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Sat Narain And Another v. Sri Kishen Das And Others

Privy Council

Jul 13, 1936

Judgment

Subsequent
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Structured Summary of the Opinion (Lord Thankerton)

Factual and Procedural Background

Sri Kishen Das and his two sons (the present appellants) formed a joint Hindu family with considerable immoveable property and a business headquartered at Delhi. On 5 April 1913 Sri Kishen Das mortgaged a large part of the immoveable family property to the Bank of Upper India Limited (the Bank) as security for his indebtedness. On 26 September 1913 Sri Kishen Das was adjudicated insolvent by the High Court of Bombay under the Presidency Towns Insolvency Act, 1909.

On 14 April 1914 the Bank sued in the District Court at Delhi for recovery of the mortgage debt (Rs. 4,64,021-15-8) by sale of the mortgaged properties, naming Sri Kishen Das, the present appellants (then minors), and the Official Assignee, Bombay. The appellants contested. The Official Assignee initially contested but later admitted the Bank's claim.

The appellants (through a next friend while minors) instituted a declaratory suit (2 Oct 1914) claiming one-half of the mortgaged properties and seeking injunction against sale of their half-interest. They also instituted a partition suit (11 Jan 1915) claiming partition and a half-share in the joint family immoveable properties, filing two lists (mortgaged properties and properties free from mortgage).

The three suits were tried together. On 13 April 1916 the District Judge dismissed the partition and declaratory suits and subsequently gave decree for the Bank's claim (27 April 1916) without order for sale in view of prior sales by the Official Assignee; that decree became final. The appellants appealed the District Judge's decrees to the Chief Court of the Punjab (now High Court at Lahore). On 20 January 1926 the High Court affirmed the dismissal in the declaratory suit and varied the partition decree to grant a preliminary decree declaring the appellants' share as one-half in certain unsold properties and directed division only after provision for satisfaction of the remainder of the Bank's debt and other antecedent debts of Sri Kishen Das unless shown to be immoral or illegal.

The present appeals are from the two decrees of the High Court. The appellants limited their challenge to properties not included in the Bank's mortgage and raised two principal objections: (a) the High Court confined the declaration to unsold properties and did not include those already sold, and (b) the High Court directed that division be postponed until provision is made for remainder antecedent debts.

Legal Issues Presented

Whether the Official Assignee, by virtue of S. 52(2)(b) of the Presidency Towns Insolvency Act, 1909, acquired the capacity to exercise the insolvent father's power to sell joint family properties (including the interests of the appellants) for payment of the father's antecedent debts not incurred for immoral or illegal purposes.
Whether the appellants' claim for a declaration of their one-half share should extend to properties already sold by the Official Assignee (i.e., whether the appeals should succeed in respect of sold but non-mortgaged family properties).
Whether, on partition of the family estate, division should be postponed and provision made for satisfaction of the remainder of the insolvent's antecedent debts (unless proved immoral or illegal) before division of the unsold properties in which the appellants claim one-half.

Arguments of the Parties

Appellants' Arguments

The appellants did not challenge properties included in the Bank's mortgage; their appeals related only to properties not included in the mortgage.
First contention: The High Court erred in confining the declaration to unsold properties and excluding properties already sold by the Official Assignee.
Second contention: The High Court erred in directing that division should be made only after provision for satisfaction of the remainder of the insolvent father's antecedent debts. The appellants argued that the pious obligation of the sons was an obligation not to object to alienation by the father for antecedent debts (unless immoral or illegal), but that those antecedent debts were not a liability of the joint estate requiring provision before partition. They relied on the judgment in Brij Narain v. Mangla Prasad to support this line of argument.
The appellants also contended that distributing proceeds to a limited class of creditors (those whose claims would benefit from such a sale) would conflict with S. 49(5) which provides for rateable distribution of debts proved in insolvency without preference.

