Skip to content


Sri Iswar Radha Kanta Jew Thakur and ors. Vs. Gopinath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 1942 of 1956
Judge
Reported inAIR1960Cal741
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 4; ;Hindu Law
AppellantSri Iswar Radha Kanta Jew Thakur and ors.
RespondentGopinath Das and ors.
Appellant AdvocateSamrit Das, Adv.
Respondent AdvocateB.K. Ghose, ;Sanker Ghose and ;B.C. Dutt, Advs.
Cases Referred and Sushama Roy v. Atul Krishna Roy
Excerpt:
- p.c. mallick, j. 1. this is a suit to challenge the alienation of a defaulter property. the debutter was created by one mokshadamoyee desi by two arpannamas. she appointed herself as the first shebait and certain named persons as subsequent shebaits. thereafter, the shebaity was to devolve on the nephew of the settlor one sital chandra das and his heirs. the shebaity devolved on sital sometime in or about 1944, during the life time of sital's shebaity, the debutter property was sold. sital died in or about february 1956. his only daughter molina hazra as sital's heir became the next shebait. this suit has been instituted by her for self and as the next friend and shebait of the deity. the parties impleaded are a number of persons who dealt with the debutter property. 2. the plaint sets.....
Judgment:

P.C. Mallick, J.

1. This is a suit to challenge the alienation of a defaulter property. The debutter was created by one Mokshadamoyee Desi by two Arpannamas. She appointed herself as the first shebait and certain named persons as subsequent shebaits. Thereafter, the shebaity was to devolve on the nephew of the settlor one Sital Chandra Das and his heirs. The shebaity devolved on Sital sometime in or about 1944, During the life time of Sital's shebaity, the debutter property was sold. Sital died in or about February 1956. His only daughter Molina Hazra as Sital's heir became the next shebait. This suit has been instituted by her for self and as the next friend and shebait of the deity. The parties impleaded are a number of persons who dealt with the debutter property.

2. The plaint sets out all facts leading ultimately to the sale of debutter property. Sital as shebait created a lease in favour of the defendant Gopinath Das on a monthly rent ot Rs. 5/-. The lease records the payment of Rs. 2,500/- as selami. Gopinath subsequently assigned the lease to the defendant Nemai Chand. The defendant Rajen Sen purporting to act as the next friend of the deity instituted a suit against Sital for framing a scheme of management of the debutter property and of carrying on the Debseva. In that suit a consent decree was passed whereby a trustee was appointed with authority to create a mortgage of the debutter property. The defendant Phanilal as such trustee created a mortgage in favour of the defendant Nimai Chand. Ultimately in a suit inter alia to enforce the mortgage, the property was sold and the defendant Upendra purchased the premises. It is alleged in the plaint that the lease and the mortgage was fraudulent and Without consideration and the deity was not benefited either by the lease or by the mortgage, that the suit instituted by Rajendra wag fraudulent, that Rajendra was not entitled to act as the next friend of the deity and that the decree was not binding on the deity, that the suit originally instituted by the Calcutta Corporation to enforce a statutory charge in which the defendant Nimai Chand was subsequently transposed as a plaintiff, was also fraudulent, that the deity was not properly represented and its interest not properly protected in this suit and that as such the decree was not binding on the deity. The defendant Upendra is alleged to have purchased with full knowledge of the above facts, A number of declarations has been claimed as to the invalidity of each of the above acts and there are prayers for setting them aside. There are prayers for injunctions and damages as well.

3. The defendant Rajen Sen did not file any written statement. The defendant Phani Lal and Nemai filed a joint written statement and the defendant Gopinath and Upendra filed separately their own written statements. Gopinath in his written statement has denied all allegations of fraud and conspiracy alleged against him. He has further denied having obtained any lease from Sital or effected any assignment of the said lease in favour of the defendant Nemai. He denies that the signature in the lease and assignment are his signature. He has further denied to have paid any consideration for the lease or to have received any consideration for effecting the assignment. In paragraph 23 it is pleaded that Gopinath 'never had anything to do with the subject matter of the suit and that he has been unnecessarily brought in this suit with ulterior motive.'

4. Upendra in his written statement denied all allegations of fraud and conspiracy levelled against him. He denies all allegations of fraud and the knowledge of the fraud alleged to have been perpetrated by the other parties. He pleads that he is a bona fide purchaser for valuable consideration without notice of any defect in title. He purchased the property relying on the decrees and orders of this Court. It is pleaded that the suit is barred by res judicata, waiver, estoppel and principles analogous thereto. It is further pleaded that the suit is bad for non-joinder as well as mis-joinder of parties and cause of action.

5. In the written statement jointly filed by the defendants Phani Lal and Nemai Chand, all the allegations of fraud and conspiracy Have been denied. The lease executed by Sital has been alleged to be for legal necessity and also for the benefit of the deity. So also it is pleaded that the suit was properly instituted by the defendant Rajendra as the next friend of the deity and that the decree passed in the suit was a valid decree binding on the deity. So also the mortgage was valid and binding, the deity having been benefited by it. There was nothing improper or illegal about the mortgage suit and everything was done in the suit according to law. The point as to the title sought to be raised in this suit was raised in the proceedings as to title in the mortgage suit and cannot be raised over again. The plea of res judicata has been taken. The plaintiff Molina is charged with full knowledge of all facts and proceedings and all the decrees and orders in the various suits were alleged to be within her knowledge. It is contended that the suit is bad for non-joinder of the guardian-ad-litem of the deity in the mortgage suit. Plea of limitation has also been taken.

6. At the trial the plaintiff Molina tendered her own evidence and the evidence of Gokul Chandra Banerjee the priest, and of Amiya Krishna Dutt who acted as the next friend of the deity in the mortgage suit. The defendant Gopinath tendered his own evidence. Phani Lal tendered his own evidence as also the evidence of Rajen Sen. The defendant Upendra tendered his own evidence and the evidence of his attorney Birendra Nath Ghose. The defendant Nimai Chand did not enter the witness box. Besides this oral evidence, a large number of documents have been tendered including a considerable amount of court proceedings.

7. The evidence tendered in this case discloses a story which leaves a very unpleasant taste in the mouth of any one who is compelled to hear it. The plaintiff's case is that Phanilal a very clever and unscruplous attorney of this Court is the central figure who inspired and is responsible for the various fraudulent acts that ultimately led to the sale of debutter property. The first act is the lease in favour of the defendant Gopinath. The lease did not contain any recital as to legal necessity. There is no recital either that the lease was for the benefit of the deity. However dishonest and untruthful the parties involved were, they did not add to their sin by inserting a false recital in the lease that it was for legal necessity or for the benefit of the deity. Lessor was Sital the shebait and the lessee the defendant Gopinath. Sital is dead and Gopinath in his written statement would not touch the lease even with a pair of tongs. He repudiated the lease and denies to have had anything to do with it. In evidence he condescended to say that the signature might be his but otherwise he had nothing to do with it. He did not pay Rs. 2,500/- or any other sum on account of the lease. The brunt of supporting the lease fell on Phani Lal.

