Mr. Ameer Ali :-

These two consolidated appeals from a judgment and two decrees of the High Court of Calcutta, bearing date the 22nd July, 1913, arise out of two suits brought by the plaintiff-respondent in the Court of the Subordinate Judge of Darbhangah on the 8th July, 1907. The object of both suits was to recover possession of certain landed property alleged to have been improperly alienated during the plaintiff's minority by one Chatter Pandey, purporting to act as his guardian.

The facts on which the two actions are based are fully set forth in the judgment of the High Court, It is not necessary therefore to give more than a bare outline.

The plaintiff-respondent is admittedly the present Mahant of the Bairagi Asthal of Lowthwa, in the district of Darbhangah. His predecessor, Janki Das, died in 1894. Before his death he appears to have appointed the plaintiff (his nephew by blood relationship) his successor to the office of Mahant, and it is alleged, and not controverted, that his nomination was confirmed, in accordance with the custom governing the succession to the Mahantship, by the Mahants of the neighbouring Asthals. It is not disputed that at the time of Janki Das' death the plaintiff was a minor and that in consequence thereof Janki Das had, by a testamentary document executed shortly before, appointed Chattar Pandey as his guardian. Chattar obtained probate of Janki's will on the 6th February, 1894, and from that time purported to act as the guardian of the minor and manager of the Asthal property.

It is quite clear that for some years before his death Janki Das was heavily involved in debt. On the 29th January, 1885, he had executed a mortgage in favour of one Tej Narain Roy in respect of six annas of the village of Majhowra for Rs. 5,500. On the 31st May, 1889, he had created a mortgage in favour of one Ram Narayan Roy, in respect of four annas of Majhowra for a sum of Rs. 3,500 and a third also in favour of Ram Narayan for Rs. 2,605 on the 17th May, 1892, in respect of another share of the same village. All three mortgagee were outstanding at the time of his death, though on the first a sum of Rs. 9,000 is said to have been repaid, leaving a balance of something like 6,000 rupees. For the realisation of this amount, the defendants to the first action, who are representatives of Tej Narain Roy, the mortgagee under the first deed, brought a suit on the 20th February, 1899, against the present plaintiff as the legal representative of Janki Das. The plaintiff (defendant to that action), being a minor at the time, was sued as such under the guardianship of Chattar Pandey. Before, however, any defence was entered, Chattar entered into a compromise with the mortgagees by which, in consideration of the remission by them of Rs. 600, he consented on behalf of the minor to a mortgage decree against the six annas share of the village of Majhowra that had been mortgaged to Tej Narain Roy. The decree of the Subordinate Judge embodying the terms of the compromise bears date the 27th April, 1899.

Three years later, on the 16th June, 1902, Ram Narayan Roy brought a suit on the second mortgage for the realisation of this debt, which ended similarly in a decree based on a compromise entered into by Chattar Pandey. This decree bears date the 21st July, 1902. Subsequently Ram Narayan Roy obtained a decree absolute for sale, and in fact initiated proceedings to have the mortgaged property sold under process of the Court.

It is stated that, although no proceedings had actually been taken to enforce the third mortgage, an action was threatened and in consequence thereof an agreement was arrived at between the creditors and Chattar Pandey.

In order to pay off these liabilities Chattar Pandey, on the 19th July, 1905, applied to the District Judge of Tirhoot for leave to sell an eight anna share of the village of Majhowra to the two sets of purchasers whose sales are impugned in the present suits, one of whom was in fact the representative of