Ganga Narain Dutt v. Indra Narain Saha

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

Mookerjee, J.:— I agree that this appeal must be dismissed.

The property in dispute belonged originally to one Ram Sankar Roy who died in 1887. He left a widow Brahmomoyi and a daughter's son Ramgopal Sen. On the 13th May 1896, Brahmomoyi and Ramgopal executed in favour of one Anant Lal Das a mortgage of the land in suit to secure a loan of Rs. 499. In 1902, the mortgagee sued the widow and her daughter's son to enforce the security and obtained the usual mortgage decree. In execution of that decree, the property was sold by the Court on the 6th June 1965 and was purchased by the Sahas, now Defendants-Respondents. The grandson Med in 1906, and the widow died on the 21st July 1909. The Plaintiff is one of five persons who upon the death of the widow succeeded to the estate of Ram Sankar Roy, as reversionary heirs in their Character of his sister's sons. On the 20th September 1909 he instituted the present suit to recover the property, from the purchasers, on the allegation that there was no legal necessity for the loan and that the mortgage and sale took place under circumstances which do not make those transactions binding upon him as one of the actual reversioners. The Court of first instance decreed the suit. Upon appeal that decree was reversed by the District Judge, and a second appeal to this Court was dismissed by Mr. Justice Ray.

On the present appeal preferred under cl. 15 of the Letters Patent, it has been argued by the Plaintiff that the case has not been examined in the Courts below from the proper point of view. There is some force in this contention, and the reason is not far to seek. The case was heard by the District Judge, as also by Mr. Justice Ray, before the decisions of the Judicial Committee in Harikishen v. Kashi Pershad(2) and Bijoy Gopal v. Girindro Nath(3), and of the Full Bench in Debt Prosad Ghowdhtiri v. Golap Bhagat as to the precise effect of an alienation by a Hindu widow with the concurrence of the then next reversioner. Primâ facie, therefore, the Appellant is entitled to claim a remand for reconsideration of the questions in controversy. But upon the admitted facts, I think, it is reasonably plain that the Plaintiff cannot possibly succeed in this litigation and a remand would be of no avail to him.

The mortgage, as we have seen, was executed by the widow and the then next reversioner; the suit was instituted and the decree was obtained against them. Neither at the time of the execution of the mortgage nor at the date of the institution of the suit had the Plaintiff any present interests in the property: he was then not even the immediate reversioner; he was only a reversioner in the second decree. He was not a party to the mortgage transaction, nor was he a necessary party to the mortgage suit. On the other hand, Ramgopal Sen, the daughter's son of the original owner, and the then next reversioner, was joined as a party to the mortgage transaction and to the mortgage suit, with a view to bind the entire inheritance. We have, consequently, a decree, made by a competent Court in the presence of the widow and the then next reversioner; the decree directed the sale of the entire inheritance; and at the sale, which was held by the Court, the Respondents purchased the property. What then is the true position of the purchaser? In the first place, when a mortgagee from a Hindu widow seeks to obtain a decree which would ??? not merely the qualified interest of the widow, but the entire inheritance itself, the then next reversioner is a proper party to the suit [Nagendra v. Kamini(4), Brij Bhookhan v. Mohadeo(5), Mohima v. Ram Kishore(6), Srinath v. Haripada(7), Bhagirathi v. Baleswar(8), Rameswar v. Provabati(9), Indra Kuar v. Lalta Prosad(10), Veeraoadra v. Maragada(11) and Lloyd v. Johnes(12); Story on Equity Pleadings, Article 144; Daniell on Chancery Practice, Ch. III, sec. 3]. In the second place, a reversioner so impleaded may well be deemed a party in a representative capacity [Venkatanarayana Pillay v. Subbammal(13)], and a decree fairly made in his presence, so long as it stands, binds the inheritance, whether he or some one else ultimately becomes the actual reversioner when the succession opens out on the death of the widow (Jones on Mortgages, sec. 1439). The title of the purchasers in this case can consequently be defeated by the Plaintiff, only after the decree, which is the root of that title, has been successfully impeached for fraud, collusion or other like reason. Assume that the Plaintiff might possibly have attacked the decree on the ground of fraud, for instance, on, the allegation that at the time when the mortgage was executed, there was really no legal necessity for the loan, and yet the widow and the immediate reversioner colluded to raise the money and to charge the inheritance so as to enable the reversioner to embark upon a speculation for his personal benefit. If this were established, the fact that the parties had gone through the form of a suit and a decree could not justly be held to prejudice the right of the actual reversioner [Katama Natchier v. Raja of Shivagunga(14)]. No such case of fraud however has been charged, much less proved, and the mortgage and the decree thereon still stand, unassailed; clearly so long as the decree stands, the Plaintiff cannot successfully impeach the title of the Defendants. In this view, the suit fails and has been rightly dismissed; consequently, the present appeal must be dismissed with costs.

N.G

Appeal dismissed.