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Lalsa Rai and ors. Vs. Udit Rai and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1924All149; 75Ind.Cas.114
AppellantLalsa Rai and ors.
RespondentUdit Rai and anr.
Excerpt:
civil procedure code (act v of 1908), section 2(11) - 'legal representative,' definition of, scope of--decree against intermeddler, whether binding on real heir. - .....set. the defendant first set brought a suit for sale on his mortgage and impleaded as defendant musammat bhagwanta, the widow of a pre-deceased son of ugrah rai who was found to be in possession of the property. the matter was compromised between the two sets of defendants and the mortgagee decree-holder has now put up his decree in execution and asked for sale of the property. the plaintiffs alleged (i) that this decree was not binding on them as they being the next reversioners to the estate of ugrah rai were the owners of the property and were not made a party to the decree, and (2) that under the compromise decree the mortgagee applied for sale of more property than was mortgaged to him. they, therefore, sued for a declaration, that they were the reversioners and as such owners of.....
Judgment:

Gokul Prasad, J.

1. This is a plaintiffs' appeal arising out of a suit brought under the following circumstances. It appears that one Ugrah Rai was the owner of certain property. He mortgaged it to the defendant first set. The defendant first set brought a suit for sale on his mortgage and impleaded as defendant Musammat Bhagwanta, the widow of a pre-deceased son of Ugrah Rai who was found to be in possession of the property. The matter was compromised between the two sets of defendants and the mortgagee decree-holder has now put up his decree in execution and asked for sale of the property. The plaintiffs alleged (i) that this decree was not binding on them as they being the next reversioners to the estate of Ugrah Rai were the owners of the property and were not made a party to the decree, and (2) that under the compromise decree the mortgagee applied for sale of more property than was mortgaged to him. They, therefore, sued for a declaration, that they were the reversioners and as such owners of the property left by Ugra Rai and that the defendant No. 1, the mortgagee, has no right to execute the decree he obtained against the defendant second set, against the property of Ugrah Rai. The defence of the mortgagee was (1) that the plaintiffs were not the reversioners to the estate of Ugrah Rai; (2) that he was the mortgagee under a mortgage by Ugrah Rai and wanted his money, and (3) that Ugrah Rai having died more than twelve years ago the defendant No. 2 who had been in adverse proprietary possession had acquired a full title to the property and was competent to enter into the compromise.

2. The First Court came to the conclusion that the plaintiffs were the heirs of Ugrah Rai and that Musammat Bhagwanta had not preferred her title by adverse possession because she had not been in possession for twelve years before the plaintiff got a decree declaring their title against her. It has found that the decree obtained by the mortgagee on a compromise with Musammat Bhagwanta was not a fraudulent and collusive decree. It further found that the mortgagee should have obtained a decree against the plaintiffs who were the rightful owners of the property, and, therefore, the plaintiffs were not bound by the decree and the property in suit was not liable to sale in execution thereof. On these findings it decreed the plaintiff's suit. The defendant mortgagee went up in appeal and the learned Judge of the lower Appellate Court has decreed the appeal and dismissed the plaintiff's suit. He has come to the conclusion in accordance with the Court of first instance that the plaintiffs have proved that they are the next heirs of Ugrah Rai and that Musammat Bhagwanta was not the heir of Ugrah Rai. He has also found that Musammat Bhagwanta was in possession for 8 years only when the plaintiffs sued her and obtained a decree for Ugrah Rai's property against her. He also agreed with the Munsif in finding that the decree obtained by the mortgagee against Musammat Bhagwanta for sale of the property was not a fraudulent and collusive decree, but be says that Musammat Bhagwanta was the legal representative of Ugrah Rai and intermeddled with his estate (see Section 2, Clause (11) of the Code of Civil Procedure) and, therefore, by some process of reasoning be comes to the conclusion that the decree being against the legal representative of Ugrah Rai was binding on the plaintiffs. It is quite true that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled, but I do not see any principle of law which makes him the representative of the deceased so far as the succession to the property of the deceased is concerned. The definition of 'legal representative,' in the Code of Civil Procedure is only for the purposes of procedure in instituting and defending suits. Any definition for the purposes of adjective law cannot alter the rule of substantive law and it is not easy to understand how the mere fact that an itermeddler is joined as a party to the suit for recovery of possession can make a decree in that suit in any way binding on the real heir who is not a party to that suit and who later on gets a decree against the intermeddler declaring his superior right. I see no reason in law or justice under which the present plaintiffs can be held to be bound by the compromise decree entered into between the mortgagee and Musammat Bhagwanta Kunwar. That decree could in no sense be binding on the plaintiffs who have already got a decree declaring their superior title as against Musammat Bhagwanta. On the findings arrived at by the lower Appellate Court the plaintiffs' claim should have been decreed and the judgment of the Court of first instance should not have been interfered with. I, therefore, allow the appeal, set aside the decree of the lower Appellate, Court and restore that of the Munsif with costs in all Courts including in this Court fees on the higher scale.


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