28 of May, 1912, executed by Charitter Rai and his brother Nihora Rai, in respect of two plots of land, in favour of Subedar Rai, father of Defendant No. 3. After the date of the said mortgage, it appears that Ram Sundar Rai, son of Nihora Rai, alone executed a sale-deed of the entire zemindari property including the plots in dispute in favour of Defendant No. 4 on the 13 of May 1921. Thereafter, on the 20 of May 1921, Ram Sundar Rai applied to the Revenue Court, that mutation of names be effected in favour of Defendant No. 4 with respect to the property transferred to him by the sale-deed referred to above. Charitter Rai who admittedly was the owner of half of the share in the property conveyed by the sale-deed, and who had not joined in executing the sale-deed, filed an application in the Revenue Court on the 25 of July 1921, intimating that he had no concern with the property and that the vendee's name be entered in the revenue papers. Thereafter, on the 12 of July 1922, Ram Sarup Rai, Defendant No. 1 filed a suit for pre-emption, with respect to the sale made by Ram Sundar Rai, and the suit was eventually decreed and the pre-emptor, having complied with the terms of the decree, was substituted in place of the purchaser.

(3.) After all this, Charitter Rai brought the present suit for redemption of the mortgage noted above. His case was that the sale by Ram Sundar Rai alone was ineffectual to convey to the vendee his rights and interests in the property covered by the sate deed, and as such Defendant No. 1 could not acquire his rights and interests in the mortgaged property. In this view he alleged that he had a subsisting right to redeem the mortgage made by him and Nihora Rai. The defence to the Suit was that Ram Sundar Rai was the manager of a joint Hindu family consisting of himself and Charitter Rai, and that the sale by him was with the consent of Charitter Rai, and as such Charitter Rai had no right to maintain the suit. It was further urged in defence that the plaintiff consented to the sale and as such the claim was barred by the principle of estoppel,