Official Assignee / Respondents' Contentions (as reflected in the opinion)

The Official Assignee claimed the right to exercise the insolvent father's power to sell joint family property for payment of antecedent debts (not immoral or illegal) by virtue of S. 52(2)(b) of the Presidency Towns Insolvency Act, 1909, which vests in the insolvent the capacity to exercise powers in respect of property and, therefore, vests that capacity in the Official Assignee.
The Bank's position (reflected in the proceedings and the decrees) led to recovery of its debt; the Bank's decree became final and the Bank sought satisfaction of its claim, with the High Court directing provision for the Bank's remainder debt prior to division of unsold properties.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sat Narain v. Behari Lal, 1925 PC 18 (84 IC 883; 52 IA 22; 6 Lah 1 (PC))	Held that the adjudication order did not vest in the Official Assignee the appellants' interest in the family property (decision in a pre-emption suit involving these appellants).	The Board accepted that prior decision as establishing that the adjudication did not vest the appellants' proprietary interest, while distinguishing that from the separate capacity claimed under S.52(2)(b) to exercise the insolvent's powers.
Official Assignee of Madras v. Ramchandra Iyer, 1923 Mad 55 (68 IC 898; 46 Mad 54)	Madras High Court authority on the Official Assignee's capacity under the Insolvency Act to exercise powers in relation to property.	The High Court's decision was based on this and similar decisions of Madras and Allahabad; the Privy Council accepted that such authorities supported the Official Assignee's capacity under S.52(2)(b).
Re Sellamuthu Servai, 1924 Mad 411 (80 IC 108; 47 Mad 87; 46 MLJ 86 (SB))	Madras decision cited among authorities supporting the Official Assignee's powers under the Act.	Referred to by the High Court as consistent authority; relied on by their Lordships as part of the body of decisions upholding the Official Assignee's capacity under S.52(2)(b).
Bawan Das v. Chiene, 1922 All 79 (64 IC 976; 44 All 316; 20 ALJ 155)	Authority holding that when partition is made it is necessary to take account of both assets and the debts for which the undivided estate is liable (i.e., provision for such liabilities on partition).	The Board relied on this decision to support the High Court's direction that division should be postponed until provision for antecedent debts is made.
Sita Ram v. Beni Prasad, 1925 All 221 (84 IC 790; 47 All 263; 22 ALJ 1097)	A decision of the High Court of Allahabad reaching a conclusion contrary to Re Balusami Ayyar on the limitation of the Official Assignee's capacity.	The Board held Sita Ram to be incorrect on the point; it treated Re Balusami Ayyar as correctly stating the limitation and rejected Sita Ram's contrary effect.
Re Balusami Ayyar, 1928 Mad 735 (112 IC 541; 55 MLJ 175; 51 Mad 417 (FB))	Held that the father's power of sale (and thus the Official Assignee's corresponding capacity) is limited by the undivided character of the family estate and that this limitation applies to the Official Assignee.	The Board accepted this decision as correctly stating that the Official Assignee's capacity to exercise the insolvent father's power is limited in the same way as the father's power: when the family estate is divided, debts and assets must both be taken into account.
Brij Narain v. Mangla Prasad, 1924 PC 50 (77 IC 689; 51 IA 129; 46 All 95 (PC))	Clarified that the doctrine (relating to sons' obligation) is based on the pious obligation of the sons to see their father's debts paid, not on necessity for protection of third parties; immaterial whether the father is alive or dead.	The appellants relied on this decision; the Board accepted the point that the doctrine rests on pious obligation but held that that obligation nonetheless makes the liability one of the joint estate such that provision on partition is appropriate.
Sahu Ram Chandra v. Bhup Singh, 1917 PC 61 (39 IC 280; 44 IA 126; 39 All 437 (PC))	Earlier decision containing obiter dicta that were corrected by Brij Narain v. Mangla Prasad.	The Board noted that Brij Narain corrected certain obiter dicta in this earlier decision; it relied on the corrected principle announced in Brij Narain.
Venku Reddi v. Venku Reddi, 1927 Mad 471 (100 IC 1018; 50 Mad 535; 52 MLJ 387 (FB) at 539)	Authority referred to in support of the necessity to take account of liabilities of the undivided estate on partition.	The Board cited this decision as further support for making provision for antecedent debts of the undivided estate on partition.

