TEKAIT KALI PERSHAD SINGH Vs. ANUND ROY

JUDGEMENT

(1.) THE Appellant, Tekait Kali Pershad Singh, son of Tekait Meghraj Singh, deceased, instituted this suit on the 7th of April, 1881, against Dhanraj Roy, son of Alam Roy, deceased, and several others, to recover possession of the ghatwali mehal Kharna, comprising twenty-two mouzahs out of the mehals Kharagpore, which he alleged to be his ancestral ghatwali right.

(2.) THE plaint, inter alia, alleged that the family of the Plaintiff was governed by the Mitakshara law, but subject to a family custom that the eldest son became the malik without dividing with the other brothers, who are entitled to maintenance only; that the Tekait Meghraj was in possession, and that Plaintiff No. 1, his eldest son, was born in Aughran, 1241, and thereupon acquired a right with his father in the mehal; that Tekait Meghraj, without the consent of the Plaintiff No. 1, who had then attained his majority, under the bond dated the 26th Cheyt, 1265, borrowed the sum of Rs. 1300 from Alam Roy, ancestor of the Defendants Nos. 1, 2, and 3; that the aforesaid Alam Boy, on the basis of that bond, obtained a money decree against Meghraj without making the Plaintiff No. 1 a Defendant on the 18th of July, 1862; that on the sale in execution of that decree he got only the right and share of the said Tekait in the ghatwali mehal of mouzah Kharna sold by auction, and he purchased them himself at a reduced price, that is, for the sum of Rs. 3525, on the 13th of July, 1868; that Tekait Meghraj died in the month of Bhadon, 1278 Fusli (that is August, 1871); that the Plaintiff, agreeably to the usage of the family, governed by the Mitakshara law, acquired the right of direct possession in respect of the whole of mehal Kharna aforesaid, since the death of the said Tehait. The Defendants, in their written statement, denying most of the allegations in the plaint, specially contended that the Plaintiff had not any joint estate with his father, who was the sole proprietor; that the restrictions on the Mitakshara law did not affect the estate or the sale in question, and that the particular nature of the ghatwali tenure which was based on actual service is contrary to the joint right of the sons according to the Mitakshara law. The Defendants further relied on their title under the execution sale, and as to the allegation of the Plaintiff that the property was sold for a trifling sum, they pointed out that it was sold subject to a zurpesghi lease, which is in effect a mortgage, for Rs. 4923, which the purchasers had to redeem; that incumbrance had been created by Meghraj.

(3.) THE decision of the Subordinate Judge of Bhagulpore was given on the 13th of February, 1882. It occupies twenty-three large and closely-printed pages of the record. It exhibits great care and research, and is very full and very learned, but as it has been read at full length in the discussion at the Bar, it is not necessary to observe upon its reasoning. The decision of the Subordinate Judge is : That the claim of the Plaintiffs in respect of two-thirds share of mehal Kharna be decreed; that the Plaintiffs do get possession of the aforesaid two-thirds share on payment of two-thirds of the amount covered by the previous mortgage, amounting to Rs. 3282, and it is peculiar in this respect, that it is inconsistent with the case of the Plaintiff, and equally so with the defence. If the Plaintiff was entitled to relief on the case he has made, it was by a decree for the possession of the whole of the mehal Kharna.