BHAGIRATHI DUBEY Vs. RAJKISHORE DUBEY

JUDGEMENT

(1.) One Raj Kishore Dubey owned certain zemindari property in mauzas Rampur and Aranwan Gulzar, pargana Kauna in the district of Azamgarh. On 1 July 1925, he transferred the property in suit with possession to one Katwaru who figures in this action as defendant 8. The document ostensibly amounted to a usufructuary mortgage for Rs. 800. Bhagirathi Dube, plaintiff-appellant instituted a suit for pre- emption on the allegation that the transaction in question was really an out and out sale but it was disguised with the outer trappings of a usufructuary mortgage.

(2.) The suit was resisted both by Raj Kishore Dube, the transferrer, and Katwaru, the transferee both of whom pleaded that the transaction was a usufructuary mortgage and the real consideration was Rs. 800 as set out in the document and not Rs. 200 as alleged by the plaintiff.

(3.) The 10 December 1925, was the date fixed for the final hearing of the case. Matters, however, took a dramatic turn, on 8 December 1925 when Raj Kishore Dube sold the property in dispute to defendants 2 to 7 On 10 December 1925, Bhagirathi Dube applied to the Court for time to reconsider his position more particularly with reference to the advisability or otherwise of impleading the vendees namely, defendants 2 to 7. On the following day, that is, on 11th December 1925, a compromise was effected between the plaintiff and Katwaru. The result of the compromise was that admitted that the transaction in reality was a sale and not a usufructuary mortgage. The parties agreed that the true consideration for the transfer was Rs. 800 and not Rs. 200 as alleged by the plaintiff. A decree in terms of the compromise was passed in favour of the plaintiff against Katwaru. Raj Kishore Dube, the original transferrer, not having appeared on that date in Court, an ex parte decree was passed against him.