JAGADAMBA PROSAD LALA Vs. BADRI PROSAD JHUNJHUNWALA

JUDGEMENT

(1.) The plaintiff in the suit in which this appeal has arisen prayed for a declaration of his right to the half-share of the Patni Lot Bamantore described in Clause 2, Sch. 1 to the plaint, and for confirmation of possession, or if the Court found that the plaintiff was out of possession of the whole or any portion of the property in suit, for recovery of possession thereof. The case of the plaintiff may be briefly stated: The Patni Lot Bamantore belonged to one Ram Bandhu Chatterji; Ram Bandhu mortgaged the same to defendant 2 and one other person; the half of the amount of the consideration money for the mortgage was paid by defendant 2 from out of the fund owned by the joint family consisting of defendant 2, his brother defendant 3, and his three step-brothers; there was a sale in pursuance of a decree for enforcement of the mortgage, passed in 1914, and the property was purchased by defendant 2 with his own money; defendant 2 then obtained possession of the property as purchaser at a mortgage sale in the year 1920; there was a suit for partition; brought by the step-brothers of defendant 2 against him and defendant 3 in the year 1917; the suit was disposed of in terms of an award given by the Raja of Panchkote who was appointed an arbitrator in the proceeding. As a result of the decree in the partition suit, passed on 9 February 1923, the money due from the mortgagor Ram Bandhu Chatterji on the mortgage mentioned above, was allotted to the share of defendant 2 alone to the exclusion of the other brothers, defendant 3 and the step- brothers. According to the plaintiff, defendant 3 had not, therefore, any claim, right, title or interest in the property now in dispute. The property, along with some other items of property, was mortgaged by defendant 2 to the plaintiff on 10 September 1927; and on 24 May 1930 the plaintiff obtained possession of the property under the terms of a decree for foreclosure, passed in his favour on 29 March 1930. The plaintiff asserted that he was a bona fide purchaser from the ostensible owner for valuable consideration.

(2.) The claim in the suit was resisted by defendant, 2. The plaintiff's suit was characterised by the contesting defendant as mala fide and false. The gist of the defence was that the plaintiff knowing and having reasons to believe that the brothers, defendants 2 and 3, were jointly in possession of the disputed property and that they were both owners of the same, entered into a collusive and unreal dealing with them, and having acted with the knowledge of the actual rights and possession of the brothers, could not be allowed to invoke the aid of any legal or equitable doctrine in support of any transaction against defendant 1, the creditor and purchaser of defendant 3's interest. It was asserted that, even assuming, but not admitting, that the plaintiff did advance any money on the basis of a real mortgage as alleged in the plaint, he had no right to claim any share of defendant 3. The reference to the arbitrator in the partition suit of 1917 was, according to defendant 1, collusive and fraudulent, and the award of the arbitrator, the Raja of Panchkote, was collusive and fraudulent, and the decision of the Court in the partition suit of 1917 based on the award was never acted upon; the award was merely a contrivance to keep the property in the name of defendant; 2 for the benefit of defendant 3. Defendants 2 and 3 were in joint possession ever since their purchase at the mortgage sale, and defendants 2 and 3 having been involved in debts, they both possessed the property in the benami of defendant 3's son. With reference to the mortgage executed by defendant 2 in favour of the plaintiff on 20 September 1927, and the decree passed in the suit for foreclosure on the footing of that mortgage, it was said that the mortgage and the decree on the basis of which the plaintiff claimed his title to the property in suit, were neither real nor bona fide, but were only collusive paper transactions resorted to with the ulterior purpose of defrauding the creditors of defendants 2 and 3, and that the plaintiff had acquired no title thereunder.

(3.) Defendant 2 filed a written statement. In his written statement, that defendant supported the case of the plaintiff as stated in the plaint. He admitted the statements made by the plaintiff in his plaint to be true. It was asserted by defendant 2 in his written statement that the Patni Lat Bamantore, belonged exclusively to him, and that defendant 3 had no right, title or interest in the same. With reference to the mortgage executed by defendant 2 in favour of the plaintiff on 20 September 1927, definite statements were made by defendant 2 in his written statement that he had to raise money by the said mortgage, and stated facts and circumstances going to indicate the reasons why money had to be raised on mortgage executed by him on 20 September 1927. The substantive case of the contesting defendant 1 was that he had purchased half share of the property in suit at a sale in execution of a money decree passed in favour of one Pran Krishna Chatterji, against defendant 3 and his wife on 28 July 1926, by the Subordinate Judge at Asansole; after the sale, certificate was granted to him on 14 July 1930 and he obtained delivery of possession on 21 July 1930, defendants 2 and 3 filed two claim cases in the names of the sons of defendant 3, which came to be dismissed. A suit brought after the dismissal of the claim cases was dismissed on 14th December 1931. There was also an application for setting aside the sale in execution, at which defendant 1 was the purchaser, made by defendant 3, which was rejected on 30 June 1930. Defendant 1 asserted that at the last resort defendants 2 and 3 had instituted a suit in the name of the plaintiff who was a benamidar and who had never any possession.