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Ganga Narayan Dutta Vs. Indra Narayan Saha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in35Ind.Cas.49
AppellantGanga Narayan Dutta
Respondentindra Narayan Saha and ors.
Cases ReferredKatama Natchier v. Rajah of Shivaganga
Excerpt:
hindu law - mortgage by widow and the then reversioner--decree against executants, if binds estate--sale in execution,--auction-purchasers, title of, if defeasible by actual reversioners after death of judgment-debtors--fraud in securing decree, effect of. - .....that is set aside for good grounds, the present plaintiff cannot get behind it and maintain the present suit. for this reason i think that the appeal should be dismissed with costs.asutosh mookerjee, j.2. i agree that this appeal must be dismissed.3. the property in dispute belonged originally to one ram sankar roy who died in 1887. he left a widow brahmomoyi and a daughter's son ram gopal sen. on the 13th may 1896, brahmomoyi and ram gopal executed, in favour of one anant lal das, a mortgage of the land in suit to secure a loan of rs. 499. in 1602, the mortgagee sued the widow and her daughter's son to enforce the security and obtained the usual mortgage-decree. in execution of that decree, the property was sold by the court on the 6th june 1905 and was purchased by the shahas, now.....
Judgment:

Lancelot Sanderson, C.J.

1. In this case I think, this, appeal must be dismissed, inspite of the interesting argument which has been presented to us by the learned Vakil for the appellant, and the short ground is that there was a decree in the mortgage suit in which the defendants were not only the widow but also the then reversioner. The decree must, therefore, be taken to bind the whole estate. Under that decree a sale was held and a third party purchased the estate, and it seems to me that as long as that decree stands, and until that is set aside for good grounds, the present plaintiff cannot get behind it and maintain the present suit. For this reason I think that the appeal should be dismissed with costs.

Asutosh Mookerjee, J.

2. I agree that this appeal must be dismissed.

3. The property in dispute belonged originally to one Ram Sankar Roy who died in 1887. He left a widow Brahmomoyi and a daughter's son Ram Gopal Sen. On the 13th May 1896, Brahmomoyi and Ram Gopal executed, in favour of one Anant Lal Das, a mortgage of the land in suit to secure a loan of Rs. 499. In 1602, the mortgagee sued the widow and her daughter's son to enforce the security and obtained the usual mortgage-decree. In execution of that decree, the property was sold by the Court on the 6th June 1905 and was purchased by the Shahas, now defendants-respondents. The grandson died in 1906, and the widow died on the 21st July 1909. The plaintiff is one of five persons who upon the death of the widow succeeded to the estate of Ram Sankar Roy as reversionary heirs in their character of his sister's sons. On the 20th September 1909 he instituted the present suit to recover the property from the purchasers, on the allegation that there was no legal necessity for the loan and that the mortgage and sale took place under circumstances which do not make those transactions binding upon him as one of the actual reversioners. The Court of first instance decreed the suit. Upon appeal that decree was reversed by the District Judge, and a second appeal to this Court was dismissed by Mr. Justice Roy.

4. On the present appeal preferred under Clause 15 of the Letters Patent, it has been argued by the plaintiff that the case has not been examined in the Courts below from the proper point of view. There is some force in this contention and the reason is not far to seek. The case was heard by the District Judge, as also by Mr. Justice Roy, before the decisions of the Judicial Committee in Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674 : 42 C. 876 : 42 I.A. 64 : 17 M.L.T. 115 : 19 C.W.N. 370 : 13 A.L.J. 223 : 2 L.W. 219 : 21 C.L.J. 225 : 28 M.L.J. 565 : 17 Bom. L.R. 426 : (1915) M.W.N. 511 and Bijoy Gopal Mukerji v. Girindra Nath Muherji 23 Ind. Cas. 162 : 41 C. 793 : 18 C.W.N. 673 : 12 A.L.J. 711, 16 Bom. L.R. 425 : (1914) M.W.N. 430 : 19 C.L.J. 620 : 16 M.L.T. 68 : 27 M.L.J. 123 : 1 L.W. 533 and of the Full Bench in Deli Prosad Chondhry v. Golap Bhagat 19 Ind. Cas. 273 : 40 C. 721 : 17 C.W.N. 701 : 17 C.L.J. 499 as to the precise effect of an alienation by a Hindu widow with the concurrence of the then next reversioner. Prima facie, therefore, the appellant is entitled to claim a remand for re-consideration of the questions in controversy. But upon the admitted facts, I think, it is reasonably plain that the plaintiff cannot possibly succeed in this litigation and a remand would be of no avail to him.

