Sarju Prasad v. Bindeshri Bakhsh Pal Singh

Stanley, C.J and Banerji, J.:— The suit out of which this appeal arises was brought by the plaintiffs appellants, to enforce a mortgage of the 20th of August, 1895, made by the defendant, Bindeshri Bakhsh Pal Singh for himself and as general attorney of his brother's widow, Musammat Lakhpat Kunwari, in favour of Hari Singh, the predecessor in title of the plaintiffs. The property comprised in the mortgage consisted of a 6 anna 8 pie share in the village Rusia, a 2 anna 8 pie share in the village Tejpur and a 2 anna 8 pie share in a third village Nakahi Nagahi. There is no controversy in this appeal as regards the share in Tejpur. The court below has made a decree for the sale of that share and also of a 10½ pie share in mauza Nakahi Nagahi. As regards the share in mauza Rusia, it has dismissed the claim. That share was purchased at auction in execution of a decree obtained on an earlier mortgage by Musammat Jairaj Kunwar, the wife of the first defendant. The share in Nakahi Nagahi was sold by the mortgagors to the respondent, Ram Kumar Naik, on the 5th of August, 1905. What we have to consider in this appeal is whether the plaintiffs appellants are entitled to a decree for sale of the share in mauza Rusia and of the whole of the 2 anna 8 pie share in mauza Nakahi Nagahi mortgaged under the mortgage deed executed in favour of Hari Singh. As regards the share in mauza Rusia, which was purchased at auction by Musammat Jairaj Kunwari, the allegation of the plaintiffs is that this purchase was in reality by Bindeshri Bakhsh Pal Singh and that Musammat Jairaj Kunwari was only his benamidar. They say that, as the real purchaser was Bindeshri Bakhsh Pal Singh, and he mortgaged it to them, they are entitled to a decree for sale of the share in the aforesaid village. On behalf of the respondent, Musammat Jairaj Kunwari, it is urged that the claim against her is barred by the provisions of section 317 of Act No. XIV of 1882, which was the Act applicable at the date of the institution of the present suit.

We think that, in view of the ruling of the Full Bench in Ram Narain v. Mohanian, this contention must prevail. In that case it was held that a mortgagee who derived his title from his mortgagor is precluded by the provisions of the aforesaid section from bringing a suit for a declaration that the auction purchaser of the mortgaged property was the benamidar of the mortgagor and was not the beneficial owner. This is what the plaintiffs seek to do in the present suit. They seek to have it declared that Musammat Jairaj Kunwari is the benamidar of their mortgagor, Bindeshri Bakhsh Pal Singh, from whom they derive title as mortgagees. In view of that ruling the claim as against Musammat Jairaj Kunwari is not maintainable, and this part of the decree of the court below must be upheld, though not on the ground on which that court has made it.

As regards the share in Nakahi Nagabi, it was mortgaged jointly by Bindeshri Bakhsh Pal and Musammat Lakhpat Kunwari. If the mortgage was made by both of them, Ram Kumar Naik purchased the share mortgaged subject to the mortgage, but assuming that the mortgage was not a valid mortgage on behalf of Lakhpat Kunwari, the plaintiffs are in our judgement still entitled to a decree for sale of the 2 anna 8 pie share mortgaged to them. The ground on which we think the plaintiffs are entitled to such a decree is that Bindeshri Bakhsh Pal purported to mortgage the 2 annas 8 pie share on the representation that he was authorized to mortgage that share. If Musammat Lakhpat Kunwari owned part of that share, her interests were admittedly those of a Hindu widow, who succeeded to her husband, and therefore amounted only to a life interest. She is dead and therefore the life interest has determined. Ram Kumar Naik, as purchaser from her, has no longer any right to the property acquired by him under his purchase from her. That property has passed to Bindeshri Bakhsh Pal as the next reversioner. As Bindeshri Bakhsh purported to mortgage the whole of the 2 anna 8 pie share on a representation that he was authorized to make the mortgage, and as he is at present the Bole owner of the 2 anna 8 pie share, the mortgage will operate on the 2 anna 8 pie share under the provisions of section 43 of the Transfer of Property Act. In this view the plaintiffs are entitled to a decree for sale of a 2 anna 8 pie share in Nakahi Nagahi and the decree of the court below must be varied as regards the share in that village comprised in the mortgage.

We accordingly vary the decree of the court below so far that we make a decree for sale of 2 anna 8 pie share of the village Nakahi Nagahi, instead of 10⅓ pie as decreed by the court below. The appellants will get their costs of this appeal and also in the court below from Ram Kumar Naik, defendant. Musammat Jairaj Kunwari well get her costs of this appeal from the plaintiffs appellants. We extend the time for payment of the mortgage money for a period of six months from this date. In other respects we affirm the decree of the court below. The objections preferred by Ram Kumar Naik necessarily fail and are dismissed with costs.

Decree varied.