8. Phani Lal in his evidence attempted to take upon himself the least responsibility in the transaction. He stated in-chief that he came into the picture only to attest the document on the date of the execution i.e., March 14, 1945. The first entry in his Day Book tendered in respect to the transaction is on March 14, 1945 being the date of the execution of the lease. That is the impression he sought to convey to the Court. But his own witness Rajen Sen stated that Phani Lal was acting as adviser long prior thereto. He was doing everything to defend Sital in the police court and that was sometime before March 14, 1945. He was carrying on negotiation for the lease. The title deeds were made over to him at least four or five days before March 14, 1945 and that he paid the expenses of the criminal case in the police court a fortnight before the lease. This payment of police court costs and expenses is corroborated by Phani Lal himself. I accept the evidence of Rajen Sen to the effect that Phani Lal came into the picture carried on negotiation in the matter long before the date of the lease, that he was advancing money to meet the expenses of the criminal case in the police court, that the title deeds were kept in deposit with him prior to the date of the lease, and that Phanilal was not merely an attesting witness.

9. The memo of consideration in the Indenture of lease indicates that Rs. 2,500/- was paid in cash as selami for the lease. Phani Lal stated in his evidence that only Rs. 800/- was paid to him, the balance was to be retained by the lessee's attorney S. N. Chunder for payment to Satyendra Nath Sinha who prosecuted Sital for cheating. Prior to the lease in favour of Gopinath, Sital granted a lease to Satyendra Nath Sinha, suppressing the fact that it was a debutter property. Satyen thereupon prosecuted Sital for cheating and there was a conviction and Sital was sentenced to a term of imprisonment. There was at the time an appeal pending. According to Phani Lal the balance of Rs. 1700/-was retained for payment to Satyen Sinha. It was arranged that Sital would register the lease, on Satyen Sinha giving an undertaking to withdraw that criminal case. The sum of Rs. 800/- paid to Phani Lal would not be paid to Sital until he vacated the premises occupied by him. In the correspondence that passed between Phani Lal and S. N. Chunder, the arrangement stated above was denied by Satyen Chunder and the criminal case was not withdrawn. According to Phani Lal the sum of Rs. 800/- paid to him was spent partly in payment of the tees to the High Court Advocate Radhika Guha, in payment of Rs. 500/- to Satyen Sinha and the balance to meet the cost of the criminal case in the Police Court amounting to Rs. 200/-. The criminal case in the Police Court, however, terminated by conviction long before March 14, 1945 when Phanilal came into the picture, if his story is to be accepted. According to Phanilal's own case, he was not to pay the money to Sital, before Sital vacated the premises and Sital never vacated the premises. Lastly, according to Phanilal, he was asked by Sital to return back the sum of Rs. 800/- and repudiate the lease inasmuch as Gopinath did not give the undertaking to withdraw the criminal case and in fact the case was not withdrawn. Having regard to these facts, it is impossible to hold that the memo of consideration appearing in the lease proves the payment of Rs. 2,500/- in cash as selami. Apart from Paanilal's own evidence that Rs. 800/- was paid by S. N. Chunder, and his Day Book entries, there is no evidence of payment of consideration. The most important evidence on this point is the evidence of Gopinath the lessee who is supposed to have paid the money. Gopinath's evidence is that he made no payment whatsoever. I accept this evidence of Gopinath. If this evidence is accepted, it must be held that there was no payment of selami. I am not called upon to speculate as to whether this was a benami lease of anybody other than Gopinath and whether the real lessee might have paid the selami. No case of benami has been made either in pleading or in evidence. I hold that no payment of consideration is proved by dependable evidence. I further hold that Sital was persuaded to execute the lease so that the criminal case against him may be stifled. It was an extremely shady transaction, the responsibility for which must fall fairly and squarely on two attorneys of this court -- Satyen Chunder who is now dead and Phanilal Mullick. Sital was a needy fool. He was as much a victim as the deity itself. Rajen Sen was on the same intellectual level as Sital. He was used by Phanilal as his tool. Rajen according to evidence was Phanilal's tenant and I think acted as Phanilal's tout in procuring clients. Gopinath must share the responsibility of being a party to a dishonest transaction even if he did nothing more than lend his name.

10. It appears that the lessee did not take possession of the demised premises and Sital and his daughter continued to be in possession of the debutter property. By a deed of assignment Gopinath purported to have assigned the lease to one Nimai Chand Dutt on October 11, 1945, that is, about 7 months after the lease. The deed of assignment recites that in consideration of the payment of Rs. 2,500/- in cash by the assignee the assignment is being effected. Gopinath Pal was represented by his attorney Santosh, Kumar Pal and Nimai) by Phanilal. The point to be noted in respect to this transaction is that the assignee agreed to accept the assignment and pay the full consideration of Rs. 2,500/-, even though the assignor did not and was not in a position to give possession and a suit was pending in which the validity of the lease is questioned. This is somewhat surprising. In evidence Phanilal admits that there was a further inducement to Nimai Nimai was promised that the sum to be advanced by him would be secured by a mortgage of the demised premises later, As in the case of the lease, so in this case of assignment, Gopinath in the written statement repudiated the transaction, but at the trial admitted that the signature in the document might be his. He, however, stoutly denied having received any consideration. Nimai did not give evidence nor has any attesting witness been examined except Phanilal. I accept the evidence of Gopinath that he did not receive the consideration as stated in the document. Nimai does not state on oath that he paid the consideration, Nimai does not appear to have ever got possession, either physical or constructive. Nobody other than Phanilal supports this transaction in evidence, Nimai does not come to the box. I agree with Dr. Das, learned counsel for the plaintiff, that both the lease and the assignment are extremely shady transactions and Phanilal's responsibility in bringing about these two transactions has been established beyond all controversy. I further agree with Dr. Das that payment of consideration has not been proved and that the deity has not in any way been benefited either by the lease or by the assignment.

