MT MAINA Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This is an appeal by the defendant. A short pedigree may be given at once:

(2.) It appears that Ram Sudh Man Tiwari was possessed of some zamindari property. He died and after his death his widow Mt. Jaicha Tiwarin came into possession of the said property. After the death of the latter Mt. Hansrani, the daughter, came into possession of the property. She along with Ram Nain on 10th June 1892 sold the property to Kashi Sahu, who is the predecessor of the present defendants. It is not quite clear whether Mt. Hansrani figured as the guardian of Ram Lagan in the sale deed or whether Ram Nain figured as the guardian of Ram Lagan. The lower appellate Court says that the sale deed was executed by Ram Nain for self and as guardian of Ram Lagan. Be that as it may, the sale deed was on behalf of Mt. Hansrani, Ram Nain and Ram Lagan, the last one being a minor. It is unfortunate that neither the sale deed nor a copy of the sale deed is on the record of the present case. Some time in 1900 Ram Lagan brought suit No. 128 of 1900 in the Court of the Subordinate Judge of Gorakhpur on the allegation that Mt. Hansrani was a woman of weak intellect and Ram Nain had just attained majority at the time of the execution of the sale deed of 1892 and the sale was without any lawful necessity. He, therefore, prayed that it may be declared and established by the Court that the sale deed was null and void and ineffectual after the death of Mt. Hansrani, and that if any portion of the sale consideration be found to be lawful, proper orders may be issued accordingly. The learned Subordinate Judge who tried the suit of 1900 was of the opinion that there was legal 1 necessity for Rs. 1,125 and there was no legal necessity for Rs. 726. The decree that was passed in the case was in the I following terms: It is ordered and decreed that the suit be 1 decreed thus out of the sale consideration 1 Rs. 726 is illegal and so far as this amount relates to the sale deed it is not binding on the plaintiff after the death of his mother.

(3.) The exact meaning of this decree has been the subject of great controversy in the Courts below and before me. The present plaintiffs are the sons of Ram Lagan Misir and they brought the pre- sent suit for possession of the property covered by the sale deed of 1892 on the basis of the decree in suit No. 128 of 1900 , and their contention was that they were not liable to pay anything to the defendant inasmuch as more than Rs. 1,125 1 (the sum adjudged to be for legal necessity in the former suit) had been realised by the defendants because the defendants I had been in possession of the property for a considerable number of years, and in the alternative the plaintiffs expressed I willingness to pay such sum as was considered proper by the Court. Their case was that a declaratory decree was obtained by Ram Lagan and that Mt. Hansrani having died on the 14 November 1919 the plaintiffs were entitled to obtain. possession of the property covered by the sale deed by reason of the declaratory decree obtained by their father. Ram Lagan died on 16 June 1924 and Ram Nain died on 3 January 1926, and the plaintiffs alleged that both the brothers. Ram Nain and Ram Lagan used to live jointly with the plaintiffs and the plaintiffs were the only heirs and survivors of the family.