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IN THE HIGH COURT OF ALLAHABAD
Deoki Nandan, J.
SUSHIL KUMAR SEN - Appellant
Versus
RAM CHANDRA SHARMA - Respondents
Second Appeal 3139 Of 1968
Decided On : 11/18/1981
PARTITION - Mortgage - Subrogation - Danpatra - Cancellation - Share of plaintiffs - Contribution - Preliminary decree.
Fact of the Case:
The plaintiffs filed a suit for cancellation of a Danpatra executed by the second defendant in favor of the first defendant in respect of their 1/3rd share of two houses and for partition of their 1/3rd share therein and separate possession over the same. The second defendant transferred on his own behalf and on behalf of the two plaintiffs, who were minors at that time, the half share possessed by the three of them in the two houses in suit by a Danpatra dated 22nd June, 1945 to the first defendant. The validity of this alienation has been impugned on the grounds that the second defendant had no power to execute it on behalf of the plaintiffs and that it was illegal and was obtained by fraud. The first defendant claimed that he spent Rs. 1557/6/- on costs besides the sum of Rs. 3,000/- paid in cash to Smt. Uttama Kuari. He thus redeemed the property for Rs. 4,557/6/- only because of his good relations with Smt. Uttama kuari, although her claim was very large. After redeeming the property the first defendant found that the two houses had fallen into disrepair and unfit for habitation. He spent Rs. 3283/11/3 on repairs and Rs. 1226/15/- on installation of electric fittings therein.
Finding of the Court:
The court held that the share of the two plaintiffs together in both the properties in suit is declared to be 1/3 of the whole. The plaintiffs are entitled to a division and separate possession over their 1/3 share in the properties subject to contribution of a 1/3 share in the amount which is proved by the first defendant Ram Chandra Sharma (since deceased) to have been properly paid for the redemption of the mortgage of Smt. Uttam Kuari in Suit No. 20 of 1947, and the expenditure properly incurred by him in prosecuting that suit, as also the expenses properly incurred by him in the repairs and maintenance or essential improvements of the mortgaged property and their preservation since the date of the impugned Danpatra dated 22nd June, 1945 up to the date of this decree, provided that the claim for contribution of the expenditure said to have been incurred on items Nos. 1 to 4 and 7 detailed under point No. 5 of the judgment of the lower appellate court and which has already been rejected, shall not be allowed to be reagitated.
Issues: 1. Whether the proper share of the two plaintiffs together in house No. 1 is 1/3 of the whole or 2/9 of the whole. 2. Whether the plaintiffs must be relegated to a suit for redemption of Smt. Uttam Kuaris mortgage, against the first defendant Ram Chandra Sharma, for a division of their 1/3 share in the two houses and separate possession over the same.
Ratio Decidendi: 1. The mortgage being extinguished by redemption in Suit. No. 20 of 1947 at a time when the plaintiffs share in the property was not established and the contesting defendant was to all intents and purposes the sole owner or mortgagor of the property, there could be no question of redeeming the mortgage once over again by the plaintiffs, and that the plaintiffs could claim contribution on the principle of Section 51 of the T. P. Act. 2. The contesting defendant is fully entitled to prove the amounts spent by him to claim contribution to the extent of the plaintiffs share in the property as declared by the preliminary decree in the proceedings for ascertainment and division of that share by the final decree and this is what the preliminary decree should further declare and direct.
Final Decision: Appeal allowed. Preliminary decree set aside and a preliminary decree for partition passed. Plaintiffs entitled to a division and separate possession over their 1/3 share in the properties subject to contribution of a 1/3 share in the amount proved by the first defendant to have been properly paid for the redemption of the mortgage and the expenditure properly incurred by him in prosecuting that suit, as also the expenses properly incurred by him in the repairs and maintenance or essential improvements of the mortgaged property and their preservation since the date of the impugned Danpatra dated 22nd June, 1945 up to the date of this decree.
( 1 ) THIS is a plaintiffs second appeal in a suit for cancellation of a Danparta dated 22nd June, 1945 executed by the second defendant Hirendra Nath Sen in favour of the first defendant Ram chandra Sharma in respect of the plaintiffs 1/3rd share of the two houses specified at the foot of the plaint and situated at Mohalla Alinagar of the City of Gorakhpur and for partition of the plaintiffs 1/3rd share therein and separate possession over the same.
( 2 ) THE plaintiffs Sushil Kumar Sen and Arun Kumar Sen and the third defendant Hirendra Nath sen are the sons of Baidya Nath Sen. The third defendant Shambhoo Nath Sen and Baidya Nath sen were brothers being the sons of Kanti Chandra Sen. The family was governed by the dayabhaga School of Hindu Law. Kanti Chandra Sen was a reputed physician of Gorakhpur and was the owner in possession of the two houses in suit. He died in the year 1918. Shambhoo Nath sen and Baidya Nath Sen had mortgaged the two houses in favour of Smt. Uttma Kuari wife of baboo Bhagwat Prasad under a mortgage deed dated 13th May, 1931, for Rs. 5,950/ -. The mortgage was usufructuary and the mortgagee was put into possession of the houses. Baidya nath Sen died in the year 1936 and on his death the two plaintiffs and the second defendant became owners of a 1/3rd share each in his 1/2 share in the two houses in suit. None of them resided at Gorakhpur. The second defendant transferred on his own behalf and on behalf of the two plaintiffs, who were minors at that time, the half share possessed by the three of them in the two houses in suit by a Danpatra dated 22nd June, 1945 to the first defendant. This alienation has been impugned on the grounds that the second defendant had no power to execute it on behalf of the plaintiffs and that it was illegal and was obtained by fraud the details of which are given in the plaint. By another Danpatra dated 5th July, 1945 the third defendant Shambhoo Nath Sen also transferred his 1/2 share in the two houses in suit, to the first defendant. The validity of this danpatra was not in question obviously because the plaintiffs had no right to question the same.
( 3 ) HAVING thus become the owner of the two houses, the first defendant filed Suit No. 20 of 1947 in the Court of Civil Judge, Gorakhpur, against Smt. Uttma Kuari for redemption of the said mortgage dated 13th May, 1931. The suit was decreed and the first defendant entered into possession of the two houses. According to the plaintiffs they came to know of the Danpatra in the course of the said Suit No. 20 of 1947 and still later of the fraud practised by the first defendant. According to the plaintiffs they then asked the first defendant to put them into possession over their 2/3rd share of the 1/2 share of their father in the two houses, that is to say over a 1/3rd share in the whole but the first defendant did not comply, hence the suit.
( 4 ) THE suit was originally instituted in the Court of the City Munsif, Gorakhpur in the year 1950. The plaint was returned on the finding that on its true valuation the suit was beyond the pecuniary jurisdiction of the Court. The plaint was thereupon filed in the Court of the Civil judge, Gorakhpur on 13th April, 1953. Only the first defendant defended the suit. According to his written statement, although the form of the two transfers made in his favour was that of gift, they were in fact sales made for consideration and the true terms of the transfers were recorded in an agreement dated 22nd June, 1945 in so far as the plaintiffs and the second defendant are concerned, under which the sum of Rs. 1,200/- was paid in cash to the second defendant. The transfer in question, it was claimed by the first defendant, was made for legal necessity and by the second defendant acting honestly and in good faith for the benefit of the plaintiffs as their guardian. The plaintiffs were parties to Suit No. 20 of 1947. That suit was compromised. The plaintiffs were parties to the compro
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