Court's Reasoning and Analysis

The Board's analysis proceeded in distinct steps, applying statutory provisions and prior decisions cited in the opinion:

Scope of S.52(2)(b): The Board considered S.52(2)(b) of the Presidency Towns Insolvency Act, 1909, which includes within the "property of the insolvent" the capacity to exercise powers in respect of property that the insolvent could exercise for his own benefit. The Board agreed with the High Court that under S.52(2)(b) the Official Assignee acquired the capacity to exercise the insolvent father's power to sell joint family properties for payment of antecedent debts, provided those debts were not immoral or illegal.
Interaction with S.49(5): The appellants argued that distributing proceeds from such a sale among a limited class of creditors would conflict with S.49(5), which mandates rateable payment of debts proved in insolvency without preference. The Board held that, if S.52(2)(b) entitles the Official Assignee to exercise the insolvent's power, that power must be exercised subject to its statutory limitations and that S.49(5) did not apply to defeat the capacity given by S.52(2)(b). Thus the alleged conflict did not invalidate the Official Assignee's capacity under S.52(2)(b).
Effect of S.17 and timing of sales: The Board noted that S.17 (not quoted in full in the opinion) was not inconsistent with the Official Assignee's exercise of such power. The sales in the present case had been completed by the Official Assignee before the partition suit was instituted; accordingly the Board held the appeal must fail in relation to joint family properties not included in the Bank's mortgage that had already been sold by the Official Assignee.
Unsold properties and partition: For unsold properties not included in the Bank's mortgage, the Board accepted that the appellants were entitled to a preliminary decree declaring a one-half share on partition. However, the Board upheld the High Court's direction that division (final partition) should be postponed until provision was made for satisfaction of the remainder of the Bank's debt and other antecedent debts of Sri Kishen Das, unless shown to be immoral or illegal.
Rationale for postponing division: The Board reasoned that the father's power of sale exists only so long as the joint family property remains undivided; therefore the Official Assignee's capacity is similarly limited. When the family estate is divided, both assets and liabilities for which the undivided estate is accountable must be taken into account. The Board endorsed Re Balusami Ayyar as correctly stating this limitation and rejected Sita Ram v. Beni Prasad as incorrect on this point.
Pious obligation and liability of joint estate: The appellants' contention that the sons' pious obligation did not constitute a liability of the joint estate requiring provision before partition was considered and rejected. The Board accepted Brij Narain v. Mangla Prasad's description of the doctrine as resting on pious obligation but concluded that such obligation renders the liability one of the joint estate and thus it is proper to require provision for discharge of that liability on partition. Authority in Bawan Das v. Chiene and Venku Reddi supported this approach.
Correction of decree wording: The Board noted a reasonable doubt about the correctness of the list of properties in the High Court's decree and agreed with the parties that the decree should be varied in its operative wording to declare the appellants' share as one-half “in the properties not subject to the Bank's mortgage and remaining unsold” with the direction that division be made only after provision for satisfaction of the remainder of the Bank's debt and such other antecedent debts unless shown immoral or illegal.

Holding and Implications

Holding:

APPEALS DISMISSED. The Board advised that the decrees of the High Court should be affirmed subject to the variation in the wording of the preliminary decree (to specify the declaration applies to properties not subject to the Bank's mortgage and remaining unsold, and that division be deferred until provision for the Bank's remainder debt and other antecedent debts is made unless shown immoral or illegal).

Direct implications for the parties:

The appeals fail in respect of joint family properties (not included in the Bank's mortgage) that had already been sold by the Official Assignee; the purchasers' positions are not disturbed (certain respondents who had appeared were to be dismissed from the appeals and costs awarded against the appellants to some purchasers).
For unsold, non-mortgaged properties the appellants receive a preliminary decree declaring their one-half share, but final division (partition) is to be postponed until provision is made for satisfaction of the remainder of the Bank's debt and other antecedent debts of Sri Kishen Das not shown to be immoral or illegal.
Costs: The Bank of Upper India is to be paid its costs in these appeals by the appellants. The appellants must pay the costs of certain respondents (Nos. 4 and 8 and Sheo Baran Singh as representing No.12); Nos. 5 and 7 did not appear so no question of their costs arises.

Broader implications / precedent: The opinion applies and endorses existing decisions (for example Re Balusami Ayyar, Bawan Das v. Chiene, and Brij Narain v. Mangla Prasad) to the facts. The decision resolves the disputes in these appeals by applying established principles rather than announcing a novel general rule; no new broader precedent was stated beyond the application and clarification of earlier authorities as described above.

Disposition

Appeals dismissed; decrees of the High Court affirmed subject to the stated variation in the preliminary decree wording. Costs ordered as described above.

Show all summary ...

