RASIK CHANDRA CHAKRAVARTI Vs. JAGABANDHU CHAKRAVARTI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to enforce a simple mortgage-bond executed by defendant 1 in favour of plaintiff's father since deceased for a sum of Rs. 100 on the 25 Kartic 1385 B. S. To understand the case properly as also the arguments that were advanced before us it would be necessary to state the facts of the case in some detail. Defendant 1 the mortgagor, executed a first mortgage in favour of defendant 3's father in July 1909. On 11 November 1911 he executed in favour of the plaintiff's father a second mortgage, the suit for enforcement of which has given rise to the present appeal. On 7th August 1915, the property was sold in execution of a rent-decree and purchased by defendant 2. In 1917 the plaintiff brought a suit to have this rent sale set aside on the ground of fraud as also on the allegation that defendant 2 was a benamidar for defendant 1

(2.) This suit, however, was dismissed on 3 September 1919. Thereafter on 7 July 1920 defendant 1, the mortgagor, sold the property to defendant 3 in satisfaction of the first mortgage for Rs. 290 and after the sale by defendant 1 to defendant 3 they dispossessed defendant 2 from the property in suit. Thereafter defendant 2 brought a suit for recovery of possession from defendant 3 and defendant 1 and this suit was decreed on 8 May 1923. Plaintiff's suit for enforcement of the mortgage-bond was contested by defendant 2, on, amongst others, the allegation that as defendant 2 had purchased the lands in execution of a decree for arrears of rent the plaintiff could not follow the property in suit for the satisfaction of his mortgage-debt. The Court of first instance gave a decree to the plaintiff and in the decree it was directed that the balance of the sale proceeds after the sale, if any, should be paid to defendant 2. On appeal the lower appellate Court found among other things that defendant 2 was only a benamidar for defendant 1, the mortgagor, and the Court of appeal below dismissed the appeal and confirmed the decree that had been made by the Court of first instance. Defendant 2 has appealed to this Court.

(3.) A number of points were taken on behalf of the appellate before us and I will take them up seriatim. It was first of all contended that the finding of the lower appellate Court on the question of benami was unnecessary inasmuch as the decree of the first Court which was confirmed by the lower appellate Court was based on the fact that defendant 2 is the real owner of the property and not a benamidar of defendant 1. The decree of the lower appellate Court as it stands whereby the decree of the Court of first instance was affirmed in its entirety is not strictly in accordance with the finding arrived at by the lower appellate Court on the question of benami. But the decree which the lower appellate Court made was made after the lower appellate Court had arrived at its finding on the question of benami and at the time when the lower appellate Court arrived at that finding there was nothing to prevent it from taking up and determining the question whether defendant 2 was the real owner or benamidar of defendant 1.