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Baikuntha Nath Roy Vs. Sheikh Nura and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.196
AppellantBaikuntha Nath Roy
RespondentSheikh Nura and anr.
Cases ReferredJoy Sankari Gupta v. Bharat Ghaudra Bardhan
Excerpt:
civil procedure code (act xiv of 1882), section 568 - evidence, additional--appellate court--when to be taken--mortgage--undivided share--partition--mortgage during partition suit--bight of mortgagee--share allotted to mortgagor. - .....but was resisted in the actual possession of the same by the defendants who claim the same under a zari peshgi deed executed by one kripal narain in 1892. the defendants in their written statement pleaded that the lands were not the lands of harihar and the plaintiff had, therefore, no right to the same. the main issues, therefore, were whether the disputed land formed-part of the lands purchased by the plaintiff and whether the defendants held the same under a zari peshgi from kripal narain. it appears that kripal narain with harihar and others formed a joint family. harihar brought a suit for partition in 1888 in which kripal filed his writteu statement in 1889. pending the suit the zari peshgi was executed by kripal narain who was evidently the managing member of the family before the.....
Judgment:

Chatterjee, J.

1. The plaintiff purchased the diluted lands in execution of a decree against one Harihar in 1899 and took delivery of possession but was resisted in the actual possession of the same by the defendants who claim the same under a zari peshgi deed executed by one Kripal Narain in 1892. The defendants in their written statement pleaded that the lands were not the lands of Harihar and the plaintiff had, therefore, no right to the same. The main issues, therefore, were whether the disputed land formed-part of the lands purchased by the plaintiff and whether the defendants held the same under a zari peshgi from Kripal Narain. It appears that Kripal Narain with Harihar and others formed a joint family. Harihar brought a suit for partition in 1888 in which Kripal filed his writteu statement in 1889. Pending the suit the zari peshgi was executed by Kripal Narain who was evidently the managing member of the family before the partition suit which was decreed in 1893, the disputed lands falling to the share of Harihar. The Court of first instance held that the principle of lis pendens applied and the zari peshgi being executed pending the suit for partition could not prevail against the ultimate decree. The defendants never pleaded that the zari peshgi was executed by Kripal Narain as the Karta of the family and even if they had taken such a plea, it would be at once met by the fact that after the suit for partition Kripal could not be said to be the Karta and in fact Kripal, so far from stating in the zari peshgi deed that he was granting it as the karta stated that he was entering into the transaction for his own necessity. The learned Judicial Commissioner, however, raised the plea in appeal and called upon the parties to adduce evidence as to the transaction being on behalf of the family for family necessity. Two previous zari peshgi leases one executed by Kripal, Anant and Birinchi for Rs. 109 and another executed by Kripal for Rs. 50 were put in and a co-sharer examined as a witness. As the defendant had been misled as to the existence of these documents when the case was in the first Court the admission of these documents may have been competent and also the examination of any witness as to the formal proof of these documents. That would not have materially affected the case as originally made bat the learned Judge relies on the evidence of the co-sharer witness as proving that the debt was for meeting family necessity and in doing so I think he has gone beyond what the law authorises him to do. Section 568 of the Civil Procedure Code does authorize him to admit evidence in appeal when on hearing the case he thinks that such evidence is required to enable him to pronounce judgment, but it does not authorise him to make a new case not justified by the pleadings. See Kesswvji Issur v. Great Lillian Peninsular Railway Co. 31 B. 381 (P.C.) : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M.L.J. 347. The evidence of Beni Narain, therefore, so far as it goes beyond making out a formal proof of new documents must be left out of consideration. Then the documents proved show that a part of the consideration was borrowed jointly by Kripal, Anant and Birinchi at a time when the family was admittedly joint. That alone, however, does not affect Harihar who was not a party to the same and the very fact that Kripal took the whole debt upon himself after the partition suit shows that the debt was not treated as a joint family debt. Apart from the question of lis pendens, therefore, the zari peshgi of 1892 could not bind the share of Harihar. Coming to the question of lis pendens, it is contended on the authority of Shaik Khan Ali v. Pestonji Eduljee Guydar 1 C.W.N. 62, that the principle is not attracted by a partition suit in which there is no dispute as to shares. This case has been distinguished in Joy Sanltari Gupta v. Bharat Chandra Bardhan 26 C. 434 : 3 C.W.N. 209 and Jogendra Chunder Ghose v. Fulkumari Dassi 27 C.77 and it may be distinguished here as limited to the facts of the case which related to a lease pending a partition suit in which the existence of the lease may have been taken into consideration in making the allotment. The present is a case of mortgage. In the case of Byjnath Lall v. Ramoodeen Chowdhry 11. A. 106 : 21 W.R. 233, their Lordships of the Privy Council held that a person taking a mortgage from one co-sharer takes the security subject to the right of the other sharers to enforce a partition and thereby to convert what was an undivided share of the whole into a defined portion held in severalty. He would take the subject of the pledge in the new form which it had assumed (by the partition). The same principle was followed in the case of Hem Chunder Ghose v. Thako Moni Debi 20 C. 533, Lakshman v. Gopal 23 B. 385, Joy Sankari Gupta v. Bharat Ghaudra Bardhan 26 C. 434 : 3 C.W.N. 209. If that be the law in respect of mortgages before a partition suit is put in, there can be no doubt that a mortgage executed during a partition suit must be followed against the share allotted to the mortgagor and cannot affect the share of a non-mortgagor. The judgment of the lower appellate Court, therefore, is set aside and the decree of the first Court restored with costs.


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