PHOOL CHAND Vs. MTMANTIA

JUDGEMENT

(1.) This is a defendants appeal against a decree of the lower Appellate Court modifying to some extent a decree of the Court of first instance passed in favour of fcka plaintiff-respondents. The plaintiffs brought the suit out of which this appeal arises for a declaration that they were the owners of 4078 sihams out of 17,280 sihams in the property left by Kunwar Khan and for possession of such share in the property if it was found that they were out of possession. The plaintiffs were Mt. Sahibzadi, a daughter of the said Kunwar Khan, and the heirs of Mt. Zaiban, deceased, another daughter of Kunwar Khan. It was the case for the plaintiffs that on Kunwar Khan's death they were entitled to 4078 sihams out of 17,280 sihams in the property left by the deceased. It was alleged that they entered into possession of their shares and that the other heirs of Kunwar Khan had without their know-ledge and consent mortgaged or transferred certain portions of Kunwar Khan's property and this suit was brought to obtain a declaration that they were the owners of their shares and possession of the property if found to be out of possession. The defendants were the other heirs of Kunwar Khan and various mortgagees or transferees of the property in question. They denied that the plaintiffs were heirs of Kunwar Khan and alleged that in any event they had never been in possession of their shares within 12 years of this suit, consequently their claim was barred by limitation. It was further pleaded that these transfers were made with the full knowledge of the plaintiffs and consequently they were estopped from making any claim to the property. Lastly, the defendants relied upon Section 41, T.P. Act.

(2.) The learned Civil Judge who tried this suit found as a fact that the plaintiffs were heirs of Kunwar Khan and were entitled upon his death to the shares claimed. He further held that the plaintiffs were in possession of their shares and the suit was not barred by limitation or by Section 41, T.P. Act, and that the plaintiffs were not estopped from making this claim. He however found that the transfers in question had been made by the other heirs of Kunwar Khan in order to raise money to pay off a mortgage executed by Kunwar Khan in 1894 in favour of one Hora Lal. He found that a sum of Rs. 1318 had been obtained by means of these transfers and such sum had been paid to discharge the mortgage held by Hora Lal. The learned Civil Judge was of opinion that the plaintiffs could not in equity obtain a declaration of their right unless they contributed their proportion of the money advanced by the transferees to the other heirs for the purpose of paying off Kunwar Khan's debts. The proportionate share of the plaintiffs was found to be Rs. 311 and a decree was passed in favour of the plaintiffs for a declaration of their right of ownership conditional upon the payment by them to the defendant transferees of the sum of Rs. 311.

(3.) The contesting defendants filed an appeal in the Court of the learned District Judge and the plaintiffs filed a cross-objection relating to such part of the decree which made the declaration conditional upon payment of Rs. 311 to the defendant transferees. The learned District Judge uphold the findings of the learned Civil Judge and dismissed the appeal and further allowed the cross-objection holding that there was no equity in favour of the defendant transferees. In the view of the learned District Judge, the plaintiffs were entitled to the declaration claimed in the suit and were in no way liable to the transferees to pay their share of the moneys advanced by the latter to pay off Kunwar Khan's debts. The only point taken in this appeal relates to this sum of Rs. 311. It has been strenuously argued by counsel for the appellants that the plaintiffs are not entitled to a declaration that they are owners of their shares in the property except on payment of the transferees of their proportionate share of the debts of Kunwar Khan discharged by means of the moneys advanced by the defendants. Upon the findings it is dear that upon the death of Kunwar Khan all his heirs entered into possession of his property and later the defendant heirs dealt with the property as if it belonged entirely to them. The mortgages or transfers in question were made by such heirs purporting to be the full owners of the property though it is undoubtedly true that the transfers in question were made in order to raise money which the defendant heirs eventually paid to creditors of Kunwar Khan deceased.