1. This is a suit by Bhola Nath Khettry and Poran Chand Khettry, infants, by their mother and next friend against their father Kartick Kissen Das Khettry and some fifteen other defendants to contest the validity of certain mortgages made by their grandfather Radha Kissen Khettry and their father Kartick Kissen Das Khettry before the plaintiffs were born.
2. The plaint sets out in full detail the circumstances which have occurred since the date of the mortgages.
3. The facts are somewhat complicated, but I do not propose to discuss them at length, because it is admitted that the statements in the plaint are substantially correct. Two dates, however, should be added to those there given, viz., the dates of the births of the plaintiffs. Bhola Nath was born on the 11th October 1904 and Poran Chand on the 10th March 1906. The prayer of the plaint is, firstly, for a declaration that the plaintiffs are entitled jointly to a third share in the premises No. 6 Mullick. Street. Secondly, for partition of the said premises. Thirdly, to set aside the decree made in suit No. 214 of 1905 and stay of the sale directed by that decree. A number of issues were raised in the case, but so far as we are at present concerned the suit may be dealt with on what is really a preliminary question, whether the plaintiffs have any right to contest the mortgages or to go behind the decree, which has been passed in respect of them.
4. The parties are governed by the Mitakshara school of Hindu Law and the case must be considered on that basis.
5. It must be assumed for purposes of this decision that the mortgages both of Radha Kissen and Kartick Kissen were improperly made or that the money was raised by them for immoral purposes; for it is obvious, if the mortgages had been properly made, they would be good against the plaintiffs, even if they had been alive at those dates.
6. The cases, which were cited by Mr. S.R. Das for the plaintiffs, do not seem to me to bear upon the real point at issue in this case. The propositions of law, which he asserted, and which were based on the decisions in the following cases, viz., Suraj Bunsi Koer v. Sheo Prosad Singh (1878) L.R. 6 I.A. 88. Sadabart Prosad Sahu v. Fool bash Koer (1869) 3 B.L.R. (F.B.) 31 and Madho Parshad v. Mehrban Singh (1890) I.L.R. 18 Calc. 157 ; L.R. 17 I.A. 194 are well established, but really do not meet the point here. There is no dispute that a son on his birth becomes entitled to an interest in the joint family property existing at that date.
7. The real question here is what was the ancestral property, which was in existence at the date of the birth of the first plaintiff.
8. The law is definitely stated by Mr. Mayne in Section 342 of his work, which runs as follows:
Dispositions of property by a father can, of course, only be objected to by those who have a joint interest with him in the property either by joint acquisition, or by birth. Where the objection is based on the latter ground, it is necessary to show that such an interest vested in the objector at his birth or by his birth. Therefore, a son cannot object to alienations validly made by his father before he was born or begotten, because he could only by birth obtain an interest in property, which was then existing in his ancestor. Hence, if at the time of the alienation there had been no one in existence whose assent was necessary, or if those, who were then in existence, had consented, he could not afterwards object on the ground that there was no necessity for the transaction.
9. Turning to the facts of this case we find that the first mortgage was made on the 2nd October 1880. On that mortgage a suit was filed (being suit No. 332 of 1884) and in it a consent decree was passed on the 11th September 1884. That decree was the usual mortgage decree and contained a direction for sale of the property in case of non-payment. In 1887 Radha Kissen became insolvent and his estate vested in the Official Assignee. Between March 1894 and September 1895 no less than seven mortgages of this property were made by the first defendant Kartick Kissen Das Khettry.
10. It may be stated that Radha Kissen's mortgage purported to be of the whole property and Kartick Kissen's mortgages of a moiety.
11. On the 3rd September 1896, an order was obtained by the Receiver appointed in another suit for sale of the whole property in suit No. 332 of 1884. To that order Kartick was a consenting party and the Official Assignee, as representing Radha Kissen's interest in the estate, made no objection and must also be taken to have been a consenting party. At that date the Official Assignee and Kartick Kissen Das Khettry were the only two persons in existence, who had any right in this particular property and it appears to me|that that consent order bad the effect of a ratification, if it can be so called, of the mortgage of Radha Kissen by Kartick Kissen and of the mortgages of Kartick Kissen by Radha Kiseen or his representative the Official Assignee. That order still stands good and it is in pursuance of that order that the sale is now being asked for. It is true that in suit No. 214 of 1905, which was filed after the first plaintiff was born, a decree also by consent was taken on the 2nd August, 1905. It may be noticed that Radha Kissen had died some three days before that decree was passed. By that decree it was ordered that that suit should be regarded as supplemental to the suit of 1884 and that the sale ordered in the suit of 1884 should proceed.
12. It is this last decree, which the plaintiffs now seek to have set aside as against them. But it appears to me that it is immaterial whether this decree he set aside or not, for the order of the 3rd September 1896 is still standing and there can be no objection to the revival of that order (if indeed it need reviving) by an order made expressly in the 1884 suit. But in my opinion it is clear that there were complete transfers of this property both by Radha Kissen and Kartick Kissen, transfers it is true by way of mortgage and not by sale and therefore transfers of a qualified nature, but none the lest complete transfers. Whether such transfers would have been good as against Radha Kissen or as against Kartick Kissen of the moiety dealt with by each other it is not necessary to discuss, for in my opinion, as I have stated, the consent decree of 1896 amounted to a consent by either party to the transfers of the other. The result is that at the dates of the plaintiffs' births the ancestral property consisted not of an absolute estate in the premises No. 6 Mullick Street, but in the equity of redemption to that property. To a share in that equity of redemption it may be that the plaintiffs became entitled on their respective births and as such they may be entitled to redeem the properties. That there was some such idea on the plaintiffs' part is shewn by the application made to me by their counsel at the commencement of the hearing for leave to amend the plaint by the insertion of a prayer for redemption. That I refused, because it by no means follows that there would be any necessity for a suit for redemption, and also because it would be a prayer inconsistent with the present claim of the plaintiffs that the mortgages are invalid as against them. Bat so far as the setting aside of the mortgages or of the decree of this Court, which has been passed upon them, is concerned, I am of opinion that the plaintiffs have no case and I think that on this ground alone their suit must necessarily fail.
13. I do not consider it necessary to deal with the authorities quoted at great length, because the law on this point at least seems clear and, if this be correct, those cases have really no bearing upon the point.
14. This is a case of a complete transfer before the plaintiffs' birth, and not, as it was in most of the cases cited, a case of a debt or of a contingent contract. I hold, therefore, that they have no right in the suit to the relief which they claim and the suit must therefore be dismissed with costs.