11. The next event of importance is the suit No. 980 of 1945 instituted by the defendant Rajen Sen on June 26, 1945 as the next friend of the deity. In the affidavit of fitness filed along with the plaint Rajen bases his claim to represent the deity as next friend on the ground that he is meeting the expenses of Dev Seva and looking after and managing the daily worship. The only defendant impleaded is Sital Chandra Das. The suit is for administration of the debutter estate and for framing a scheme, if necessary. In paragraph 7 of the plaint it is pleaded that the defendant Sital was guilty of gross misconduct, mismanagement and breach of duty in the administration of the trust property. The various leases executed by Sital including the one in favour of Gopinath have been cited as acts of misconduct and, mismanagement. In paragraph 11 it is pleaded that the leases were not for legal necessity and that they were not for the benefit of the deity. The plaint was drafted by Mr. Subimal Roy, one of the most eminent counsel of this Court. On April 10, 1946, an application was affirmed by the next friend for sanctioning a scheme. The consent of Sital is endorsed on the petition. The petition is also consented to by Nimaichand Dutt, who is not a party to the suit but has obtained an assignment of the lease from Gopinath in the meantime and who, it is alleged in paragraph 14 of the petition is willing to surrender the lease provided he is paid Rs. 2500/- in full settlement. It is alleged in paragraph 16 that if a mortgage is effected for raising a loan of Rs. 4000/-, then the scheme can be given effect to and that the scheme will be beneficial to the debutter estate. The sum to be so raised would be applied in payment of Rs. 2500/- to Nimai Chand Dutt for obtaining the surrender of the lease, costs to the solicitors and Rs. 750/- for repairs of the debutter property. The scheme is set out in paragraph 17 of the petition. In paragraphs 18 and 19 of the petition the estimated income is given at Rs. 115/- and expenditure Rs. 65/-, leaving a clear margin of Rs. 50/- per month with which the mortgage can be liquidated in 5 or 6 years' time. On the basis of this petition, a consent decree was passed on May 15, 1946 and the Court granted leave to the next friend to settle the suit on the said terms. Usual certificate was given that the settlement was for the benefit of the deity.

12. In evidence it transpires that Sital was in jail on March 27, 1945 and came out of jail on May 18, 1945. On April 5, 1945, when Sital was still in, jail, Phanilal went to Mr. Subirnal Roy and instructed him to draw the plaint. Rajen in his evidences stated that at the request of Sital he instructed Phanilal to institute a suit against Gopinath to get rid of the lease. Rajen Sen seems to think even how that the suit was to that effect against Gopinath though the sole defendant was Sital in fact. After Sital came out of the jail, Sital himself looked after the litigation with the assistance of Phanilal. It follows, according to this evidence, that Sital was prosecuting the suit against himself. Phanilal was advised expressly by Mr. Subimal Roy not to act as the plaintiff's solicitor and in fact D. Roy's name appears as the solicitor on record. This D. Roy sits with Phanilal in the same room having common establishment. It was suggested to Phanilal in cross-examination that D. Roy only lent his name and that Phanilal was acting as the attorney for the plaintiff. In this suit Mr. S. K. Sengupta, a member of the Bar, was appointed Receiver. Rents, however, were realised even during the period by Phanilal and not by Mr. Sengupta. It cannot, therefore, be said that Phanilal was out of the matter and this fact lends strong support to the suggestion of Dr. Das that Phanilal was acting as attorney and D. Roy merely lent his name. D. Roy was not called to depose that he acted as attorney and was not merely a name lender. It is beyond doubt that in the matter of the suit Phanilal was doing everything even though he was not the attorney on record. That the suit was a collusiva suit is beyond any doubt. That the whole object of the suit was to get the sanction of the court to raise a loan on a mortgage in favour of Nimaichand is equally clear. I am certain in my mind that Mr. Sengupta was made first the Receiver and then the trustee without his consent. The real person pulling, the string all along was Phanilal and the name of Mr. S. K. Sengupta was utilised to give an innocent look to this shady deal. It is, therefore, not surprising that Mr. Sengupta would refuse to continue as trustee. In fact, it does not appear that he ever acted as a trustee; he did not raise a loan by mortgage in terms of the decree. Phanilal then had to come out in the open and get himself appointed as trustee by a consent order dated 11-7-1946 in piace and stead of Mr. S. K. Sengupta in order that a mortgage could be created in favour of Nimai Chand Dutt. Five days after on 16-7-1946 the mortgage was executed by Phanilal. The mortgage was executed by Phanilal as trustee and Sital as shebait. If theproperty had vested in Phanilal as trustee and he was authorised by the court to raise a loan ot Rs. 4000/- on a mortgage, it is difficult to understand why Sital should be a co-mortgagor. Is it because Phanilal knew that the decree was fraudulent and void and it was safer to make Sital a co-mortgagor so that he may not repudiate the mortgage? D. Roy and Rajen Sen were made attesting witnesses. Rajen Sen is a half-wit and all along acted as a tool of Phanilal. D. Roy never came to the witness-box. The receipt of the consideration was acknowledged by the mortgagors in the document. The consent decree provided that out of the consideration money, Rs. 2500/- was to be paid to Nimai to get a surrender of the lease, Rs. 500/- was to be paid to D. Roy as costs, Rs. 250 was to be paid to Sital's attorney B. K. Chose and Rs. 750/- to be utilised for repairs. Phanilal in his evidence stated that he spent Rs. 800/-for repairs.

