HARIHAR PANDEY Vs. VINDHAYACHAL RAI

JUDGEMENT

(1.) This is an appeal by defendant 1. It arises out of a suit for the declaration of the zarpeshgi right, of the plaintiffs in certain property, for the recovery of possession over it and for mesne profits.

(2.) The property originally belonged to defendants 3 to 7, who executed a zarpeshgi in favour of defendant 8 on 12 April 1924. The plaintiffs base their title on a deed of assignment, Ex. 3, in their favour executed by defendant 8 on 3rd March 1938 for a consideration of RS. 1000. The appellant challenges the passing of title under the assignment, on the ground that at the time of the assignment the zarpeshgi interest was attached in Money suit No. 26 of 1935 brought by the father of the appellant against defendant 8. The appellant claims the title as vested in himself by virtue of a civil court sale in the year 1940 in execution of the decree in suit No. 26 of 1935. The defence was rejected by the Courts below on the finding that the zarpesbgi interest was not effectively attached so as to prevent the passing of interest by the assignment, the ground being that the interest is immovable property and the attachment was made as of movable property.

(3.) Mr. Kailash Rai has urged three points : 1. That the zerpeshgi interest is movable property; 2. That even if it is immovable, the requirements of the law for the attachment of immovable property have been substantially complied with; and 3. That, under the assignment, no title or at most an imperfect title passed.