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Sripat Rai and ors. Vs. Narbadeshwar Prasad NaraIn Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Case NumberFirst Appeal Nos. 137, 138 and 332 to 335 of 1943
Judge
Reported inAIR1950All384
ActsDebt Law; Uttar Pradesh Encumbered Estates Act, 1939 - Sections 14 and 45(1)
AppellantSripat Rai and ors.
RespondentNarbadeshwar Prasad NaraIn Singh
Appellant AdvocateN.R. Sharma, Adv.
Respondent AdvocateS.N. Verma and ;C.B. Sahai, Advs.
DispositionAppeal dismissed
Excerpt:
- .....4, united provinces encumbered estates act. application no. 10 of 1936 was filed by narbadeshwar prasad narain singh alias bachchu babu son of parmeshwari prasad and the other application no. 15 of 1936 was filed by chandreshwar prasad narain singh, dharmeshwar prasad narain singh and rameshwar prasad narain singh, all sons of ishwari prasad narain singh. ishwari prasad narain singh and parmeshwari prasad were brothers and were members of a joint hindu family. in the year 1922 ishwari prasad narain singh and narbadeshwar prasad executed three mortgages, parmeshwari prasad being dead. the first mortgage was dated 24th may 1922, and was for a sum of rs. 9,999-15 0 and it was executed in favour of inderdeo rai. first appeals nos. 332 and 333 of 1943 arise out of the claim put on the basis.....
Judgment:

Malik, C.J.

1. A preliminary objection has been taken to the hearing of these six appeals on the ground that the other creditors have not been impleaded and the appeals cannot proceed in their absence.

2. These six cases arise out of two applications under Section 4, United Provinces Encumbered Estates Act. Application No. 10 of 1936 was filed by Narbadeshwar Prasad Narain Singh alias Bachchu Babu son of Parmeshwari Prasad and the other application No. 15 of 1936 was filed by Chandreshwar Prasad Narain Singh, Dharmeshwar Prasad Narain Singh and Rameshwar Prasad Narain Singh, all sons of Ishwari Prasad Narain Singh. Ishwari Prasad Narain Singh and Parmeshwari Prasad were brothers and were members of a joint Hindu family. In the year 1922 Ishwari Prasad Narain Singh and Narbadeshwar Prasad executed three mortgages, Parmeshwari Prasad being dead. The first mortgage was dated 24th May 1922, and was for a sum of Rs. 9,999-15 0 and it was executed in favour of Inderdeo Rai. First Appeals NOS. 332 and 333 of 1943 arise out of the claim put on the basis of that mortgage. The other two mortgages were dated 30th May 1922, and both were executed by Ishwari Prasad Narain Singh and Narbadeshwar Prasad, one in favour of Sripat Narain Rai for a sum of Rs. 1,000 and the other in favour of the predecessors-in-interest of Mt. Sita Kuari for a sum of Rs. 8,999-15-0. First Appeals NOS. 137 and 138 of 1943 arise out of the claim put on the basis of the mortgage executed in favour of Sripat Narain Rai and First Appeals NOS. 334 and 335 of 1943 arise out of the claim on the basis of the mortgage executed in favour of the predecessors-in-interest of Mst. Sita Kuari. Though the landlords-applicants in their respective applications originally mentioned the three mortgages and the amounts due under them and showed the mortgagees as creditors, when the papers were sent to the Special Judge and the creditors put forward their claim under Section 9, U. P. Encumbered Estates Act, the landlords-applicants raised objections and pleaded that the mortgages were void. In case No. 10 of 1936, which was the application filed by Narbadeshwar Prasad Narain Singh, two objections were taken, firstly, that on the dates when the three mortgage deeds were executed Narbadeshwar was a minor and, secondly, that the mortgage deeds had not been duly registered and were therefore void. It may be mentioned that village Kathaunda in the district of Ballia was given in security by the mortgagors but the document was registered in Chhapra in the Province of Bihar and a small plot of land in village Salaur in Chhapra was included in the mortgage deed to give jurisdiction to the Sub-Registrar to register the document. After having mortgaged village Kathaunda, the relevant portion of the mortgage deed relating to the plot of land in village Salaur is as follows:

'. . . . and also in respect of 3 Dhurs of land, bearing cultivatory holding No. 9, situate in mauza Sillaur, pargana Chaubara, district Saran, tauzi No. 2034. . . . . . . . . . .'

