BALDEO PRASAD Vs. AKHOURI HIRAMBO NARAIN SINGH

JUDGEMENT

(1.) This appeal must, I think, be allowed. It arises out of a suit brought by the two appellants, Baldeo and Ghura, for a declaration that they were entitled to a half-share in certain properties, and that share was not affected by a certificate sale of June 5, 1931, held at the instance of defendant No. 1 against defendant No. 2 as the certificate-debtor Plaintiff Baldeo is a brother of defendant No. 2 and had conveyed his half-share in two out of the three properties in suit to Ghura. He still filed a petition of objection to the attachment of the three properties in the certificate proceedings but this objection was dismissed and the properties were brought to sale and purchased by defendant No. 1. The substantial defence to the suit appears to have been that Baldeo and defendant No. 2 were joint in status, that defendant No. 2 was the head of the joint family and that the debt in respect of which defendant No. 1 resorted to the certificate Court, was binding on both the brothers constituting the joint family. This defence was negatived by the trial Court and was not revived in the lower Appellate Court. Ft was also urged on behalf of the defence that the suit was not maintainable as framed. In the trial Court the objection on behalf of the defence was put in this way that Ghura could not maintain the suit, because he had notput in any objection before the certificate officer. It was also argued that the suit was barred under Section 42, Specific Relief Act, because the defendant auction-purchaser had taken out delivery of possession. As regards this last, it is conceded before us that the delivery of possession took place not before but after the institution of the suit. The contention that Ghura could not join in the suit because he had made no claim under Order XXI, Rule 58, Civil Procedure Code, as it was put in the trial Court, was negatived by that Court.

(2.) The learned Munsif also found in favour of the plaintiffs, as I have already indicated, as regards Baldeo being separate in status from defendant No. 2 and being entitled to a moiety in the three properties out of which he had conveyed his moiety in the properties to Ghura. The suit was accordingly decreed; Defendant No. 1 appealed, and the only ground that was pressed in appeal was that the two plaintiffs were not entitled to maintain this declaratory suit. The learned Additional Subordinate Judge observed that Baldeo, having, on his own showing, sold his moiety in two of the properties, had no right to put in a claim regarding them, and that, therefore, there was a misjoinder of plaintiffs and causes of action, Ghura's cause of action for a declaration of his title arising when the properties went out of his possession by the dakhaldehani that followed the sale. The learned Advocate for the respondents concedes, after looking into the papers, that none of the properties in suit had gone out of the possession of the plaintiffs at the date the suit was instituted, and it is clear that the learned Additional Subordinate Judge has proceeded on an erroneous footing altogether in giving to Ghura a case of action that was not in existence the date of institution of the suit. What made it necessary for the two plaintiffs to bring the suit for the declaration off their title was the certificate sale of June o, 1931. The certificate-debtor, as I have already slated, was defendant No. 2. Section 26 Public Demands Recovery Act, 1914, provides that: Where property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate debtor at the time of the sale, even though the property itself be specified.

(3.) As the plaintiffs were neither of them a party to the certificate proceedings, it is obvious that their interest in the three properties in suit had not and has not even now vested in defendant No. 1 as the purchaser at the certificate sale. As he had also not yet taken out delivery of possession, all that it was apparently necessary for the two plaintiffs to do was to obtain the declaration for which they used: of Ganga Ghulam V/s. Tapeshri Prasad. It has been urged that though Baldeo may have been entitled under Section 25, Public Demands Recovery Act, to bring a mere declaratory suit, Section 42, Specific Relief Act, made it impossible for Ghura to do the same; but the learned Advocate was not able to suggest what further relief Ghura could have asked for when the certificate sale could, not under Section 26, have passed his interest in the properties and no attempt was yet made to disturb his possession, even though it is a fact that he had not put in any claim or objection before the Certificate Officer. The learned Advocate has laid stress on the statement in para 4 of the plaint that the cause of action for the suit arose on June 5, 1931, when the petition of objection was rejected by the Certificate, Officer. If this is taken literally, there would not be a misjoinder of causes of action but all that would happen would be that Ghura would be without any cause of action at all, in view of the fact that he was no party to the petition of objection (which was rejected by the Certificate Officer) or indeed to the certificate proceedings themselves. But this plaint must be read as a whole. In para. 3 of the plaint it is stated that the petition of objection being summarily rejected, the sale was held on that very date, defendant No. 1 being the purchaser. The principal element in the cause of action whether of Baldeo or of Ghura was obviously the certificate sale notwithstanding the limited phraseology of para. 4 of the plaint.