Authored By : Lancelot Sanderson, Asutosh Mookerjee

Lancelot Sanderson, C.J.

1. In this case I think, this, appeal must be dismissed,inspite of the interesting argument which has been presented to us by thelearned Vakil for the appellant, and the short ground is that there was adecree in the mortgage suit in which the defendants were not only the widow butalso the then reversioner. The decree must, therefore, be taken to bind thewhole estate. Under that decree a sale was held and a third party purchased theestate, and it seems to me that as long as that decree stands, and until thatis set aside for good grounds, the present plaintiff cannot get behind it andmaintain the present suit. For this reason I think that the appeal should bedismissed with costs.

Asutosh Mookerjee, J.

2. I agree that this appeal must be dismissed.

3. The property in dispute belonged originally to one RamSankar Roy who died in 1887. He left a widow Brahmomoyi and a daughters sonRam Gopal Sen. On the 13th May 1896, Brahmomoyi and Ram Gopal executed, infavour of one Anant Lal Das, a mortgage of the land in suit to secure a loan ofRs. 499. In 1602, the mortgagee sued the widow and her daughters son toenforce the security and obtained the usual mortgage-decree. In execution ofthat decree, the property was sold by the Court on the 6th June 1905 and waspurchased by the Shahas, now defendants-respondents. The grandson died in 1906,and the widow died on the 21st July 1909. The plaintiff is one of five personswho upon the death of the widow succeeded to the estate of Ram Sankar Roy asreversionary heirs in their character of his sisters sons. On the 20thSeptember 1909 he instituted the present suit to recover the property from thepurchasers, on the allegation that there was no legal necessity for the loanand that the mortgage and sale took place under circumstances which do not makethose transactions binding upon him as one of the actual reversioners. TheCourt of first instance decreed the suit. Upon appeal that decree was reversedby the District Judge, and a second appeal to this Court was dismissed by Mr.Justice Roy.

4. On the present appeal preferred under Clause 15 of theLetters Patent, it has been argued by the plaintiff that the case has not beenexamined in the Courts below from the proper point of view. There is some forcein this contention and the reason is not far to seek. The case was heard by theDistrict Judge, as also by Mr. Justice Roy, before the decisions of the JudicialCommittee in Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674 : 42 C.876 : 42 I.A. 64 : 17 M.L.T. 115 : 19 C.W.N. 370 : 13 A.L.J. 223 : 2 L.W. 219 :21 C.L.J. 225 : 28 M.L.J. 565 : 17 Bom. L.R. 426 : (1915) M.W.N. 511 and BijoyGopal Mukerji v. Girindra Nath Muherji 23 Ind. Cas. 162 : 41 C. 793 : 18 C.W.N.673 : 12 A.L.J. 711: 16 Bom. L.R. 425 : (1914) M.W.N. 430 : 19 C.L.J. 620 : 16M.L.T. 68 : 27 M.L.J. 123 : 1 L.W. 533 and of the Full Bench in Deli ProsadChondhry v. Golap Bhagat 19 Ind. Cas. 273 [LQ/CalHC/1913/178] : 40 C. 721 : 17 C.W.N. 701 : 17C.L.J. 499 as to the precise effect of an alienation by a Hindu widow with theconcurrence of the then next reversioner. Prima facie, therefore, the appellantis entitled to claim a remand for re-consideration of the questions incontroversy. But upon the admitted facts, I think, it is reasonably plain thatthe plaintiff cannot possibly succeed in this litigation and a remand would beof no avail to him.