Lord Thankerton:-

These are consolidated appeals from two decrees of the High Court of Judicature at Lahore, dated 20th January 1926, which, subject to some modification, affirmed two decrees of the District Judge of Delhi, dated 13th April 1916, dismissing two suits instituted by the present appellants, who are the two sons of Lala Sri Kishen Das, originally respondent 1 to these appeals. Sri Kishen Das, along with the appellants, formed a joint Hindu family, of which he was the managing member. The joint family owned considerable immoveable property, and a business, the headquarters of which were at Delhi. On 5th April 1913, Sri Kishen Das mortgaged to respondents 3, the Bank of Upper India Limited, a large part of the immoveable property owned by the joint family, in security of his indebtedness to the Bank. On 26th September 1913, Sri Kishen Das was adjudicated insolvent by the High Court of Bombay under the Presidency Towns Insolvency Act, 1909.

On 14th April 1914, the Bank instituted a suit in the Court of the District Judge at Delhi for recovery of their mortgage debt, amounting to Rs. 4,64,021-15-8 by sale of the mortgaged properties, against Sri Kishen Das, the present appellants, who were then minors, and the Official Assignee, Bombay. The present appellants contested the suit. The Official Assignee also contested the suit, but later he admitted the Bank's claim. On 2nd October 1914, the present appellants, then minors, through a next friend instituted the first suit now under appeal at Delhi against their father, Sri Kishen Das, the Bank, and the Official Assignee, asking for a declaration that one-half of the mortgaged properties was owned by them and that to the extent of their share, the mortgage was not binding on them, and also for an injunction to restrain the defendants from selling or alienating their one-half share in the said properties. On 11th January 1915, the present appellants instituted at Delhi the second suit now under appeal against Sri Kishen Das, the Official Assignee, the Bank, and sundry purchasers of immoveable properties sold by the Official Assignee, claiming partition and a half share of the immoveable properties belonging to the joint family, two lists of which were filed by the plaintiffs, the first list setting out the mortgaged properties in dispute, and the second detailing the properties free from the mortgage.

The three suits were tried together by the District Judge, and on 13th April 1916, he delivered judgment in the partition suit and dismissed the suit; for the reasons set forth in that judgment he also dismissed the declaratory suit. On 27th April 1916, he gave decree in the Bank's suit for Rs. 4,64,021-15-8 with interest, but made no order for sale, in respect that the larger portion of the mortgaged properties had already been sold by the Official Assignee; this decree has now become final, as an appeal therefrom was dismissed in default. The present appellants appealed from the decrees of the District Judge in the declaratory suit and the partition suit to the Chief Court of the Punjab (now the High Court of Judicature at Lahore) and on 20th January 1926, the High Court delivered a judgment disposing of both appeals. In the declaratory suit a decree was made affirming the dismissal of the suit by the District Judge. In the partition suit it was ordered by decree of the same date that the decree of the District Judge, Delhi, dated 13th April 1916, dismissing the plaintiffs' suit be varied to the extent of giving the plaintiff-appellants a preliminary decree declaring their share in the unsold properties, as detailed below, (here follow particulars of nine properties) to be one-half, and directing that division shall only be made after provision for the satisfaction of the remainder of the debt due to the Bank and of such other antecedent debts of Rai Bahadur

Sri Kishen Das as the plaintiffs fail to show are immoral or illegal.

There was also a variation as to costs, which is not now material.

The present appeals are from these two decrees of the High Court, but the decision of the declaratory suit will follow the decision of the two questions raised in the appeal in the partition suit. In opening the appeals on behalf of the appellants Mr. Upjohn made clear that no question was raised by them as to the joint family properties so far as they were included in the mortgage to the Bank, whether these properties had already been sold or remained to be sold, and that the appeals related only to the joint family properties which were not included in the mortgage. As to these properties, exception was taken to the decree of the High Court in the partition suit in two respects, viz. (a) because it confined the declaration in the appellant's favour to these properties so far as unsold, and did not include those which had already been sold, and (b) in regard to the direction as to provision for the remainder of the antecedent debts.

