SHYAM BEHARI Vs. RAMESHWAR PRASAD SAHU

JUDGEMENT

(1.) This is an appeal by defendants 10 and 14 from a decree passed by the learned Subordinate Judge of Daltongunj in a mortgage suit. The suit was brought to enforce a mortgage dated 6 November 1923, executed by Gopal Bux Rai (defendant 1), Jageshwar Bux Rai (defendant 2) and Bindeshwari Bux Rai (defendant 3) to secure an advance of Rs. 4000 bearing interest at the rate of Rs. 2 per cent, per mensem compoundable annually. The property mortgaged was 16 annas of village Imli in the District of Palamau. The appellants (defendants 10 to 14) were impleaded in the suit as subsequent transferees of portions of the mortgaged property, whereas defendants 5 to 9 were impleaded as sons and grandsons of the executants. To understand the facts of this case, it is necessary to give a genealogical table showing the relationship of the defendants who were interested in village Imli:

(2.) The family, as will be seen, were descended from Sheo Bux Rai who was the owner of the Deogan estate which was an impartible estate governed by the rule of primogeniture. That estate in due course came to Ram Bux Rai and thereafter to Har Bux Rai, Kishun Bux Rai and then to Surendra Bux Rai. The junior branch of the family represented byBajmohan Bux Rai was excluded from the Deogan Estate by the rule of primogeniture; but Kishun Bux Rai when he held the Deogan estate made a khorposh grant of a number of villages including the village of Imli to Pateh Bux Rai. On the latter's death these villages became the property of his four sons, Biseswar Bux Bai-, Eame-shwar Bux Rai, Jageshwar Bux Rai and Narsin Bux Rai.

(3.) It appears that in the year 1904, these four brothers were in financial difficulties and applied for protection under the provisions of the Chota Nagpur Encumbered Estates Act (6 of 1876). Their application was acceded to and the estate was put under the management contemplated by that Act. The estate remained under such protection until 20 April 1923, when by a notification of that date the estate, which was known as the Imli Encumbered Estate, was released from the operation of the Encumbered Estates Act. In the meantime, Biseswar, Bameshwar and Narain Bux Rai had died. The estate was released to Gopal Bux Rai c (defendant 1), Jageshwar Bux Rai (defendant 2) and Bindeshwari Bux Rai (defendant 3) and Mt. Jagannath Kuar, the widow of Narain Bux Rai who was originally impleaded in this suit as defendant 4. During the pendency of the suit, however, she died, and her name was struck out from the array of parties. These four persons were described in the notification of the release of the estate as the then proprietors of the Imli estate.