LALA LAKSHMI NATH SETH Vs. PTKANHAIYA LAL SHUKLA

JUDGEMENT

(1.) This is the defendant's appeal who was unsuccessful in both the Courts below. The facts are briefly these:

(2.) On 27 February 1935, Lala Lakshmi Nath Seth, who will be referred to hereafter as Seth, obtained a decree for underproprietary rent against a large number of persons including Pandit Kanhaiya Lal Shukla, Ram Bakhsh and Ganga Ram. Seth is the superior proprietor of village Targaon in respect of which the decree for underproprietary rent was obtained. On 23 November 1935, Ram Bakhsh and others applied under Section 4, Encumbered Estates Act. The application was in due course forwarded to the Special Judge, where Seth put forward his claim as one of the creditors. The application was, however, dismissed by the Sub Divisional Officer] on 26 May 1938, on the ground that all the] members of the joint Hindu family had not joined and also on account of certain other technical defects. This order was upheld right up to the Board of Revenue on 19 October 1938. The Special Judge before whom the proceedings were pending also dismissed the application on 26 July 1938, and this order was upheld by the late Chief Court of Avadh on 3 December 1941. In the meantime on 26th February 1938 Seth applied for the sale of underproprietary rights in execution of his decree. The sale was held and the property was purchased by Seth himself on 20 September 1939. The sale was confirmed on 4 September 1940, possession being delivered to the auction-purchaser on 29 June 1942.

(3.) It may also be mentioned that after the U.P. Encumbered Estates (Amendment) Act, 1939 (No. XI