Certain of the respondents to these appeals were only interested in the matter as purchasers of some of the properties subject to the Bank's mortgage, and, on the second day of the hearing before their Lordships, Mr. Upjohn, on behalf of the appellants, agreed that they should be dismissed from the appeals, as he was no longer challenging these sales. These respondents were respondents 4, 5, 7 and 8 in Appeal No. 23 of 1932 in the partition suit. Their Lordships held that respondents 4 and 8, who had appeared on the appeal, were each entitled to their costs from the appellants.

Another preliminary matter relates to original defendant 12 in the partition suit, Ghulam Mohi-ud Din, who was a purchaser of one of the properties, and who had died more than six months before an application was made on 4th October 1920, by the plaintiffs for substitution of his legal representatives. In fact he had died on 20th March 1918, and, in their judgment of 20th January 1926, the High Court declined to extend the time, and held that the appeal had abated, and rejected the application. The legal representatives of Ghulam Mohi-ud-Din, respondent 12 in Appeal No. 23 of 1932, are called, along with Sheo Baran Singh who has judicially established his right of pre-emption of the property purchased by Mohi-ud-Din, and who appeared in this appeal. Mr. Upjohn did not seek to press the appeal as regards this property, and the appeal falls to be dismissed as against respondent 12, with costs to the respondent Sheo Baran Singh.

Turning to the first contention of the appellants, it is clear that Sri Kishen Das, as father of the two appellants, had the power, so long as it remained undivided, to sell or mortgage the joint family property, including the interest of the appellants, for payment of his own debts, provided such debts were antecedent and were not incurred for immoral or illegal purposes. It is also clear that his interest in the joint family property vested in the Official Assignee, who would be entitled to obtain partition. But the question in these appeals relates to the power of the Official Assignee to deal with the interest of the appellants. Under a previous decision of this Board, in a pre-emption suit instituted by the present appellants, it has been held that the adjudication order did not vest in the Official Assignee the appellants' interest in the family property : Sat Narain v Behari Lal, 1925 PC 18=84 IC 883=52 IA 22=6 Lah 1 (PC). But the Official Assignee claims the right to exercise the insolvent's power, as father, to sell the joint family property for payment of the insolvent's antecedent debts, so far as not incurred for immoral or illegal purposes, by virtue of the provisions of S. 52 (2) (b), Presidency Towns Insolvency Act. S. 52 provides as follows :

52. -(1) The property of the insolvent divisible amongst his creditors, and in this Act referred to as the property of the insolvent, shall not comprise the following particulars, namely: (a) property held by the insolvent on trust for any other person; (b) the tools (if any) of his trade and the necessary wearing apparel, bedding, cooking vessels, and furniture of himself, his wife and children, to a value inclusive of tools and apparel and other necessaries as aforesaid, not exceeding three hundred rupees in the whole.

(2) Subject as aforesaid, the property of the insolvent shall comprise the following particulars, namely :

(a) All such property as may belong to or be vested in the insolvent at the commencement of the insolvency or may be acquired by or devolve on him before his discharge; (b) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge; and (c) all goods being at the commencement of the insolvency in the possession, order or disposition of the insolvent, in his trade or business by the consent and permission of the true owner under such circumstances that he is the reputed owner thereof :

Provided that things in action other than debts due or growing due to the insolvent in the course of his trade or business shall not be deemed goods within the meaning of Cl. (c):

Provided also that the true owner of any goods which have become divisible among the creditors of the insolvent under the provisions of Cl. (c) may prove for the value of such goods.

Their Lordships agree with the decision of the High Court that the claim of the Official Assignee is well founded, and that, under S. 52 (2)(b) the capacity to exercise the insolvent's power to sell the joint family properties for his antecedent debts, these not having been incurred for immoral or illegal purposes, vested in the Official Assignee. The decision of the High Court was based on two decisions of the Madras High Court, and two decisions of the High Court of Allahabad, to which it is unnecessary to refer further : Official Assignee of Madras v. Ramchandra Iyer, 1923 Mad 55=68 IC 898=46 Mad 54, Re Sellamuthu Servai, 1924 Mad 411=80 IC 108=47 Mad 87=46 MLJ 86 (SB), Bawan Das v. Chiene, 1922 All 79=64 IC 976=44 All 316=20 ALJ 155, Sita Ram v. Beni Prasad, 1925 All 221=84 IC 790=47 All 263=22 ALJ 1097: of. also Re Balusami Ayyar, 1928 Mad 735=112 IC 541=55 MLJ 175=51 Mad 417 (FB). It was contended for the appellants that the limited class of creditors, who would benefit by such a sale, was not among those classes whose debts are expressly given a priority by S. 49 of the Act, and that to distribute the proceeds of sale among such a limited class would be in contravention of sub-s. 5 of S. 49, which provides that:

Subject to the provisions of this Act, all debts proved in insolvency shall be paid rateably according to the amounts of such debts respectively and without any preference.