13. After the mortgage, Phanilal acted as trustee for a period of about 3 years till 7-3-1949 and according to his own evidence, he went on realising the rents, effecting repairs and making disbursements. Even though in the petition to persuade the Court to Sanction the mortgage, the Court was made to believe that the mortgage would be paid off at the rate of at least Rs. 50/- a month, not a single pice was paid on account of the mortgage. Phanilal stated that he as trustee filed certain accounts in Court, a copy of which was placed before me. This is not a regular account in which receipts and disbursements have been recorded as they are made. It records, for example, payment of Rs. 140/- on account of Dev Seva for 7 months at the rate of Rs. 20/- per month. It does not appear from this account on what date or dates the payments were made. Similar payment of Rs. 240/- is recorded as last item in the account of 1947. The account also shows payment of electric bills for every month at the rate of Rs. 20/-more or less. In the petition for leave to settle the suit instituted by Rajen, it was not stated that this was an important outgoing. All the parties knew it and Phanilal according to his own evidence acted as the agent of Mr. Sen Gupta. He cannot be heard to say that he did not know that electric charges were payable. This was deliberately suppressed from the Court and the Court was given the false impression that there would be a surplus of Rs. 50/-after meeting all outgoinss to liquidate the mortgage liability. The account shows that from May 1946 to November 1948, that is, for about 31/2 years, the trustee realised Rs. 2968/0/6 on account of rent, i. e., at the rate of Rs. 850/- per year. In the petition it was stated that the rent after repair would be at least Rs. 115/- per month, that is, Rs. 1380/- per year. This is another example of misleading the Court. The account shows payment of Rs. 2500/-to Nimai, Rs. 500/- to D. Roy and Rs. 250/- to B. K. Ghose in terms of the consent decree. It shows a further payment of Rs. 206/1/3 to D. Roy under order dated 11-7-1946, whereby in place of Sengupta Phanilal was appointed trustee. Phanilal paid himself the following sums: Rs. 428/4/- plus Rs. 104/2/-alleged to have been advanced. This appears in 1947 account. Also Rs. 110/9/6 as his remuneration for collection of Rs. 2211/8/-. This appears in 1948 account. All the three payments made to Phanilal himself appear to be wholly unwarranted. It does not appear when Phanilal did advance Rs. 428/8/- and Rs. 104/2/- from the account book or otherwise. Nor was he entitled in law to get any commission on collection. It must be held that Phanilal had money in his hand belonging to the debutter estate even if the decree is held to be valid in terms of which he was required to act and did purport to act. There is no account of the subsequent period i.e. from November 1948 to March 7, 1949, when Phanilal by a consent order was discharged from further acting as trustee. Phanilal was awarded the costs of the application resulting in the order for his own discharge. This amounted to about Rs. 250/-on taxation. For the realisation ot this cost Phanilal had the Official Receiver appointed Receiver of the income of the debutter property by an order dated 18-4-1950. Phanilal had money of the debutter estate in his hands and he had no justification to have a Receiver appointed for the realisation of the sums not due to him. On the date of the application and order he was indeed a debtor to the debutter estate, as indicated before. This is clearly an illegal act. It was done apparently to prevent Sital from realising the rents, out of which outgoings could be met. The result of this act was to put the debutter estate into troubles. I have no doubt that the next step in the contemplation of Nimai & Phanilal was to enforce the mortgage by instituting a suit. In the meantime, Sital & the debutter estate must be crippled financially. In evidence Phanilal stated that his reason for relinquishment of trusteeship was Sital's interference in the administration of the debutter estate. This is hardly acceptable, Phanilal knew more than enough how to deal with Sital, During the period of his trusteeship, Phanilal appears to have paid the Corporation taxes of the period, but there was arrear of taxes for period prior thereto. This appears not to have been paid. For the realisation of this arrear amounting to Rs. 186/13/- the Corporation instituted a suit claiming a declaration qf statutory charge and usual mortgage decree. Phanilal wrongly described as Pannalal, Sital, Nimai, Binodini and the deity were impleaded as defendants. The suit was Instituted on 15-7-1950. On an application being made by Phanilal that he was no longer trustee and that Binodini wag dead, the names of Phanilal and Binodini were struck out from the category of defendants by an order dated 20-12-1950. It is to be noted that Phanilal had still trust money in his hand with which he could have paid off the Corporation's dues and finished with the suit. He did not do it. What appears to have been done was that Nimai paid off the Corporation's dues and had himself transferred to the category of the plaintiff. The suit instituted by the Corporation dispensed with the necessity of Nimai's instituting a separate suit to enforce his mortgage. Nimai took advantage of the suit by the Corporation and after payment of the Corporation's claim became the plaintiff himself. Phanilal acted as the solicitor for Nimai, This gives Phanilal as Nimai Butt's attorney the carriage of proceedings and control of the suit. Incidentally, Phanilal as plaintiffs attorney would get substantial costs, because, in that event, the value of the suit would be over Rs. 2500/-, This fact might have inspired Phanilal to advise Nimai to pay off the Corporation's claim and have Nimai transferred to the category of the plaintiff. Then the suit ran its usual course. Sital as shebait and trustee did not contest. Amiya Kumar Dutt who was appointed the guardian of the deity got no instructions from anybody to contest the mortgage and left the interest of the deity to the Court. In due course, preliminary and final decree for sale was passed and in the Registrar's sale the defendant Upendra, the owner of the adjacent building, purchased the property. Subsequently, Upendra was advised that a good title was not made out because the lease and the mortgage were not for legal necessity. An enquiry as to title was directed by an order of the Court. The Registrar reported that so long ad the consent decree in Rajen's suit was not set aside as fraudulent, title cannot be challenged. This report was confirmed by the Court and the purchaser thereupon was directed to pay the balance of the purchase money and complete the sale. After such completion, the purchaser applied against Sital's daughter who was in possession then to show cause why possession should not be delivered. Thereafter, the present suit was instituted. It should be noted that when the purchaser took out summons for an enquiry as to Whether title has been made Out, Amiya Kumar Dutt, as the guardian of the deity, supported the purchaser both in the enquiry before the Registrar and before the Court contending that good title had not been made out. Nimai and his attorney Phanilal contended that good title had been made out.' This is the final chapter of the alienation of the debutter property. Amiya Kumar Dutt as the guardian-ad-litem had no power to institute the suit. The person competent to institute a suit is the she bait, who, after Sital's death, is his daughter. But before the suit could the instituted, the purchase money put in by the purchaser was withdrawn by Nimai and Phanilal on account of the claim and costs of the mortgage decree. It appears that the money was withdrawn sometime on or about 5-12-1955.

14. That is how the alienation of the debutter property was completed and it is the plaintiff's case that this has been brought about by the fraud and conspiracy of the defendants. The central figure of this fraud and conspiracy is Phanilal and the others Were co-conspirators. It is contended that title of the deity is not lost and the deity Still continues to be the owner of the property. The acts by which the deity lost the property are contended to be fraudulent and illegal acts and as such do not affect the deity's title. Each and every act beginning from the granting of the lease, institution of the suit which terminated in a consent decree whereby trustee was appointed of the debutter property with power to create a mortgage, the creation of the mortgage thereunder by the trustee and ultimate sale of the mortgaged property in enforcement of the mortgage, is described as fraudulent and collusive and the alienation of the debutter property is alleged to be without any legal necessity to the knowledge of all the defendants. It is claimed that in ease the alienation can-not be set aside, the deity should be damnified for the loss.

15. It now remains to be considered whether the deitv has any remedy in law. Learned counsel appearing for the defendants strongly urged that the suit should be dismissed in limine because the case made is a case of fraud and fraud has not been properly pleaded with the necessary particulars. Wellknown cases decided by the House of Lords and the Judicial Committee of the Privy Council have been cited and relied on in support of this contention. It has been strongly urged that no proper case of fraud has been made in the plaint and the suit should be dismissed on that ground.

