MT KOMAL Vs. GUR CHARAN PRASAD

JUDGEMENT

(1.) This is a first appeal by Mt. Komal and connected with it is First Appeal No. 158 of 1934 by Khelari Das, continued after his death by Mt. Basmati, his widow. Both appeals arise out of a suit brought by Mt. Komal against Khelari Das, defendant 1, and Gurcharan Prasad and others, defendants 2 to 7, the representatives of Kai Bahadur Batuk Prasad, and it will be convenient to dispose of the two appeals by a single judgment. The suit was for a declaration that one third share in each of the properties mentioned at the foot of the plaint, which had been mortgaged by Khelari Das to the late Rai Bahadur Batuk Prasad, was owned and possessed by the plaintiff as the widow of Jangi Lal deceased and was not liable to sale to satisfy the mortgage debts for which the above mentioned share was aA.I.R.lleged to be liable under decree No. Ill of 1927 of the Court of the Subordinate Judge of Bonares as modified by decree No. 266 of 1928 of the High Court at Allahabad and that the said decrees were ineffectual and inoperative as against the plaintiff's share in the property. The Court below gave a peculiar declaration which will be mentioned later, and both Mt. Komal and Khelari Das were dissatisfied with the decision of the learned Civil Judge and hence the two appeals before us.

(2.) The allegations on which the plaintiff brought the suit might be set forth. One Parshotam Das had four sons, (1) Khelari Das, by his first wife, (2) Hori Lal, deceased, by his second wife, (3) Jangi Lal deceased and (4) Kripa Nidhan, deceased, by his third wife. All these sons were members of a joint Hindu family possessed of considerable house property in the city of Benares and some small items of zamindari property in the district of Benares and they remained joint till the death of Hori Lal which took place on 28 May 1922. The plaintiff alleged that she was first married on or about 3 May 1912 to Hori Lal and after his death in May 1922 was remarried to his younger step-brother, Jangi Lal, according to the custom, rites and ceremonies prevalent among the Jhusias on or about 23rd November 1922. Khelari Das brought Suit No. 64 of 1923 in the Court of the Subordinate Judge of Benares on or about 10 May 1923 against Jangi Lal and Kripa Nidhan, minor, for partition of the family properties and on 16 May 1923 a compromise was filed by Khelari Das and Jangi Lal in which it was stated that the matters in dispute had been settled between the parties and they had divided the entire family property in this way that each party should remain the owner in possession of one-third of every family property, i.e. the plaintiff should remain the owner in possession of one-third, defendant 1, Jangi Lal of one-third and defendant 2, Kripa Nidhan of one-third and every party should be responsible for the payment of the family debts to the extent of one-third each and that the parties had separately entered into possession and occupation of their respective shares. Kripa Nidhan who was a minor under the guardianship of Jangi Lal and who was about 16 also came before the Court on the same day and stated that Jangi Lal was his guardian and that the decision made by him was acceptable to Krips Nidhan as well. According to the prayer of the parties the case was struck off without being adjudicated upon.

(3.) The plaintiff then went on to say that after the above partition and after the death of Jangi Lal, which took place on 16 June 1923, Khelari Das executed three mortgages in favour of Rai Bahadur Batuk Prasad, one dated 6 August 1923 for Rs. 30,000, the other dated 23 August 1923 for Rs. 19,000, and the third dated 25 November 1924 for Rs. 12,000, and the mortgages were executed by Khelari Das for self and as guardian of Kripa Nidhan, and the plaintiff's share was also included in the mortgage deeds. Rai Bahadur Batuk Prasad brought a suit on 21 November 1927 (Suit No. 111 of 1927) in the Court of the Subordinate Judge of Benares and obtained a decree on the basis of the aforesaid three mortgages, but the plaintiff was not impleaded as a defendant in the suit. Khelari Das did not defend the suit of Batuk Prasad, but Kripa Nidhan put in a defence and the trial Court decreed the suit for Rs. 693-1-0 against the interest of Kripa Nidhan in the mortgaged property and a decree for the remaining sum claimed against Khelari Das and his interest in the mortgaged property. First Appeal No. 266 of 1928 was filed by Batuk Prasad who died during the pendency of the appeal and defendants 2 to 7 of the present suit were brought on the record as appellants. The High Court modified the decree of the trial Court, holding that Jangi Lal's one-third share after his death would go to Kripa Nidhan alone, with the result that Kripa Nidhan was the owner of two-thirds of the family property and Khelari Das was the owner of the one-third only, and Jangi Lal's estate was liable in the hands of Kripa Nidhan for Rs. 15,498-11-0 plus one-third of Rs. 693- 1-0, that Kripa Nidhan's separate estate was liable for one-third of Rs. 693-1-0 and that Khelari Das's one-third estate was liable for the rest of the mortgage money and one-third of Rs. 693-1-0.