SHANKAR Vs. DAOOJI MISIR

JUDGEMENT

(1.) THIS is an appeal by two of the plaintiffs in the suit, viz. Shankar and Ramnath, against a decree of the High Court of Judicature at Allahabad dated 14th May 1928, which reversed a decree of the District Judge of Benares dated 10th November 1925. The last mentioned decree had affirmed a decree of the Additional Subordinate Judge of Benares dated 6th August 1925. Paltu, respondent 7 and plaintiff 1 in the suit, is the father of the plaintiffs-appellants. Munnu Lal was the father of Paltu ; Munnu Lal, Paltu and the plaintiffs appellants were members of a joint Hindu family governed by the Mitakshira law, and the house, which was the subject-matter of the suit, was part of the ancestral property of the said joint family. The suit was instituted on 8th November 1924; at that time Ramnath was a minor, and sued through Shankar as his next friend. The material facts are as follows:

(2.) ON 8th May 1915, Munnu Lal executed a deed conveying the said house to his son-in-law, Phalgu, with the ostensible object of paying off debts. At the date of the above mentioned deed both the plaintiffs-appellants were minors. Munnu Lal died in 1919, and after his death Phalgu executed and obtained the registration of a deed of sale of the said house in favour of Mt. Ganga Dei, the wife of Parsotam Misir. The last-mentioned sale deed for which there was consideration was dated 9th October 1919. Parsotam Misir and his wife were the defendants in the suit.

(3.) NO question has been raised in this appeal with regard to the condition imposed by the Subordinate Judge; and rightly so. In substance it was justified. The defendants as against the plaintiffs were entitled to stand in the shoes of the mortgagees in respect of the incumbrance upon the property which they had discharged out of their own moneys. The defendants appealed to the District Judge against the above mentioned decree, and the plaintiffs filed a cross-objection alleging that the Subordinate Judge should have decreed the plaintiffs' suit without the payment of any amount. The District Judge dismissed both the appeal and the cross objection with costs. The heirs and legal representatives of Parsotam Misir appealed from the District Judge to the High Court, which allowed the appeal, set aside the decrees of the District Judge and of the Subordinate Judge, and dismissed the plaintiffs' suit : the plaintiffs were ordered to pay the costs in all Courts.