BIJAYESH MUKHERJI, J.

( 1 ) THIS is a suit raised on July 3, 1959, by three sons and two daughters of Moti Lall Sain, who died on November 4, 1955, principally for a declaration that a deed of mortgage bearing date November 29, 1946, for Rs. 25,000 and a deed of further charge bearing date January 19, 1949, for Rs. 5,000 executed by the first defendant, Sm. Nandrani Dassi, their mother and necessarily the widow of Moti Lall Sain, in favour of India Provident Co. Ltd. , are void.

( 2 ) THE Life Insurance Corporation of India (for short, L. I. C. hereafter) is the statutory successor-in-interest of India Provident Co. Ltd. This is why L. I. C. figures in this litigation as the second defendant.

( 3 ) IN the wake of the declaration the plaintiffs pray the Court for, two other reliefs sought, the ancillary ones, follow as a matter of course. First, the aforesaid two instruments be cancelled and delivered up. Second, L. I. C. be restrained by an injunction from enforcing the two instruments of mortgage and further charge by Suit No. 136 of 1958 raised in this Court on January 28, 1958, for just that, for enforcement thereof.

( 4 ) THE date of institution of this suit, July 3, 1959, is, therefore, one year five months and six days after the date of institution of the suit by L. I. C. , January 28, 1958. Both the suits have been heard one after another, the later suit (No. 863 of 1959) first and the earlier suit (No. 136 of 1958) thereafter; not immediately thereafter, but after an interval of some twentyfive days. And so soon I have finished delivering judgment in this suit (No. 863 of 1959), I shall deliver judgment in the other one (No. 136 of 1958) too.

( 5 ) THE case, the plaintiffs come to Court with, may best be stated by inserting a pedigree they set out in the first paragraph of their plaint - a pedigree which is not disputed at and during the trial, even though L. I. C. , the second defendant and the only contesting defendant at that, pleads, presumably by way of abundant caution, in the first paragraph of its written statement: 1. This defendant has no knowledge (of) and does not admit the allegations made in. . . . . . . . . paragraph 1 of the plaint. Here is that pedigree not in the realm of any dispute:

Madhoo Sooden Sain

Motilal - wife of Nandarani (defendant No. 1)

Dalim Kumar Sm. Lakshmi Sona Dinendra Kumar Sm. Binapani Krishna Kumar (plaintiff No. 1) (plaintiff No. 2) (plaintiff No. 4) (plaintiff No. 3) (plaintiff No. 5)

 

( 6 ) OF the five plaintiffs, those numbering 1, 3 and 5 - Dalim Kumar, Dinendra Kumar and Krishna Kumar Sains all (the padded way of writing 'sen') - are the sons of Moti Lall, since deceased. Of these three again Dalim Kumar and Dinendra Kumar are majors at the date the suit is instituted. Krishna Kumar is not. Heis a minor under the age of eighteen years, as the cause title of the plaint describes him to be. The remaining two. Lakshmi Sona and Binapani, are the daughters of late Moti Lall. Of these two again Lakshmi Sona is a major at the date of the institution of the suit. Binapani is not. She is a minor under the age of eighteen years, as the cause title of the plaint describes her to be as well. In this suit, both these minors, Binapani, plaintiff No. 4, and Krishna Kumar, plaintiff No. 5, are represented by Dalim Kumar, plaintiff No. 1, their brother and next friend. If L. I. C. has no knowledge of, and does not admit, the pedigree just set out, as noticed in the proceeding paragraph, it has equally no knowledge of, and does not admit either, such purported description given in the cause title of the plaint. The averment in para 1 of its written statement, reproduced with a little excision, is just so. The portion excised traverses this: L. I. C. 's lack of knowledge of what the cause title of the plaint bears and, therefore, no admission thereof on its part.

( 7 ) THE history of the facts which have led up to this litigation divides itself into four stages: (i) that b

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