LACHHMESHWAR SAHAI Vs. MT MOTI RANI KUNWAR

JUDGEMENT

(1.) Narbadeshwar Sahai, a Hindu governed by the Mitakshara, died on 28 August 1926. He had been married three times and had a son by each wife. His eldest son was Ram Nandan, his second son was Lachhmeshwar, the plaintiff-appellant: his third son Sumeshwar was born in 1924. The defendant-respondent Mt. Moti Rani Kunwar was his third wife and was the mother of Sumeshwar. The suit out of which this appeal arises was brought by Lachhmeshwar against his step-mother in the Court of the Subordinate Judge of Bareilly on 22 May, 1931. It was a suit for the enforcement by sale of two mortgages dated 18 September 1926 and 20 September 1929.

(2.) The deed of 18 September 1926 was executed by the respondent within a month of her husband's death. It was for Rupees 5000, of which only Rs. 545 was advanced at the time, the balance being set-off against four sums of Rs. 2565, Rs. 1292, Rs. 448 and Rs. 150. The last mentioned sum (Rs. 150) was not in fact advanced and no claim is made in respect of it. The sums of Rs. 1292 and Rs. 448 were described as due for principal and interest on two promissory notes and a bond executed by Narbadeshwar. The sum of Rs. 2565 was described as due on the basis of a mortgage deed dated 23 December 1925. For this sum, a suit had been brought by the present appellant against Narbadeshwar and his wife and after his death in August 1926, the suit was by consent dismissed on 30 November upon the widow executing the mortgage of 18 September 1926.

(3.) The second of the mortgages now sought to be enforced was dated 20 September 1929, and was for Rs. 4000 borrowed by the respondent to pay her husband's debts. The properties mortgaged by the two deeds of 18 September 1926 and 20 September 1929, were different zamindari properties, but the respondent had derived title to them in the same way- viz., under a deed of partition dated 20 January 1925, which had been embodied in a compromise decree dated 27 March 1925. The first question which arises upon this appeal is whether the respondent's interest under this compromise was a transferable interest.