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Ganga Prasad Vs. Mt. Hardei and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1932All32
AppellantGanga Prasad
RespondentMt. Hardei and ors.
Excerpt:
- - having begri unsuccessful in the mutation department banwari lal instituted the suit out of which this appeal has arisen for a declaration of title to the property and, in the alternative, for recovery of possession......in the mutation department and in 1926 the mutation court decided in favour of the appellant ganga prasad, wbo claims to be related to mt. gobindi through gobindi's sister. having begri unsuccessful in the mutation department banwari lal instituted the suit out of which this appeal has arisen for a declaration of title to the property and, in the alternative, for recovery of possession. as already stated, his case was that his son hira lal was the real purchaser of the property.3. ganga prasad defended the suit. the chief ground was that section 66, civil p.c. prohibited a suit for a declaration that the certified purchaser was not the real purchaser. banwari lai's-suit was accordingly dismissed. but in view of the fact that suraj prasad paid the sum of rs. 450 and ganga prasad was.....
Judgment:

Mukerji, J.

1. The facts of the case briefly are these: In 1900 there was an auction sale of a certain property and it was purchased in the name of a lady, Mt. Gobindi. The property was subject to a usufructuary mortgage for the sum of Rs. 450, so that what was sold was the mortgagor's right in the property. The purchaser did not get possession because the possession was with the mortgagee, Mir Imdad All. The respondents' father Banwari Lal claims that the real purchaser was Hira Lal, his son. Gobindi was a sister to Hira Lai's wife and was living with Hira Lai. Gobindi's name continued in the village papers till 1911, about which time, it appears, Gobindi died. Hira Lai's son Suraj Prasad instituted a suit for possession on redemption of the property-and was successful in 1916, when hejpaid the sum of Rs. 450 and redeemed the property and took possession of it.

2. After the death of Suraj Prasad his son Hanuman Prasad succeeded to his property. He however died shortly after and Mt. Jaikali, his mother, succeeded to the property. On the death of Mt. Jaikali, Banwari Lal, as the next heir of Hanuman Prasad, claimed the property. There was a tussle in the Mutation Department and in 1926 the mutation Court decided in favour of the appellant Ganga Prasad, wbo claims to be related to Mt. Gobindi through Gobindi's sister. Having begri unsuccessful in the mutation department Banwari Lal instituted the suit out of which this appeal has arisen for a declaration of title to the property and, in the alternative, for recovery of possession. As already stated, his case was that his son Hira Lal was the real purchaser of the property.

3. Ganga Prasad defended the suit. The chief ground was that Section 66, Civil P.C. prohibited a suit for a declaration that the certified purchaser was not the real purchaser. Banwari Lai's-suit was accordingly dismissed. But in view of the fact that Suraj Prasad paid the sum of Rs. 450 and Ganga Prasad was going to get the benefit of that money, the lower appellate Court granted a simple money decree against Ganga Prasad and in favour, of Banwari Lai. Banwari Lal died pending the appeal in the Court below and his daughters were substituted in his I place. The daughters of Banwari Lal are the respondents, before us.

4. It has been contended on behalf of the learned Counsel for Ganga Prasad that the lower Court should not have made a simple money decree against him. We think that this contentions is right. There is no rule of law by which a personal decree could be made against Ganga Prasad. On the other hand it is clear that when Suraj Prasad redeemed the mortgage ha redeemed it on the strength of a bible on which he ralied, namely, purchase by his father. It is true that the respondents have not bean able to make cut; a title in Suraj Prasad or Hira Lal. Bat this was on account of a technical rule of law. Nonetheless the redemption suit was a bona fide suit and the benefit of the redemption goes to Ganga Prasad. In the circumstances there is ample authority that Suraj Prasad or hia successor-in-title is entitled to the benefit of the security which Mr. Imdad Ali possessed: vide Kesri Mai v. Mubarak Hussain [1911] 10 I.c. I.C. 556.

5. It is contended that the respondents did not appeal against the decree that was made in their favour and we shall really be granting a larger decree than was granted by the Court below to the respondents. We do not think that our powers are limited to the case of an appeal being filed by the respondents, We refer to the provision of law contained in Rule 33, Order 41, Civil P.C. In our opinion it gives us ample power to substitute for the decree granted in favour of the respondents such decree as ought to have been granted in their favour, and the exercise of our power is not confined to the case of an appeal by the respondents.

6. In the result we modify the decree of the Court below by granting a decree for possession over the property in suit, the possession being that of a mortgagee in lieu of the sum of Rs. 450. The respondents will be entitled to keep possession over the property in suit till the defendant or a successor-in-interest of his pays them the sum of Rs. 150 and redeems the property. Having regard to the peculiar facts of the case, and having regard to the fact that the claim was valued at Rs. 1,000 and it has succeeded to the extent of Rs. 450, we direct that the parties shall pay their own costs of this appeal.


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