5. The mortgage, as we have seen, was executed by the widow and the then next reversioner; the suit was instituted and the decree was obtained against them. Neither at the time of the execution of the mortgage nor at the date of the institution of the suit had the plaintiff any present interest in the property; he was then not even the immediate reversioner; he was only a reversioner in the second degree. He was not a party to the mortgage transaction, nor was he a necessary party to the mortgage suit. On the other hand, Ram Gopal Sen, the daughter's son of the original owner, and the then next reversioner, was joined as a party to the mortgage transaction and to the mortgage suit, with a view to bind the entire inheritance. We have, consequently, a decree made by a competent Court in the presence of the widow and the then next reversioner; the decree directed the sale of the entire inheritance; and at the sale, which was held by the Court, the respondents purchased the property. What then is the true position of the purchasers? In the first place, when a mortgagee from a Hindu widow seeks to obtain a decree which would bind not merely the qualified interest of the widow, but the entire inheritance itself, the then next reversioner is a proper party to the suit [Nugenderchunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R. (P.C.) 17 : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 92, Brij Bhookun Lall Awustee v. Mohadeo Dobey 17 W.R. 422; Mohima Chunder Roy Chowdhry v. Ram Kishore Acharjee Chowdhry 23 W.R. 174; Srinath Dass v. Hart Pada Mitter 3 C.W.N. 637; Bhagirathi Dass v. Baleswar Bagarti 19 Ind. Cas. 686 : 41 C. 69 : 17 C.W.N. 877 : 19 C.L.J. 155; Rameswar Mandal v. Provabati Debi 25 Ind. Cas. 84 : 20 C.L.J. 23 at p. 31 : 19 C.W.N. 313; Indra Kuar v. Lalta Prasad Singh 4 A. 532 : A.W.N. (1882) 133; Veerabadra Aiyar v. Marudaga Nachiar 8 Ind. Cas. 1072 : 34 M. 188 : 21 M.L.J. 320 : 9 M.L.T. 235 : (1910) M.W.N. 799; Lloyd v. Jhones (1803) 9 Ves. 37 at p. 57 : 7 R.R. 147 : 32 E.R. 514; Story onEquity Pleadings, Article 144; Daniell on Chancery Practice, Chapter III, Section 3.] In the second place, a reversioner so impleaded may well be deemed a party in a representative capacity [ Vankatanarayana Pillay v. Subbammal 29 Ind. Cas. 298 : 38 M. 406 : 21 C.L.J. 515 : 28 M.L.J. 535 : 17 M.L.T. 435 : 17 Bom. L.R. 468 19 C.W.N. 641 : 2 L.W. 596 : (1915) M.W.N. 555 : 42 I.A. 125] and a decree fairly made in his presence, so long as it stands, binds the inheritance, whether he or some one else ultimately becomes the actual reversioner when the succession opens out on the death of the widow (Jones on Mortgage, Section 1439). The title of the purchasers in this case can consequently be defeated by the plaintiff, only after the decree, which is the root of that title, has been successfully impeached for fraud, collusion or other like reason. Assume, that the plaintiff might possibly have attacked the decree on the ground of fraud, for instance, on the allegation that at the time when the mortgage was executed there was really no legal necessity for the loan, and yet, the widow and the immediate reversioner colluded to raise the money and to charge the inheritance so as to enable the reversioner to embark upon a speculation for his personal benefit. If this were established, the fact that the parties had gone through the form of a suit and a decree could not justly be held to prejudice the right of the actual reversioner. [Katama Natchier v. Rajah of Shivaganga 9 M.I.A. 539 at p. 604 : 2 W.R. (P.C.) 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843]. No such case of fraud, however, has been charged, much less proved and the mortgage and the decree thereon still stand unassailed; clearly so long as the decree stands, the plaintiff cannot successfully impeach the title of the defendants. In this view, the suit fails and has been rightly dismissed; consequently, the present appeal must be dismissed with costs.


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