Special Appeal from a decree passed by the Judge of Purneah, affirming that of the Subordinate Judge of that district.
The facts of this case are as follows:—Nobo Kishore Chowdhry and Juggadanund Chowdhry were uterine brothers, joint and undivided. The former died childless, leaving a widow, Annapurnah; the latter left one son, Gour Nath Chowdhry, who became entitled in possession to his father's 8-annas share, and in reversion on the death of Annapurnah to the other 8-annas. This was the state of matters on the 6th of May 1862. On that day a patni lease was granted by Annapurnah to one Karoo Lall Thakoor, which, after some litigation, was held to be valid to the extent of the widow's interest in the 8-annas share. At the same time the permanent settlement of the whole 16-annas was under consideration, and was finally concluded with Gour Nath and Annapurnah. At a sale in execution of a money-decree against Annapurnah, Karoo Lall purchased the widow's interest in the 8-annas, and had his name substituted for hers in the Collectorate. On the 15th of February 1869, at a sale in execution of a decree against Gour Nath, the entire interest of Gour Nath in the 16-annas was purchased by the sons of Karoo Lall, who had their names substituted for that of Gour Nath in the Collectorate. They afterwards failed to pay Rs. 33, the Government revenue of the mehal, which was in consequence put up for auction on the 22nd of August 1870 and brought by one Shib Pershad Thakoor, a cousin of the sons of Karoo Lall, who lived with them in the same house. About this time Gour Nath died, leaving the plaintiffs, his sons, him surviving, and some time afterwards, Annapurnah died on the 22nd of February 1871. This suit was instituted against the sons of Karoo Lall and against Shib Pershad Thakoor for possession of the 8-annas held by the widow, and for means profits, on the ground of fraud. The suit was dismissed in both the lower Courts. Plaintiff then brought this special appeal.
Baboo Kally Mohun Dass, and Baboo Juggadanund Mookerjea, for the Appellant.
Baboo Gopal Lall Mitter, Baboo Chunder Mudhub Ghose, Baboo Hem Chunder Banerjea, and Baboo Taruck Nath Sen, for Respondant.
Judgment of the High Court (1) is as follows:—
??? plaintiff, Chunder Nath Chowdhry, brought this suit for ??? of recovering possession of immoveable property to ??? he was entitled, as heir and reversioner under the Hindoo ??? the death of Mussamut Annapurnah Chowdhrain, widow ??? Kishore. It appears that Juggadanund, paternal ??? of the plaintiff, and Nobo Kishore had been jointly entitled ??? property in question, and that on the death of Nobo Kishore ???, Annapurnah, succeeded as widow to his interest. In the ??? of Annapurnah, Karoo Lall Thakoor, father of the ???, obtained from her a putnee talook of her ???, and, it is said, took possession of the entire mehal, ??? that Gour Nath Chowdhry, father of the ???, also had a share in the property. A dispute took place ???, and there was a conflict as to the settlement; but ??? the settlement was made by the Collector with Gour ??? with Annapurnah as widow of Nobo Kishore. There ???, litigation as to the validity of the putnee granted by ??? to Karoo Lall, which ended with a declaration that ??? was good for the lifetime of the widow and not further. ??? a decree having been obtained for money against ??? Annapurnah, her right, title, and interest were ??? and sold in execution, and purchased in the name of Karum ??? Mookhtear; and there seems to be no doubt that the ??? was made on behalf of the defendant. There was also ??? against Gour Nath; and, in execution of the decree ??? him, the execution-creditor procured the sale of his ??? rights in the property in the hands of Annapurnah. ??? happened, however, that Annapurnah survived Gour Nath, ??? of such right consequently took nothing. As the ??? to which the present suit relates was wholly in the ??? of Karoo Lall after the death of Annapurnah, it is ??? that he fraudulently made a default in the payment of ???, the Government revenue due, and allowed the property ??? up to sale, and thereupon it was purchased by Shib Pershad, the third defendant, who is admitted to be cousin, and ??? to be mere furzi for the other defendants. Under these circumstances, the plaintiff contends that he is ??? recover this property from the hands of the defendants, ??? sues to recover it. The defendant Thirthanund, for himself ??? his younger brother, put in one answer; and Shib ??? another. Both contended that Shib Pershad was an ??? person distinct from the principal defendant, and had ??? purchase for himself; and they urged that the property having sold for arrears of Government revenue, the purchase by shib Pershad could not be impeached. Both the Courts below ??? dismissed the suit. The Judge, in the third paragraph of his ???, says:—“It is quite unnecessary to go at length ??? questions of limitation, &c., which the Subordinate ??? discussed; it seems to me that the revenue sale as a bare ??? itself utterly bars this suit. He then goes on: “In the first ??? when it occurred, it may be doubted whether Thirthanund ??? person responsible for the revenue, for he was merely Annapurnah's putnidar, and, at the instance of the father of the ??? a competent Court had declared that the putni title could ??? last for Annapurnah's life time. According to plaintiff's ??? allegation, she died on the 21st February 1869, and the ??? themselves were, therefore, rightful reversioners in 1870, ??? the sale took place and the arrears fell due. But, be ??? may, there is no sort of privity as between joint holders for ??? the shares of the revenue of an estate; and, whatever ??? have been Thirthanund's motives, I do not think that his ??? default can be questioned. The plaintiffs had every right ??? chance of coming forward and looking after themselves.” ??? Judge has omitted to notice that in the first place this ??? was unquestionably in the hands of Karoo Lall, father ??? defendant Thirthanund, at the time of Annapurnah's death. ??? also has forgotten that on the occurring of the default, ??? the property was sold, the plaintiff came forward and asked ??? allowed to put in the Government revenue and have ??? stayed; which, for what reason it is difficult to understand ??? Collector disallowed. Now it seems clear that, if the ??? succeeded in proving that the principal defendant's father ???