Judgement

Appeal (No. 81 of 1922) from a decree of the High Court (September 22, 1920) reversing an order of the Subordinate Judge of Thana (October 5, 1918).

In the circumstances stated in the judgment of the Judicial Committee, Dattatraya Gandhi applied on October 3, 1918, to the Subordinate Judge to withdraw from Court the sum of Rs. 4000, which he had paid in on August 22, 1918, under a decree made in Suit No. 57 of 1914, wherein the appellant was a defendant. The respondent by a counter-application opposed the withdrawal, on the ground that it could not be made in defeasance of his rights ; he prayed that he might be brought on the record as a party to the execution proceedings, and offered either to pay the money to the defendant, the present appellant, or to repay it to Dattatraya Gandhi.

The Subordinate Judge made an order giving Dattatraya Gandhi leave to withdraw the money, which he did.

Upon appeal to the High Court (Macleod C.J. and Fawcett J.) the order was reversed, and a decree was made giving the present respondent liberty to deposit the amount previously brought into Court by Dattatraya Gandhi within eight days from the date when he had notice that the papers had been sent back to the Lower Court, and that such payment should be treated as made within six months from the decree made in the suit.

1924. Feb. 14. Sir George Lowndes K.C. and E. B. Raikes for the appellant.

Dunne K.C. and G. M. McNair for the appellant.

[Reference was made to the Code of Civil Procedure, 1908, ss. 47, 141, 146, 151, and Order xxi., r. 1 (a); the Transfer of Property Act, 1882, ss. 54, 65 ; also to Badri Narain v. Jai Kishen Das (( 1894) I.

L. R. 16 All. 483.); Sheo Narain v. Chunni Lal (( 1900) I. L. R. 22 All. 243.); Paramananda Das v. Mahabur Dossji (( 1896) I. L. R. 20 Mad. 378.); and Muhammad Masihullah Khan v. Jarao Bai. (( 1915) I. L. R. 37 All. 226.)]

March 13. The judgment of their Lordships was delivered by

LORD SALVESEN. This is an appeal from a decree of the High Court of Bombay of September 22, 1920, which set aside an order of the Subordinate Judge of Thana, dated October 5, 1918.

The appellant derives such title as he has to the property in dispute from the widow of Balabhai, a Mahomedan resident in Bombay. When she sold the property, the widow professed to act for herself and as guardian of her minor children. The transaction was, however, challenged by Banemiya, the only son of Balabhai then surviving, and by others representing the rest of the family, by a suit raised in 1914 in the Thana Court, in which they claimed that the sale by the widow should be set aside in so far as the shares of the son and daughters were concerned. In that suit, which ultimately came to depend before the High Court of Bombay, Banemiya and his co-plaintiffs, on February 26, 1918, obtained a decree against the appellant, which is thus expressed "The plaintiffs will have six months within which to pay their share, i.e., 10/16th of the Rs. 1250 and the Rs. 1200, with added interest as directed in the lower Courts judgment. If within six months the plaintiffs pay the sums due from them they are to recover possession of the land in suit. But if within that time the plaintiffs do not pay the sums due from them then the suit to stand dismissed with costs."

Prior to the date of this decree Banemiya had, on July 21, 1915, mortgaged his share of the property to one, Dattatraya Gandhi, for Rs. 2000. On September 15, 1916, he had sold a 5 annas share to Narayan, a brother of Gandhi, who in turn transferred it to one Motilal Ratansi. Subsequent to the decree Banemiya contracted, on June 10, 1918, to sell to the respondent all his remaining interest in the property and undertook to obtain an assignment in his favour of the right, title and interest of the heirs of his sister who had died. By these transactions Banemiya, for himself and the other plaintiffs (assuming he was authorized to act for them), deprived himself of all interest in the conditiona