16. It is pleaded in paragraph 13 of the plaint that the ultimate sale is invalid and riot binding on the deity and this has been brought about by various acts of the defendants. The lease in favour of Gopinath Das is stated to be fraudulent, because there was no legal necessity and the deity did not get any benefit thereunder. This, in my judgment, is enough pleading of fraud in order to make a case that the lease was not binding on the deity and the debutter property. Granting of a lease of debutter property without any legal necessity is a fraudulent act. So also the lease is in fraud of the deity, when the lease is for no consideration. This has been alleged sufficiently in the plaint and the law of pleading, as I understand it, does not require any further averment. It is pleaded that in the matter of granting of this fraudulent lease, the parties involved were Sital, the shebait, Gopinath, lessee and Phanilal, the attorney. It is next alleged that the suit instituted in the name of the deity by Rajen Sen as next friend is a fraudulent suit and all steps taken in that suit are fraudulent. It is alleged that Rajen, a stranger to the family, was not entitled to bring a suit in the name of the deity and this fact was suppressed from the Court. In that suit a consent decree was passed which authorised the mortgage. It is alleged that this settlement was prejudicial to the deity. It is made clear that the object of the suit was to deprive the deity of the property and that the suit resulted in a decree authorising an illegal mortgage. The defendants as parties are responsible for this fraudulent suit and its consequences. It has been alleged that the consent decree is void and illegal and that the deity derived no benefit therefrom. It is alleged further that the mortgage suit is fraudulent and did not affect the deity's title to the property. In my judgment, there is enough averment in the plaint to indicate the case intended to be made in the suit, namely, that the title of the deity in the debutter property has not been affected by all or any of the acts of the shebaits acting along with and in collusion with different people which ultimately resulted in the alienation of the debutter property. The fraud in respect to each step whereby the debutter property was ultimately sold has been stated sufficiently and even if it might perhaps have been given in a better way with fuller details, it does not entitle any Court to dismiss the suit on the ground that fraud has not been sufficiently pleaded. To insist on more than what is alleged in the plaint would be pedantry. The object of pleading is to give the defendants full notice of the case to be made, so that they are not taken by surprise. That is why the law insists that the plaint must give full particulars of the material allegations constituting the cause of action and if any fraud is to be alleged against all or any of the defendants, it must be stated with full particulars. In the instant case, the fraud alleged is that the lease and the mortgage were without legal necessity without consideration and were not for the benefit of the deity: that the object of the suit which authorised the mortgage was to get a sanction from the Court to raise a mortgage which was neither for legal necessity nor for the benefit of the deity, and that pursuant to the decree in such a suit an unauthorised mortgage was executed which was neither for legal necessity nor for the benefit of the deity. Subsequent suit in enforcement of the mortgage is also fraudulent and the sale thereunder did not affect the deity's title. It will not do for us to forget that the object of the suit is to establish the deity's title in the debutter property and all that the deity need allege is that the alienation was without legal necessity and was not for the benefit of the deity. That averment is enough in law to enable a deity to challenge an alienation and it would be for the alienee to prove that the alienation was either for legal necessity or for the benefit of the deity or that the alienee made bona fide enquiry and was satisfied that there was legal necessity. It is not really an action in, tort wherein the claim is for damages for tort and the cause of action is conspiracy to do a tortious act with respect to the property. The language used in the plaint may be loose and the suit may appear superficially a suit on tort. But as I understand it, it is purely a title suit in which the deity seeks to make a case that the debutter property has been wrongfully alienated and that the deity still retains title in the property. If for any reason the property cannot be recovered back, the deity must be damnified.

17. The legality of the lease and the question whether it is binding on the deity is not important, except for one purpose. The lease has been surrendered. The consideration for the subsequent mortgage was substantially to pay Rs. 2500/- to obtain the surrender. Whether the money to obtain surrender of the lease is a lawful consideration to create a mortgage binding on the deity is the only point to consider in respect to the lease. The lease, in my judgment, was a fraudulent document not binding on the deity. Nor has it been proved that the consideration for the lease, namely, payment of Rs. 2500/- has been made. The lease, according to evidence, was entered into to stifle a criminal offence and as such is altogether void. The lease being void, there was nothing to surrender, and if any payment is made for surrender of such a lease, such payment is without any consideration. The payment for obtaining the surrender of a void and illegal lease cannot be a good consideration for the mortgage of debutter property.

18. Suit No. 980 of 1945 instituted by Rajen Sen in the name of the deity has been challenged, on the ground that Rajen Sen had no authority in law to institute the suit. According to Hindu Law, sebait represents the deity and he alone is competent to institute a suit in the name of the deity. In exceptional circumstances, however, where the sebail doeg not, or by his own act deprives himself of the power of representing the deity, a third party is competent to institute a suit in the name of the deity to protect the debutter property. Dr. Das contends that such a party must be a member of the family or a worshipper and that a total stranger, in law, is not competent to institute a suit in the name of the deity. I do not, however, consider this to be the correct view in law. A worshipper or a member of the family has no dcubt his own right to institute a suit to protect his right to worship and for that purpose to protect the debutter property. That is, however, a suit by the member oi the family or worshipper in his personal capacity and not a suit by the deity. The deity has also a right of its own to have a suit instituted by a next friend. As I understand the law, the person entitled to act as next friend is not limited to the members of the family or worshipper. Anybody can act as such next friend, but the law requires that anybody other than sebait instituting a suit in the name of the deity must be appointed as such by an order of the court. That is the law as recognised by this Court. Reference may be made to the case of Tarit Bhusam v. Sreedhar Salagram : AIR1943Cal99 , Sreedhar Jew v. Kanto Mohan : AIR1947Cal213 , and Sushama Roy v. Atul Krishna Roy, : AIR1955Cal624 .

19. This suit must, therefore, be held to be wholly unauthorised and all proceedings including the decree must be held to be illegal and void so far as the deity is concerned. It is contended by Mr. Sankar Ghose that the suit has not been challenged on this ground. But in my judgment, when the court finds that the authority to create a mortgage of debutter property is derived from a consent decree and the decree and plaint are tendered in evidence the court is bound to declare the decree to be invalid, when it finds that the suit has been instituted by one having no authority to institute a suit on behalf of the deity. The decree authorising the mortgage must beheld to be wholly void and not binding on the deity at all.

