Decided on May 30,1951

Girija Sankar Sukul And Others Appellant
Nayan Chandra Das And Others Respondents


Ram Labhaya, J. - (1.) THIS is an appeal from the judgment and decree of the Subordinate Judge, Cachar, dated 31 -1 -1949 by which plaintiffs' suit for a declaration of title and for confirmation or in the alternative for recovery of possession was dismissed with costs.
(2.) THE facts giving rise to this litigation are as follows : Plaintiffs are the sons of one Jagannath Sukul who had two brothers Bisweswar Prasad and Baijnath. Bisweswar had three sons. They are pro forma defendants 3 to 5. Baijnath had also 3 sons. They are pro forma defendants 6 to 8 Jagannath, father of the plaintiffs, is alive and he is pro forma defendant 9. Mangli Prasad Sukul, the father of Jagannath and his brothers, came to Assam from Uttar Pradesh more than 70 years ago. It is admitted that the family of Mongli Prosad (plaintiffs' grandfather - -the original ancestor) is governed by the Mitakshara School of Hindu Law. The plaintiffs' case was that Mongliprosad purchased the suit property from Mr. Bullen and Mr. Berry by a registered kabala dated 24 -4 -1899 for a sum of Rs. 6000. Mongliprosad died in 1918 leaving his three sons Bisweswar, Baijnath and Jagannath. The three sons inherited the properties. In 1919, the three sons of Mongliprosad mortgage the properties in suit for a sum of Rs. 7,000, which was advanced to them by Messrs. Walker Goward and Company of Calcutta. The mortgage was made on 28 -11 -1919. Thereafter Monmal Ruia and Baijnath Ruia of Calcutta purchased the rights of Messrs. Walker Goward and Company as mortgagees and obtained a decree for sale against the 3 sons of Mongliprosad, who were the mortgagors. The property was put to sale in execution of the decree and the decree -holders purchased it on 21 -1 -1935. It is alleged that they did not recover khas possession of the suit lands. There was a partition of the properties belonging to Ruia brothers. The suit property fell to the share of Monmall Ruia. Monmall died and his son Mathuraprosad sold the properties in suit to defendants 1 and 2.
(3.) THE case set up by the plaintiffs was that the original mortgage by the three sons of Mongliprosad was not for legal necessity. The joint family property, in these circumstances, could not have been mortgaged. The mortgage decree and the auction sale, therefore, were not binding on them in their capacity as members of a joint Hindu family governed by the Mitakshara School of Hindu law. They are thus entitled to a declaration of title and confirmation of possession which they claim. In the alternative, they also asked for recovery of possession.;

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