B JAGMOHAN DAS Vs. KUNWAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs-appellants for the recovery of money due on a mortgage effected by Dwarka Singh and Kuar Singh on behalf of the defendants and certain minors in favour of Jagmohan Das, Raghunath Das and Baijnath Das on the 25 of November 1919, and the main question for consideration was whether the mortgage bond aforesaid had been allotted by partition to the plaintiffs, i.e., to the branch of Jagmohan Das and Baijnath Das; and if so, was that partition binding on the contesting defendants- respondents who were the other members of the family to which the mortgagees originally belonged.

(2.) At the time the mortgage died was executed Raghunath Das, Jagmohan Das and Baijnath Das were joint. Hari Das another member of the same family had separated some time in 1917. Baldeo Das, a descendant of the branch of Girdhar Das, had similarly separated in 1919. When Hari Das separated the indigo factory at Bela and the village of Sheopurwa with the tenancy and mortgagee rights appertaining to the same were left with the branches represented by, Raghunath Das Jagmohan Das and the descendants of Girdhar Das. When Baldeo Das separated some cash was given to him, and he went out of the family estate. The allegation of the plaintiffs was that in 1921 there was a further partition and the mortgage bond in suit along with the indigo factory at Bela and the village of Sheopurwa with the tenancy and mortgagee rights appertaining to the same were sold by auction with liberty to each of the members of the family to bid for the same and then to divide the sale proceeds, and that by virtue of the arrangement and the sale so effected the mortgage bond in question was allotted to the shares of Jagmohan Das and Baijnath Das, who paid Rs. 43,400, for the purchase of the said lot. Badri Das, one of the sons of Lachman Das and the sons of Raghunath Das contested the exclusive right claimed by the plaintiffs to sue for the recovery of the mortgage money. They denied that any partition had been effected and further pleaded that if it was effected it was not binding on them.

(3.) The trial Court found that the property in question representing the Bela factory and the village Sheopurwa, including the tenancy and mortgagee rights appertaining thereto, had been purchased by Jagmohan Das and Baijnath Das for an inadequate value, and that the consent of Bisheshar Prasad, the elder brother of Badri Das, could in no case bind Badri Das or the other members of the family to the partition of the said property by the method which was then adopted to effect the same.