But if, as their Lordships hold, S. 52 (2) (b) entitles the Official Assignee to exercise the power in question, it is clear that such power must be exercised subject to its limitations, and the provisions of S. 49 (5) do not apply. Equally, the provisions of S. 17 are in no way inconsistent with the exercise of the power of sale subject to its limitations. The sale by the Official Assignee in the present case were completed before the partition suit was instituted.

Accordingly their Lordships are of opinion that the appeal fails in regard to the joint family properties which are not included in the Bank's mortgage and which have been sold by the Official Assignee.

As regards the unsold properties, not included in the Bank's mortgage, it is not disputed that the appellants are entitled to the preliminary decree declaring their share, on partition, to be one-half, but the appellants maintain that the High Court erred in directing that division should only be made after provision for satisfaction of the remainder of the insolvent's antecedent debts, in so far as the appellants fail to show that they are immoral or illegal. In their Lordship's opinion the High Court have rightly made the direction. The father's power of sale for his debts exists only so long as the joint family property is undivided, and the capacity of the Official Assignee must be similarly limited. In their Lordships' opinion, this was rightly held in Re Balusami Ayyar, 1928 Mad 735=112 IC 541=55 MLJ 175=51 Mad 417 (FB), and the decision in Sita Ram v. Beni Prasad, 1925 All 221=84 IC 790=47 All 263=22 ALJ 1097, to the contrary effect, was incorrect. When the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. The appellants maintained that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts, unless they were immoral or illegal, but that these debts were not a liability of joint estate, for which provision required to be made before partition. This argument was sought to be supported by the judgment of this Board delivered by Lord Dunedin in Brij Narain v. Mangla Prasad, 1924 PC 50=77 IC 689=51 IA 129=46 All 95 (PC) which was a case dealing with the rights of the father's mortgagee or creditor against the joint estate in the hands of the sons. That decision was important in that it corrected certain obiter dicta in the earlier decision of this Board in Sahu Ram Chandra v. Bhup Singh, 1917 PC 61=39 IC 280=44 IA 126=39 All 437 (PC), and made clear, inter alia, that the doctrine was not based on any necessity for the protection of third parties but was based on the pious obligation of the sons to see their father's debts paid, and also that it was immaterial, to the liability of the family estate whether the father was alive or dead. There can be no doubt that it is a liability of the joint estate, and, in the opinion of their Lordships, it follows that it is right to make provision for discharge of this liability on partition of the joint estate. It was so decided in Bawan Das v. Chiene, 1922 All 79=64 IC 976=44 All 316=20 ALJ 155; reference may also be made to Venku Reddi v. Venku Reddi, 1927 Mad 471=100 IC 1018=50 Mad 535=52 MLJ 387 (FB) at 539. Accordingly, the appellants' second argument must be rejected.

There seems to be a reasonable doubt as to the correctness of the list of properties in the decree of the High Court, and parties were agreed that the matter would be safeguarded by varying the decree in so far as it gives the appellants a preliminary decree so as to read,

"a preliminary decree declaring their share in the properties not subject to the Bank's mortgage and remaining unsold to be one-half, and directing that division shall only be made after provision for the satisfaction of the remainder of the debt due to the Bank and of such other antecedent debts of Rai Bahadur Sri Kishen Das as the plaintiffs fail to show are immoral or illegal."

Their Lordships will accordingly humbly advise His Majesty that the appeals should be dismissed, and that the decrees of the High Court, subject to the variation above stated, should be affirmed. The respondents, the Bank of Upper India, will be paid their costs in these appeals by the appellants. The position of respondents 4, 5, 7, 8 and 12 has been referred to. As regards their costs : Nos. 5 and 7 did not appear, so no question of their costs arises; the appellants must pay the costs of Nos. 4, 8 and of Sheo Baran Singh as representing No. 12, with separate sets of costs to each.

Appeals dismissed.