In the other case No. 15 of 1936, filed by Chandreshwar Prasad Narain Singh and others, the same objection as to the validity of the three mortgage deeds on the ground of their not having been properly registered was taken.

3. The learned Special Judge held in favour of the objectors that the three mortgage deeds had not been duly registered and were void and was further of the opinion that on the dates when the three mortgage deeds were executed Narbadeshwar was a minor. On these findings the learned Special Judge refused to pass any decree under Section 14 in favour of the mortgagees. There were various other creditors in whose favour decrees under Section 14 were passed by the Special Judge. The mortgagees filed these six appeals and it was urged on their behalf by learned counsel that, even if the mortgage deeds were not duly registered and Narbadeshwar was a minor, their claim should have been allowed and decrees in favour of the mortgagees should have been passed under Section 14.

4. It was, however, pointed out by learned counsel for the respondents that the creditors-appellants not having impleaded the other creditors, by reason of the decision of a Full Bench of this Court in the Banaras Bank Limited v. Bhagwan Dass, 1946 A. L. J. 402: (A. I. R. (34) 1947 All. 18 F. B.), the appeals were incompetent. It cannot be doubted that the other creditors are vitally interested in the claims put forward on behalf of the appellants to the effect that a large amount of money is due to them under the three mortgage deeds executed by Narbadeshwar and Ishwari Prasad Narain Singh. Farther, there can be no doubt that the question whether these appellants are secured creditors would vitally affect the interest of the other unsecured and secured creditors. The principle of the Full Bench decision in the case mentioned above is, therefore, applicable.

5. Learned counsel for the appellants has relied on a decision of this Bench in Pancham Koer v. Ranbir Prasad : AIR1948All336 . It would appear from the judgment in that case that the facts of that case were entirely different. The claims of several creditors had been decreed under Section 14, U. P. Encumbered Estates Act. The landlord applicant filed an appeal against one of the creditors on the ground that his claim should not have been decreed. The other creditors had submitted to the decree and, if no appeal had been filed by the landlord-applicant, a rateable payment would have had to be made to all the creditors including the respondents. The result of the appeal by the landlord-applicant, as was pointed out by the Bench, could not adversely affect the other creditors and could only benefit them. The relevant portion of the judgment is as follows:

'In the Full Bench case a claim had been made under Section 11, Encumbered Estates Act that the property specified in the claim was not liable to attachment, sale or mortgage in satisfaction of the debts of the landlord-applicant. The point having been decided against the claimant he had filed the appeal, and Mr. Pathak has urged that if his appeal had been allowed and it had been held that the property was not liable to attachment sale or mortgage in satisfaction of the debts of the landlord-applicant, the interest of the other creditors would have materially suffered. In the ease before us, however, the appeal having been filed by the landlord-applicant, if the appeal is allowed, the other creditors would gain and their interest is not likely to be affected ...... We agree with his contention that it is not likely that the interest of the other creditors would materially suffer by our decision in this appeal and we cannot, therefore, dismiss the appeal on the ground that no effective decree can be passed in the absence of the other creditors.'

We are of the opinion that the decision of the Full Bench is fully applicable to the facts of this case and, as we are bound by the decision of the Full Bench, we must dismiss the appeal.

6. Learned counsel for the appellants has asked for time to implead the other creditors. These appeals have been pending in this Court from 1943. The decision of the Full Bench is dated 8th May 1946. We may mention that an application had been made in that case to implead the other creditors, but the Full Bench rejected it on the ground that by reason of lapse of time a valuable right had accrued in favour of the other creditors.

7. The appeals are, therefore, dismissed with costs.


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