19a. Since evidence has been tendered as to whether the decree is fraudulent, I would better record my finding on it. In my judgment, the suit is fraudulent in its inception, continuance and termination. The suit instituted according to Rajen was at the request of Sital to get rid oi the lease. Sital intended the suit to be instituted against Gopinath. Suit, however, was instituted, not against Gopinath but against Sital and not for the purpose of setting aside the lease, but ostensibly for the purpose of framing a scheme, but for the real purpose of cow finning the lease and creating a mortgage. Though the suit was against Sital, Sital was himself purporting to prosecute the suit and Phanilal was purporting to act according to the instructions of Sital. In fact, however, Phanilal was prosecuting the suit, not in the interest of Sital but in the interest of his own protege Nemai and the consent decree was obtained not in the interest of the deity nor even in the interest of Sital, but in the interest of Nemai Chand Dutt., The sanction of the court was obtained fraudulently by suppression and misstatement of facts and a gross fraud was perpetrated on the court to induce it to sanction the consent decree and to certify it to be for the benefit of the deity. I hold that Phanilal was the real attorney who was acting for the plaintiff in that suit in the name of D. Roy, even though he was warned by an eminent Counsel of this court that he could not act for the plaintiff in the suit; The suit was Phanilal's and was intended to get the sanction of the court to confirm the lease and to sanction the mortgage. In my judgment, it was a thoroughly dishonest suit, fraudulent in its inception, continuance and termination. No party can acquire any right under such a fraudulent decree. The mortgage cannot be supported, because it was sanctioned by the Court in a fraudulent suit.

20. Can the mortgage be otherwise supported? Though the mortgage deed recites that the mortgage was being created by Phanilal as trustee appointed by the court under the authority derived from the decree passed in the suit to secure an advance of Rs. 4000/-, yet the deed recites that the mortgaged property has vested in Phanilal as trustee and Sital as sebait. Sital's sebait appears to be a co-mortgagor. It must be held on my finding that Phanilal had no authority to create the mortgage on the basis of the consent decree in Rajen's suit. But Sital as sebait could mortgage the property independently of any authority derived from the consent decree. Such a mortgage, if it was for legal necessity or for the benefit of the deity, would be binding on the deity. If, however, it is not for legal necessity nor for the benefit of the deity, it would not be binding on the deity.

21. The question to be considered is whether the mortgage in the instant case was for legal necessity or for the benefit of the deity. The mortgage was entered into primarily to pay the lessee as the price of surrender. That is the object stated in the consent petition, Rs. 2500/- to paid to the lessee to obtain surrender, costs amounting to Rs, 750/-(that is, Rs. 500/- to D. Roy and Rs. 250/- to D. K. Ghose, the attorneys employed in the suit) and Rs. 750/- for repairs. I do not consider this to be a case of mortgage for legal necessity. The lease was not binding on the deity and I have held, on the evidence, that no payment of consideration has been proved. Further, the lease was to compound a criminal offence. The payment of costs to the attorneys of the party employed in a suit which was instituted to defraud the deity and which, in any event, was a suit not of the deity, cannot be considered to be a legal necessity. Nor do I consider that a sebait is justified in raising a loan of Rs, 750A by mortgaging the property, when that small expense can well be met out of the income of the debutter estate. It is not a case of Rs. 750/- already borrowed and spent for the purpose of repairs, but a case of borrowing the sum of Rs. 750/- on a mortgage, so that repairs and improvement can be effected in future. I hold that there was no pressing necessity for the mortgage and the mortgage cannot be binding on the deity as being one entered into by the sebait for legal necessity. Nor do I consider that the mortgage was for the benefit of the deity. Rs. 2500/- alleged to have been paid by the mortgagor to himself as the lessee and the costs of the suit can hardly be contended to be for the benefit of the deity. Phanilal in his evidence stated that he spent a sum of Rs. 800/- on account of repairs and improvement of the debutter estate. It does not appear from the accounts filed by him as a trustee that he spent on account of repairs out of money advanced by Nemai. He was realising rent month by month and the amount spent by him was spread over the entire period during which he was in possession as a trustee. It may well be that he spent on account of repairs out of the rent he was receiving. Further, he stated that he was realising rent on behalf of Sen Gupta, who was appointed Receiver immediately after the institution of the suit. That money has not been accounted for. This money might have been utilised for the repairs and improvement, and in view of this fact, I am unable to accept the evidence of Phanilal that repairs were effected with the money borrowed on the mortgage. It is to be noted that no part of the sum of Rs. 4000/-was paid to Sital. Hence, Sital could not have spent the money for repairs and improvement. Even if Phanilal's evidence is accepted, he executed the mortgage and obtained the consideration money himself and spent part of it for improvement of the debutter estate. Sital did not obtain the mortgage money or any part thereof, even though he was a co-mortgagor, Even if the mortgage is one created by the sebait, it must be held, on evidence, that he neither received any part of the mortgage money nor spent it for the improvement of the debutter properly. The debutter estate cannot, therefore, be held to have been benefited by the money advanced by Nemai to Phanilal. It must, therefore, be held that the mortgage was neither for legal necessity nor for the benefit of the deity. No case has been made either in the pleading or in evidence that Nemai made any enquiry as to the existence ot legal necessity, so as to justify the mortgage. The mortgage, therefore, is not binding on the deity.

22. The other matter now left to be considered is the mortgage Suit No. 2970 of 1950 instituted by the Corporation of Calcutta to enforce the statutory charge for the realisation of the consolidated rates. The plaint is Ex. B/4 and filed on July 15, 1950. The amount claimed by the Corporation in the suit as Rs. 186/13/-. The defendants are Phanilal (wrongly described as Pannalal), the deity, Sital, Binodini as sebait and Nemai. It is alleged in the plaint that the defendants are interested in the premises and/or in the right of redemption therein. The plaint appears to have been subsequently amended by an order dated October 30, 1951, whereby the names of defendants Nos. 1 and 3 (Phanilal wrongly described as Pannalal and Binodini) were struck out. It will be seen that before and after the amendment both Sital and the deity remained as defendants. The Court appointed one Amiya Kumar Dutt as the next friend of the deity He received no co-operation or instruction from anybody and left the interest of the deity in the hands of the court and only asked for instalments under the Bengal Money Lenders Act. In the result, there was the usual preliminary and final decree and ultimately a sale of the property. The deity, at the instance of the plaintiff Nemai, was made to be represented in the suit not by the sebait but by a guardian-ad-litem appointed by the court, in the instant case, Amiya Kumar Dutt -- who was not given any assistance in properly defending the suit. It has not been alleged anywhere in the mortgage proceeding why the sebait was not competent to act as the guardian of the deity. In law, sebait and nobody else is entitled to represent the deity, unless the sebait has disabled himself from so acting as sebait. In obtaining from the court an order for separate representation of the deity and not by sebait, it was the duty of the plaintiff to have placed before the court facts which disabled the sebait from representing the deity. There is nothing to indicate that the court applied its mind in the matter and after consideration came to the conclusion that the sebait was not the proper person to represent the deity. Sebait's right to represent the deity not having been adjudicated in any proceeding in the mortgage suit, the sebait continued to represent the deity and the appointment of Amiya Kumar Dutt as the guardian appears to have been made not according to law. This order has done nothing except creating confusion. In any event, the said guardian received no co-operation from anybody, and I hold that in fact the deity was not effectively represented in the mortgage suit and the interest of the deity could not be and in tact was not protected in that suit. The responsibility for all this must be attributed to Nemai, the plaintiff, and his attorney Phanilal. The plaint appears to have been amended by. an order dated December 20, 1950. Nemai was transposed from the category ot defendant to be the sole plaintiff in place and stead of the Corporation. Amount of claim on account of consolidated rates is reduced to Rs. 116/1/- by deduction of Rs. 70/1/-, apparently paid previously. It is pleaded in the amended plaint that the plaintiff Nemai has paid the said claim of the Corporation and costs; it is not stated how much cost he has paid. Paragraph 3 of the plaint is substituted by a new paragraph which reads as follows:

'The plaintiff further claims as a mortgagee of the said premises No. 6, Bhuban Sarkar Lane particulars whereof are as follows: Dated 16th July, 1946, for Rs. 4,000/- interest 6% simple.'