5. The mortgage, as we have seen, was executed by the widowand the then next reversioner; the suit was instituted and the decree wasobtained against them. Neither at the time of the execution of the mortgage norat the date of the institution of the suit had the plaintiff any presentinterest in the property; he was then not even the immediate reversioner; hewas only a reversioner in the second degree. He was not a party to the mortgagetransaction, nor was he a necessary party to the mortgage suit. On the otherhand, Ram Gopal Sen, the daughters son of the original owner, and the thennext reversioner, was joined as a party to the mortgage transaction and to themortgage suit, with a view to bind the entire inheritance. We have,consequently, a decree made by a competent Court in the presence of the widowand the then next reversioner; the decree directed the sale of the entireinheritance; and at the sale, which was held by the Court, the respondentspurchased the property. What then is the true position of the purchasers Inthe first place, when a mortgagee from a Hindu widow seeks to obtain a decreewhich would bind not merely the qualified interest of the widow, but the entireinheritance itself, the then next reversioner is a proper party to the suit[Nugenderchunder Ghose v. Sreemutty Kaminee Dossee 11 M.I.A. 241 : 8 W.R.(P.C.) 17 : 2 Suth. P.C.J. 77 : 2 Sar. P.C.J. 275 : 20 E.R. 92, Brij BhookunLall Awustee v. Mohadeo Dobey 17 W.R. 422; Mohima Chunder Roy Chowdhry v. RamKishore Acharjee Chowdhry 23 W.R. 174; Srinath Dass v. Hart Pada Mitter: 3 C.W.N. 637; Bhagirathi Dass v. Baleswar Bagarti 19 Ind.Cas. 686 : 41 C. 69 : : 17 C.W.N. 877: 19 C.L.J. 155;Rameswar Mandal v. Provabati Debi 25 Ind. Cas. 84 : 20 C.L.J. 23 . : 19 C.W.N.313; Indra Kuar v. Lalta Prasad Singh 4 A. 532 : A.W.N. (1882) 133; VeerabadraAiyar v. Marudaga Nachiar 8 Ind. Cas. 1072 : 34 M. 188 : 21 M.L.J. 320 : 9M.L.T. 235 : (1910) M.W.N. 799; Lloyd v. Jhones (1803) 9 Ves. 37 : 7 R.R. 147 :32 E.R. 514; Story on Equity Pleadings, Article 144; Daniell on ChanceryPractice, Chapter III, Section 3.] In the second place, a reversioner soimpleaded may well be deemed a party in a representative capacity [Vankatanarayana Pillay v. Subbammal 29 Ind. Cas. 298 : 38 M. 406 : 21 C.L.J.515 : 28 M.L.J. 535 : 17 M.L.T. 435 : 17 Bom. L.R. 468 19 C.W.N. 641 : 2 L.W.596 : (1915) M.W.N. 555 : 42 I.A. 125] and a decree fairly made in hispresence, so long as it stands, binds the inheritance, whether he or some oneelse ultimately becomes the actual reversioner when the succession opens out onthe death of the widow (Jones on Mortgage, Section 1439). The title of thepurchasers in this case can consequently be defeated by the plaintiff, onlyafter the decree, which is the root of that title, has been successfullyimpeached for fraud, collusion or other like reason. Assume, that the plaintiffmight possibly have attacked the decree on the ground of fraud, for instance,on the allegation that at the time when the mortgage was executed there wasreally no legal necessity for the loan, and yet, the widow and the immediatereversioner colluded to raise the money and to charge the inheritance so as toenable the reversioner to embark upon a speculation for his personal benefit.If this were established, the fact that the parties had gone through the formof a suit and a decree could not justly be held to prejudice the right of theactual reversioner. [Katama Natchier v. Rajah of Shivaganga 9 M.I.A. 539 : 2W.R. (P.C.) 31 : 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843]. No suchcase of fraud, however, has been charged, much less proved and the mortgage andthe decree thereon still stand unassailed; clearly so long as the decreestands, the plaintiff cannot successfully impeach the title of the defendants.In this view, the suit fails and has been rightly dismissed; consequently, thepresent appeal must be dismissed with costs.

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Ganga Narayan Duttavs. Indra Narayan Saha and Ors.(12.05.1916 - CALHC)