HARI MOHAN OJHA Vs. BANSDHAJ PATHAK

JUDGEMENT

(1.) This second appeal was preferred by defendants 2 and 3 against the decision of the Subordinate Judge of Purulia reversing a decision of the Munsif. Since the filing of the appeal, defendant 3 has died. His heirs have been brought on the record as respondents. The appeal arises out of a suit brought by the plaintiff on a usufructuary mortgage executed by defendant 1. The plaintiff sought to obtain a money decree against the mortgagor for recovery of possession against defendants 2 and 3 who he alleged had dispossessed him from the mortgaged property. The mortgaged property belonged to three brothers, Jadu, Banamali, father of defendant 2 and Ananta, father of defendant 3. Jadu executed a kobala purporting to transfer his interest to his brother-in-law, defendant 1, the mortgagor. At the same time, defendants 2 and 3 executed a kobala purporting to transfer their interests to a relation. The defence of defendants 2 and 3 was that they and Jadu were joint and that on Jadu's death they succeeded by survivorship to his interest in the property.

(2.) The sale by Jadu in favour of defendant 1 was said to be a benami transaction and it was alleged that after Jadu's death his wife took possession of his interest and remained in possession of it by way of maintenance until 1341. Defendant 1 denied that the sale to him was a benami sale and supported the case of the plaintiff mortgagee. The first Court held that the sale to defendant 1 and the sales by defendants 2 and 3 were benami and that the three brothers were joint. Consequently, the first Court held that defendant 1 had no power to execute the mortgage in favour of the plaintiff and that he alone was liable to refund the money borrowed. Against that decision there was an appeal by defendant 1 alone.

(3.) At the trial he sought to establish that the three brothers were separate and that the sale to him by Jadu was a real and not a benami transaction. This case has been accepted by the Court of Appeal below which consequently held that the mortgage was a good mortgage and awarded the plaintiff a decree for possession against defendants 2 and 3 with mesne profits.