Prayer (a) is amended and reads as follows:

'Declaration of first charge on the said premises for the sum of Rs. 116/13/- and the costs incurred thereby as mentioned in paragraphs 1 and 8 thereof.'

That is all the amendment effected when Nemai had himself substituted in place and stead of the plaintiff. Phanilal was acting as the solicitor of Nemai.

23. In law, the mortgage effected by the sebait without legal necessity and not for the benefit of the deity is not void and the mortgagor acquires some interest in the mortgaged property, that is, the interest of the sebait which enures only during the incumbency of the sebait. The sebait may alienate by way of lease, mortgage or sale the debutter property even without legal necessity and not for the benefit of the deity. Such an alienation would not affect the tide of the deity. The transaction would not be void, and the alienee would be entitled to the rights of the sebait in the property so long as the sebait continued as a sebait of the debutter properties. In the instant case I have held that the mortgage was not for the benefit of the deity and the mortgage security was not therefore the debutter property but only the sebaity interest of Sital in the debutter-property and the sebaity interest of Sital in the debutter property will enure during the incumbency of Sital and it will come to an end either on the death of Sital or on the termination of his sebaity. In a suit to enforce a mortgage of debutter property by a sebait, when the mortgage is neither for legal necessity nor for the benefit of the deity when a decree is passed for sale of the mortgage security in such a suit what is sold is not the mortgaged property but only the sebait's interest in the debutter property. The purchaser in such a case would not acquire title in the debutter property beyond the lifetime of the sebait and on the termination of his sebaity the title of the purchaser in the debutter property would come to an end. It would, therefore, follow that in the instant case Sital having died on February 21, 1956, the purchaser's right to the property is extinguished on that date and the deity's title to the property as owner is not affected either by the mortgage or sale in the enforcement of the mortgage.

24. It has however been argued that the deity was a party to the mortgage suit and its title to the property has been extinguished by the decree. It is very strongly urged on behalf of the defendant that the deity is barred by res judicata or principles analogous thereto from setting up its title as against the purchaser, If that was the correct position in law then in every case of sale in execution of a mortgage decree the claim of the deity would be barred in a subsequent suit to set aside the alienation. The plea of res judicata or principles analogous thereto would be a complete answer to such a suit. But it has been held by the highest court that such a suit lies, The reason is that in a mortgage suit simpliciter, what is proceeded against is the mortgagor's interest in the property -- that is the mortgage security and what is sold in execution of the mortgage decree is the right title and interest of the mortgagor in the mortgage security. The mortgage not being binding on the deity, the mortgage security is only the interest of the sebait in the debutter property. The court in such a suit, therefore, is called upon to pass a decree or order for sale not of the debutter property but of the right tide and interest of the sebait in the debutter property. There cannot be any question, therefore, of the deity's title to the property being adjudicated by the court and in consequence the decree in the mortgage suit cannot operate as res judicata barring a subsequent suit by the deity to establish its title to the mortgaged property. The paramount tide of the deity cannot be deemed to have been adjudicated in a suit simpliciter on a mortgage created without any legal necessity. The mortgage security being nothing more than a sebait's right in the mortgaged property and the suit being simpliciter to enforce the mortgage security, it must be held that the determination of the paramount title of the deity in the debutter property could not have been determined in the instant mortgage 'Suit.

25. It may be competent for a mortgagee of debutter property to raise the question of the deity's title in a suit properly framed to enforce the mortgage against the debutter property. In such a suit it would be necessary to plead and prove that the mortgage was for legal necessity and/or for the benefit of the deity and/or the mortgagee before granting the mortgagee made reasonable enquiries as to the existence of legal necessity. In that event the question is adjudicated or is deemed to have been adjudicated by the court in the presence ot the deity properly represented when a decree is passed and such a decree may operate as res judicata. The title of the purchaser in execution of the decree in such sale might not be challenged by the deity in a subsequent suit. In the instant case however no such point has been raised by Nemai in the plaint and the suit is simpliciter a suit for mortgage without raising any, question as to whether the mortgage was for legal necessity and as such what was intended to be sold in execution of the mortgage decree is not merely the interest of the sebait but of the deity as well. In the plaint it is not alleged that the mortgage was for legal necessity or for the benefit of the deity or that the mortgagee made the necessary enquiry and was satisfied as to the existence of legal necessity.

26. It is to be noted that in the mortgage deed itself there is no recital that the sebait is effecting the mortgage for legal necessity. The deed makes it clear that the mortgage was being executed in terms of the decree in Suit No. 980 of 1945 and that it was being executed pursuant to the authority of the court. Such authority was given to the trustee and not to the sebait. The point to be noted is that it does not appear anywhere from the deed that the sebait was creating the mortgage for legal necessity. It, therefore, follows that in the instant case where neither the mortgage deed shows that the sebait executed the mortgage for legal necessity and the plaint does not make a case that the mortgage was for legal necessity thereby raising the question o the deity being bound by the mortgage, this suit cannot be treated as anything other than a mortgage suit simpliciter in which the plaintiff has sought to enforce his security namely the sebaity interest in the debutter property. It cannot, therefore, be contended that the deity's title has been adjudicated against in the mortgage suit and the deity is debarred from claiming title on the ground of res judicata or principles analogous thereto.

