NIRMAL KUMAR NAWLAKHA Vs. SANT LAL MAHTO

JUDGEMENT

(1.) The plaintiff respondent instituted the suit giving rise to this appeal on 1st August 1930, for partition of five annas four pies share in the property mentioned as lota 1 to 17 in Schedule A and lots 1 to 4 in Schedule B and 1 bigha out of lot No. 5 in Schedule B, There were a number of defendants to this action but we are here concerned with defendant 16, Nirmal Kumar Nawlakha who resisted the claim for partition so far as the properties with which he was concerned as purchaser from two ladies of the family of Bansing Mahto, the remote ancestor of their husbands. The learned Subordinate Judge has given a decree to the plaintiff as claimed and defendant 16 alone has appealed.

(2.) The following facts are necessary in order to understand the nature of the controversy and the points that arise for our decision. Bansing Mahto, the remote ancestor already named, had four sons: Bhagwan, Hardayal, Makhan and Madan. Bhagwan had two sons, Kishun, the father of Kamala and Lachmi, and Rajbahadur who was the husband of Mt. Sampato. (It is not necessary to state that Bhagwan had another son Chandi but the evidence is not clear on this point and therefore he is ignored for the purpose of this decision.) Hardayal had a son, Shib Prasad, who left a widow, Mt. Saro. Makhan had two grandsons, Jagat and Bhukhan, and the last son, Madan, had two sons, Gopal, father of Mewa, and Tilak, father of Khantar and Ajodhya. The remoter descendants of these persons named above are not being mentioned in this statement. The plaintiff took a mortgage on 9th September 1920 with respect to five annas four pies share of Soh. A properties mentioned above from Kamla and Lachmi, who, according to the plaintiff, were entitled to this share on the death of Raj Bahadur who died in a state of jointness with Kishun and his sons. The plaintiff also alleges that Hardayal and Shib Prasad having died in a state of jointness with the brothers of Hardayal, the joint family property came to be owned by three branches, namely Bhagwan, Makhan and Madan's branch and they continued as such till 1914 when he alleges that the partition took place between these surviving branches with the result that each branch came to own an ascertained share of five annas four pies in the joint family property. The plaintiff obtained a mortgage decree which was made final on 5th November 1927 and he purchased the properties which were mortgaged to him in execution of his decree on 22 December, 1928. The plaintiff also purchased on 17 November 1927 some of the properties in suit by sale deed from the same Kamla and Lachmi. The plaintiff therefore bases his title upon these transactions and claims to be entitled to be placed in possession of the five annas four pies share of his vendors. So far as this appeal is concerned, it is only necessary to state that this action was also resisted by defendant 16 who asserted his title in the following circumstances: His case is that the joint family of Ban sing effected a separation by ascertainment of shares in or about the year 1894 with the result that each of the four brothers named above were entitled to a four annas share in the family properties. Therefore Hardayal was entitled to four annas and on his death his son Shib Prasad became entitled to that four annas which became the inheritance of his widow Mt. Saro. Similarly Bhagwan having died, his share descended to his sons Kishun and Rajbahadur in equal two annas share each. Rajbahadur having died, his share descended to his widow Mt. Sampato and Kishun's two annas descended to his two sons Kamla and Lachmi by survivorship. Therefore defendant 16 contends that the plaintiff is entitled to only two annas share of his mortgagors and not five annas four pies as erroneously asserted by him.

(3.) The next relevant event which is necessary to state is that the two Mts. Sampato and Saro instituted partition suits in 1925 in the Court of the Subordinate Judge of Purnea in which they made all the members of the joint family defendants. Kamla and Lachmi (who are defendants 33 and 34 in this action) resisted the claim on the ground that the ladies had no right to claim partition but were entitled to maintenance only and these defendants also asserted in that suit that they were entitled to five annas four pies of the properties and that the Musummats were entitled to no share. But the learned Subordinate Judge in his judgment dated 8 July 1925 (Ex. M) decreed the suit of the two ladies holding that he was satisfied that the share of those ladies was as asserted by them and he was also satisfied that the partition in the family took place in 1894. This was followed by actual partition effected by a commissioner appointed by the Court at the instance of the plaintiff Musummats. Defendant 16 has taken two conveyances dated 9 August 1928 from these two ladies, with respect to six items of property from Mt. Saro (defendant 19) for Rs. 4,000 and for eight items of property from Mt. Sampato (defendant 20) for Rs. 2,000. This defendant says that he is a bona fide purchaser for value from these two ladies whose title was determined in judgment (Ex. M.) He also relies upon the survey of 1905 which supports the case of partition before the survey. He accordingly resists the claim of the plaintiff to partition and he contends that the plaintiff being the simple mortgagee is bound by the result of the partition action unless it is held to be fraudulent and that the plaintiff can not question the title and possession of this defendant 16. The plaintiff is fully alive to the difficulty in his way and accordingly he alleged in his plaint that the partition action was instituted with the object of defrauding him of his just claim and that the same was collusive and fraudulent.