MAHANT RAMDHAN PURI Vs. CHAUDHURY LACHMI NARAIN

JUDGEMENT

(1.) The suit out of which this appeal arises was brought in forma pauperis on 18 September 1922, by the three sons of one Kashinath against no fewer than 78 defendants. The plaint is a long and complicated document of 69 paragraphs and the general outline of its contents is that Kashinath, the father and karta of a Mitakshara family, had embarked upon a career of vice and extravagance, in the course of which he had parted with a number of the family properties and had lost other properties by sales in execution of decrees. The purpose of the plaint was to recover various properties from the persons to whom they had been thus alienated, upon the footing that the alienations were not made for family necessity and if made for Kashinath's antecedent debt, were not binding against his sons by reason that they were made for purposes which the Hindu law regards as immoral. In respect that all the transactions impugned were brought under the allegation as to Kashinath's bad character and habits, the various transactions raised what may be called a common question of fact, and in a very extended sense of the phrase it may be said, that they constituted a series of transactions, but their Lordships have no doubt that this plaint challenged a greater number of transactions and impleaded a greater number of defendants than was either necessary, reasonable or convenient: in so saying their Lordships have not forgotten that in some cases different defendants by virtue of different transactions have come to have competing claims in respect of the same property.

(2.) The appellants before their Lordships are defendants 28, 33 and 35, their names being Mahant Ramdhan Puri, Bipat Ram and Adjodhya Prasad respectively. The two last mentioned had joined in one written statement. The first had filed another written statement jointly with defendant 36. The properties in which these defendants, or some of them, were interested included some property as to which the Courts in India dismissed the plaintiffs' claim, and this appeal concerns two items of property only, each item being a share of a village called Rupau. Property No. 1 is a third share, that is a 5 annas 4 pies share in this village. Property No. 2 is a share represented by a very small fraction and is called the 2 dams 19 kauris share. Property No. 1 was part of the ancestral family property of Kashinath. Property No. 2 was not. The first connexion of the plaintiffs' family with property No. 2 was that on 18 February 1917, one Gopal Narain sold it to the plaintiffs' mother, Mt. Thakur Kuer. The transactions which took place with reference to the two properties now in question were fully investigated by the learned Subordinate Judge of Patna in the course of a long trial. His decision was that the plaintiffs have established their right to a three-fourths interest in each of these two properties and his conclusions have been concurred in by the High Court of Patna on appeal by these defendants. On this appeal no complaint is made of the decree being limited to a three-fourths interest. The trial Court's judgment is dated 31 March 1928, more than five years from the date of the plaint, and the decree of the High Court is dated 16 December 1932.

(3.) To deal first with property No. 1-the 5 annas 4 pies share : In 1913 Kashinath had executed in favour of his wife a mukarrari lease comprising this property and certain others. In 1915 this property was sold for arrears of road-cess and was purchased by Bipat Ram, the second of the present appellants, who in 1917 re- conveyed it to Mt. Thakur Kuer. The Courts in India having without difficulty found that the lady in this transaction was acting as her husband's nominee and on behalf of the joint family of which he was karta rightly concluded that these transactions did not exclude or affect the interest of the plaintiffs in this property. On 29 May 1920, however, one Durga Prasad who had lent money to Kashinath on a bill of exchange upon which a pleader called Sital Prasad was acceptor, and had obtained a money decree (15 November 1912) therefor against Kashinath, caused this property to be put up for sale in execution of the decree and purchased it himself. When he came to take possession of it however Kashinath's wife, Mt. Thakur Kuer, resisted him, claiming on the strength of her mukarrari lease; whereupon Durga Prasad brought a suit against Kashinath and his wife to have it declared that the mukarrari lease was a collusive document. In this suit Durga Prasad obtained an ex parte decree on 26 April 1920, and again took out execution against property No. 1 and purchased it himself. This execution sale having been confirmed and certain objections thereto taken by Kashinath and by his wife having been dismissed, each brought an appeal in the Court of the District Judge, challenging the execution sale. While these appeals were pending Durga Prasad died and the disputes were compromised with his widow. On 1 April 1921 an ijara deed was entered into by Kashinath and his wife with one Munshi Deonath Sahai comprising inter alia this property whereby Rs. 10,000 was raised to be given to Durga Prasad's widow as a term of the compromise. The lender, Munshi Deonath Sahai, was defendant 51 in the present suit and his rights under the ijara deed were challenged by the plaintiffs. On the same date the compromise with Durga Prasad's widow was completed by her executing what purports to be a deed of relinquishment, but which recites that both the appeals to the District Judge were withdrawn, that she had returned the sale certificate, that she had no longer any interest in or possession over the property, and that her rights had been acquired by Kashinath and his wife. This deed was stamped as a deed of relinquishment under the Indian Stamp Act and not at the higher rate payable in the case of a conveyance. Now between the purchase by Durga Prasad on 29 May 1920, and the deed of relinquishment (so called) of 1 April 1921, namely on 26 July 1920, this 5 annas 4 pies share in village Rupau had been purchased by Bipat Ram, appellant 2, before their Lordships, at another execution sale. In 1913 one Mohanth Dalmir Puri, a co-sharer malik of village Rupau, brought a partition Suit (No. 23 of 1913) against his co-sharers, including Kashinath, in respect of his interest in property No. 1, and also including Gopal Narain, to whom this judgment will make further reference in connexion with property No. 2. Kashinath having set up his wife's interest under the mukarrari lease before mentioned, she also was impleaded. The suit resulted in a decree for partition which contained certain orders for costs. In execution of this decree, at the instance of the plaintiff Mohanth Dalmir Puri, property No. 1 was put up for sale on 26 July 1920, as being then the property of Kashinath, and it was sold to Adjodhya Prasad, appellant 3, who was acting for Bipat Ram, appellant 2. This sale was duly confirmed by order of the Court. The present plaintiffs having made an unsuccessful attempt to suggest that the partition decree was not binding upon them, set up against Bipat Ram who purchased on 28 July 1920, the fact that on the 29 May of that year property No. 1 had been purchased by Durga Prasad. This by itself would not enable the plaintiffs to succeed in ejectment against the present appellants (as they could only succeed upon the strength of their own title), but the plaintiffs further rely upon the deed of 1 April 1921, as being not merely a relinquishment of claim by Durga Prasad's widow but a conveyance by her to the plaintiffs' father and mother of the title to property No. 1 which Durga Prasad obtained by his purchase of 29 May 1920, confirmed as it was by order of the executing Court and by the orders of the District Judge dismissing the two appeals therefrom. Their Lordships agree with the Courts in India in construing the deed of 1 April 1921 as a conveyance, and on this view though the sale to Bipat Ram on 26 July 1920 was valid and regular, the judgment-debtor had no longer any interest which could pass by such sale, and the title relied upon by the present appellants in respect of property No. 1 has no validity. The plaintiffs' title therefore prevails as the Courts in India have held.