SATRUHAN SINGH Vs. COLLECTOR OF GORAKHPUR

JUDGEMENT

(1.) The plaintiffs are the appellants before us. They are the sons of Ganesh Pratap Narain Singh who was defendant 13 in the suit out of which this appeal arises. The plaintiffs alleged that their father had executed one mortgage on 24 May 1927 in favour of Pirthi Pal Tiwari, defendant 12, hypothecating some property at Basti and that the said mortgage was invalid inasmuch as it was a mortgage of ancestral property without legal necessity. They then alleged that their father had executed another mortgage on 1 June 1933 in favour of defendant 11 Rikh Prasad Dube again hypothecating some Basti property which mortgage was also invalid inasmuch as the property mortgaged was ancestral property and the mortgage was without any legal necessity. They attacked another transaction, namely the mortgage of 4 October 1910. This mortgage was in favour of Mahadeo Prasad and some Gorakhpur property was mortgaged thereunder. The property was alleged to be ancestral property and the mortgage was said to be without legal necessity. This mortgage was the subject of suit No. 460 of 1929 and a decree was obtained on the basis of the mortgage on 12 June 1930. The decree-holders are represented in the present suit by defendants 1 to 10-B. The property of defendants 1 to 10 was under the Court of Wards, and defendant 10-A was the Manager of the Court of Wards, Gorakhpur, and defendant 10-B was the Collector of Gorakhpur. It is not necessary to say anything about the defendants third party who seem to have been impleaded on the allegation that they were in collusion with the defendants first party, namely the persons whose property was under the Court of Wards.

(2.) Several defences were taken by the various defendants on the merits of the case and it was pleaded that the three mortgages were for legal necessity, that the property was not ancestral and that a valid notice was not served under Section 54, Court of Wards Act, on the Collector of Gorakhpur. There was one other plea taken by the Collector of Gorakhpur and it was to the effect that the Basti Court, where the suit was instituted, had no jurisdiction so far as the relief in connexion with the decree in Suit No. 460 of 1929 was concerned inasmuch as the property affected by the decree was at Gorakhpur. The trial Court dismissed the plaintiffs suit so far as the first mortgage, namely the mortgage of 24 May 1927 was concerned. It decreed the suit so far as the mortgage of 1 June 1933 and the decree dated 12 June 1930 were concerned. The plaintiffs did not appeal with respect to that portion of the claim which was dismissed nor did the defendants interested in the mortgage of 1 June 1933 file any appeal before the lower Appellate Court but the Collector of Gorakhpur impugned the decree of the trial Court in connexion with the mortgage of 4 October 1910 and the decree in Suit No. 460 of 1929 passed on that mortgage.

(3.) The lower Appellate Court decided all questions of fact against the Collector of Gorakhpur, but held in his favour so far as the legal plea of jurisdiction was concerned and deciding that plea in favour of the Collector of Gorakhpur dismissed the plaintiffs suit so far as the relief in connexion with the decree in Suit No. 460 of 1929 was concerned. The plaintiffs have come in second appeal to this Court and their contention is that the view of law taken by the lower Appellate Court is unsound and that in any event, the plaintiffs should have been permitted to abandon that part of the claim. It is also said that the decree of the trial Court should not have been varied because the merits were found both by the trial Court and by the lower Appellate Court to lie with the plaintiffs, and Section 99, Civil P.C., says that: No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.