27. It is contended that the deity is a party tp the mortgage suit and as such bound by the decree. The point is not whether the deity is bound by the decree but the point is what interest passes in the sale pursuant to the decree. In other words, what is the decree? For the purpose of determining what is the decree, the scope of the suit is to be ascertained from the averments in the plaint and the reliefs claimed. The plaint does not aver that the mortgage was for legal necessity and as such binding on the deity. The mortgage on which the suit is filed indicates nowhere that the sebait executed the mortgage for legal necessity. I, therefore, hold that the mortgage security was only the sebait's interest in the debutter property proceeded against in the mortgage suit. That being the scope of the suit, the deity was not called upon to set up its title to the property in the mortgage suit. Merely by impleading the deity improperly as a party and without making any averment in the plaint that the deity's title in the debutter property is intended to be affected by the decree, the plaintiff is not entitled to contend that the deity's title had been negatived when a decree is passed in the mortgage suit and the deity is in consequence debarred from having its title determined subsequently in a suit on the principles of constructive res judicata. In order that the deity's interest in a debutter property may be sold in enforcement of a mortgage of debutter property executed by a sebait, it is necessary to aver in the plaint that the mortgage was for legal necessity and/or for the benefit of the deity and/or the mortgagee made the necessary enquiry when advancing money on the mortgage. In the absence of such an averment, what is sought to be enforced in the mortgage suit is only the right title and interest of the sebait in the debutter property. In such a mortgage suit simpliciter when there is no such averment in the plaint, the deity is not a necessary party. Merely by adding the deity as a party, the scope or the suit is not extended and the mortgage security is not indicated to be not merely the sebait's interest in the mortgaged property but the deity's interest as well.

28. There is, however, another point to be considered. The mortgage suit was not merely to enforce the mortgage created by Phanilal and Sital on July 16, 1946 for Rs. 4000/-, It was also to enforce the statutory charge for the recovery of consolidated rates. Originally the suit was instituted by the Corporation to enfoce the 'statutory charge. During the pendency of the suit, defendant Nemai paid the dues of the Corporation and after payment had himself transferred to the category of the plaintiff, not merely to enforce his own mortgage but also to enforce the statutory charge. For the payment of the consolidated rates the entire property was liable to be sold and in enforcement of the charge, not merely the sebaity interest in the property but the deity's interest also was liable to be sold. It follows that inasmuch as, in the instant case, the sale in the suit was not merely for the recovery of the money secured by the mortgage deed of July 16, 1946, but also for the recovery of the money for which the property was charged by the Calcutta Municipal Act, the interest that passed in the suit to the purchaser is not merely the interest of the sebait but also that of the deity in the property. It seems that the purchaser's title to the property on that basis cannot be challenged now in this suit. On that ground plaintiff's title to the property must be negatived and the purchaser's title upheld. I have come to this conclusion with considerable amount of hesitation more particularly because the Corporation's claim is very small and the property was sold substantially in enforcement of the mortgage of July 16, 1945.

29. It appears that after the institution o the suit out of the total claim of the Corporation amounting to Rs. 186/13/-, Rs. 70/1/- was paid to the Corporation and may be the balance would have been paid in the same way and the property would not have been sold to answer this small-claim of the Corporation on account of consolidated rates. Nemai no doubt by making payment of the small balance of Rs. 116/13/- claimed to have been subrogated and sought to enforce not merely his own mortgage but the claim for consolidated rates as well. Whether he was at all entitled-to be subrogated under the Transfer of Property Act may be a nice question of law. But the fact remains that he claims to be subrogated and on that footing sought to enforce the Corporation's claim for consolidated rates on the debutter property: The entire debutter property was answerable for the realisation of consolidated rates. Inasmuch as the instant suit was not merely to enforce the mortgage dated July 16, 1945 in which the mortgage security was only the sebaity interest but to enforce payment of the consolidated rates as welt for the payment of which the property itself was charged, the entire property came within the purview of the suit and not merely the sebait's interest in the debutter property. What, therefore, was sought to be sold in the mortgage suit is not merely the sebaity interest in the mortgaged property but the debutter property itself and what is sold is debutter property and not merely the sebaity interest of Sital.

30. A point was raised that in the mortgage suit a proceeding was initiated by the purchaser as to whether a good title had been made out and there was, an order for enquiry and the Registrar in his Report held that a good title had been made out and this had been confirmed by the court. It is, therefore, contended by Mr. B. C. Dutt the learned counsel for the purchaser Upendra that his title cannot be challenged now. Having regard to what is stated above and my finding that the title in the debutter property has passed to the purchaser, it is not necessary to further consider this point.

31. The fact that the purchaser acquired title to the property which cannot be challenged now does not mean that the mortgage of July 16, 1945 became binding on the deity. This finding that the purchaser's title cannot be challenged now is not inconsistent with my other finding that the mortgage is not binding on the deity and the interest acquired by the mortgage is the sebaity interest only. The property is sold and the sale is upheld. There are however the sale-proceeds and the mortgage is shifted to the sale proceeds, and the question now remains to be considered who is entitled to the sale-proceeds? The sale proceeds now represent the mortgaged property. The mortgaged property was liable for the consolidated rates but not to answer the claim under the mortgage dated July 16, 1945. The sale proceeds are therefore only to be utilised for the payment of the Corporation charges and nothing on account of mortgage. The sum paid to the Corporation by the plaintiff Nemai amounting to Rs. 116/13/- is properly payable to him out of the sale proceeds. The rest except any sum paid to the Corporation on account of consolidated rates belongs to the deity. This lias been improperly withdrawn by the plaintiff Nemai and his attorney Phanilal. They must refund it to the plaintiff and there will be a decree against them for the balance with interest at the rate of six per cent from October 7, 1946 uptil today.

32. I do not think that I should mate any consideration in favour of Phanilal because the money withdrawn by Phanilal is on account of costs. I hold that so far as these costs are concerned, the deity should not be made liable. The cost of suit as originally instituted would have been comparatively small. The cost has become heavybecause of the claim of Nemai to enforce his mortgage in this suit. The deity should not be madeliable for these costs more particularly becausethis heavy cost incurred is attributable to the misdeeds of Nemai and Phanilal. The deity is entitledto the costs of the suit as against the defendantsNemai and Phanilal. The purchaser will pay hisown costs. So also Gopinath will pay his owncosts.

33. This suit was continued as a pauper suit.My attention has been drawn to Order 38 Rule 10and also to Ch. 12 rules 13 and 14 and Ch. 56 rules53 and 54 of this Court. The court-fees payable tothe court in terms of the Civil Procedure Code andthe Rules referred to above would constitute a firstcharge; on the amount payable under this decree.I direct the amount to be ascertained and out of thedecretal amount this amount is to be paid in thefirst instance. The learned counsel who represented the deity at the request of the court and appearedthroughout the proceeding is not entitled to a feeunder Ch. 36 rules 53 and 54 without an expressOrder of the court. Having regard to the amountof labour put in by the learned counsel as also thesolicitor for properly representing the claim of theplaintiff before me, I make a special order in favourof the attorney and the counsel and direct that feesbe paid to them according to the rules.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //