SURAJ BUNSI KOER Vs. SHEO PROSHAD SINGH

JUDGEMENT

(1.) THE question to be determined on this appeal is, what are the respective rights of the infant Plaintiffs and Appellants on the one hand, and of the Respondents claiming as purchasers at an execution sale on the other, in an eight anna share of mouzah Bissum-hhurpore, a village situate in the district of Tirhoot. The material facts out of which this question arises are the following:

(2.) BABOO Adit Sahai, the father of the Plaintiff, became on the death of his father Nursing Sahai in 1862, or by virtue of a subsequent partition effected with a coparcener, the sole owner of certain ancestral immovable property in Tirhoot, including eight annas of mouzah Bissumbhurpore. It has been assumed throughout the proceedings that the case was governed by the law of the Mitakshara; that, or the Mithila law, which is the same in respect of the questions raised in the suit, being the general law of the district. He had afterwards two sons, who are the infant Plaintiffs. Of these, Ram Sahai was born in 1862, and Bhuggobutti in October, 1869. These dates were disputed, but have, in their Lordships' opinion, been conclusively established in the suit. On the 21st of January, 1870, Adit Sahai executed, in favour of one Bolaki Chowdry, a Defendant in the suit, though not a Respondent on this appeal, an instrument in the form of a bond and Bengali mortgage, whereby he bound himself to repay the sum of Rs. 13,000, which he had borrowed from Bolaki, with interest at the rate of 15 per cent. per annum, and pledged as security for such repayment the whole and entire proprietary shares owned and possessed by him in mouzah Surakdeeha (also part of the ancestral estate) and mouzah Bissumbhurpore. This bond does not expressly state any reason for incurring the debt, but it refers to a negotiation for a loan of a smaller sum from another party, which had fallen through, and says that that sum was not then sufficient to meet the payments of the obligor's several creditors. It was registered on the 21st of January, 1870.

(3.) ON the 21st of March, 1873, Adit Sahai presented a petition to the Court. This, after stating that execution having been issued in the usual way, the mortgaged property had been ordered to be put up for sale; that on production of Rs. 3,000 out of the decretal amount the Court had granted time for one month, and postponed the sale to the 7th of April; that the Petitioner was very ill, and would be ruined by a forced sale, prayed the Court to grant a further postponement of the sale, and, under the provisions of the 243rd section of the Act VIII. of 1869, to appoint a surbarakur of the mouzahs in question, and certain other portions of the ancestral estate, From the order made on this petition it appears that the attachment of Bissumbhurpore had for some reason been already quashed, and that a new attachment was about to be made; and it was accordingly directed that in the meantime the petition should stand over. That second attachment must have been made, for subsequent proceedings in execution were had, in the course of which Binda Koer, the mother of Adit Sahai, claimed to be entitled in her own right to one anna of mouzah Bissumbhurpore, and to some part of the other property taken in execution. Her latter claim was allowed, but that affecting Bissumbhurpore was rejected; and the execution sale stood fixed for the 23rd of May, 1873, when, on the 19th of that month Adit Sahai died. The proceedings against Adit Sahai were thereupon revived in the usual way against his two sons as his heirs, and the 28th of July, 1873, was fixed as the day of the sale of the property liable to the execution. On the 14th of that month, however, Mussumat Sooraj Bunsi Koer, as the mother and guardian of the infant Appellants, filed a petition of objections for the protection of their interests as the sons of, and, therefore, under the Mitakshara law, the co-sharers with, their father in his lifetime in the property; and the order passed on that petition was in effect that the objections could not be heard and decided in the execution department, but that if the Petitioners had any interest in the property attached apart from and other than what their late father possessed, they could obtain their remedy by bringing a regular suit. The execution accordingly proceeded, the sale took place on the 28th of July, and the lot described as " the eight anna share of the judgment debtor in mouzah Bissumbhurpore, part of the mortgaged property as per inventory of the decree-holder " was purchased by the Respondents for Rs. 6600. The sale proceeding was ordered to be duly kept with the record, Whether the usual certificate was afterwards issued to the purchasers, or in what terms, if issued, it was expressed, does not clearly appear on the record; but it is certain that they had not been put into possession on the 27th of August, 1873, when the present suit was commenced.