GUR NANAK PRASAD Vs. JAI NARAIN LAL

JUDGEMENT

(1.) SARABJIT and Sheo Gobind sold the property in suit to Bhaiya Rajpal Singh on the 7th of December, 1852, for Rs. 275. On the same date Bhaiya Rajpal Singh entered into an agreement with the vendors that on payment of Rs. 200, in any Jeth, he would recovery the property to the vendors. After Bhaiya Rajpal Singh s death his son, Suraj Bali, mortgaged the whole of that property along with some other property nominally to Rabsa Kunwar, but really to her husband. Suraj Bali also made a gift of that property to Musammat Adhar Kunwar. Jai Narain and Raghunath Prasad, the representatives in interest of SARABJIT and Sheogobind, instituted a suit for redemption of the property transferred on the 7th of December, 1852. In that suit they mppleaded Adhar Kunwar and Rabsa Kunwar, whose husband was then dead. The suit was defended by Adhar Kunwar only and Rabsa Kunwar did not put in any appearance. The court of first instance gave the plaintiffs a decree on the 30th of September, 1907, entitling them to redeem the property on payment of Rs. 200 to Adhar Kunwar. Adhar Kunwar appealed against that decree, but Rabsa Kunwar took no steps in appeal. The appeal was withdrawn, and the result was that the decree of the court of first instance entitling the plaintiffs to redeem on payment of Ks. 200 to Adhar Kunwar became final. Musammat Rabsa Kunwar died, and the reversioners of her husband took possession of the property which was in possession of Rabsa Kunwar. The plaintiffs, decree-holders, deposited the money in court. The reversioner, Gur Nanak objected on the ground that, as he was no party to the decree, it could not be enforced against him. The objection was accepted by the court of first instance, which rejected the application for execution. In appeal the lower appellate court came to the conclusion that the decree was fairly and properly obtained against Rabsa Kunwar and that the reversioners were bound. It therefore allowed the appeal and sent back the case to the court of first instance for decision on the merits. The reversioner comes to this Court in appeal, and it is urged by his learned vakil that as the widow did not protect the estate of her husband by contesting the suit for redemption, the decree is not binding on the reversioner. In support of the proposition he refers to the following cases: Nugender Chunder Ghosh v. Sreemutty Dos see (1867) 8 W.R. P C. 17; Sant Kumar v. Deo Saran (1886) I.L.R. 8 All. 365; Sachit v. Budhua Kuar (1886) I.L.R. 8 All 429; Jevan Lalju v. Vetra (1903) 5 Bom. L.R. 885 and F.A. No. 384 of 1910 decided by a Bench of this Court, on the 21st of February, 1912.

(2.) EVERY case has to be decided with reference to its own particular facts and the rule laid down in one case does not apply to another case when its facts are different. In the case before us the representatives of the mortgagors did all they could to have the suit fairly and properly tried. They honestly disclosed all the facts which were necessary for the trial of the case. They made Rabsa Kunwar a defendant, and they had the notice served upon her. It was beyond their power to make her contest the suit and she did not do so because she, as a sub-mortgagee, had no valid defence against them, and there is nothing on the record, and nothing is now put forward, to show that she bad any good defence which she neglected to put forward against the plaintiffs. In these circumstances we are of opinion that the decree which the plaintiffs obtained was obtained fairly and properly and was binding on the reversioner, and the mere fact that the widow did not contest the suit is no reason to render the decree ineffectual against the reversioner. There is no provision in the law of British India under which a plaintiff can force a widow to contest his claim, and, in the absence of such provision, to hold that a decree properly and honestly obtained by a plaintiff against a Hindu widow is not binding on a reversioner unless the suit has been actually contested by the widow is to cast upon the plaintiff a duty which it is impossible for him to perform. The reversioners have their remedy, if any, against their own mortgagors. The result is that we dismiss the appeal with costs.