SHYAM LAL Vs. SOHAN LAL

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed dated 3 August 1911, executed by Tori and Duli in favour of Sheikh Wahid-ud-din for Rs. 1,000 at 2 per cent. per mensem compound interest. The property mortgaged consisted of 8 biswas out of 18 biswas 10 biswansis zamindari share in village Urena. The present plaintiffs claimed to be the transferees of the mortgagee rights under a sale-deed dated 12 May 1913.

(2.) It appears that in 1908, Tori and Duli had brought a suit for possession as reversioners against Damodar Das, defendant 2, who was in possession of the estate, alleging himself to be the adopted son of the deceased male owner. The suit was decreed by the Court of first instance and Damodar Das appealed to the High Court. While the appeal was pending, Tori and Duli executed the mortgage- deed of the 3 August 1911, which is in dispute in the present case. Subsequently on the 17 March 1913 Tori and Duli on the one hand, and Damodar Das on the other, compromised their claims. It was agreed between them that Tori and Duli would take half the share in the property and that Damodar Das would take the other half. It was also provided that Damodar Das should discharge the debt due to Wahid-ud-din and that neither Tori nor Duli nor their property should be liable therefor. Wahid-ud-din, the mortgagee, was no party to this compromise. A decree was framed in terms of the said compromise. It was after this decree that Wahid-ud-din executed the sale-deed of the 12 May 1913, in favour of the present plaintiffs, for a sum of Rs. 1,471.

(3.) One common plea raised by all the defendants is that it was Damodar Das himself who took this sale-deed in 1913 benami in the name of the plaintiffs, in order to defeat his creditors and transferees. It was pleaded that by this arrangement Damodar Das has really discharged the mortgage of 1911, which, under the compromise decree, he was bound to pay up.