MAHABIR PRASAD Vs. RADHUNATH SARAN

JUDGEMENT

(1.) This is a first appeal by the plaintiffs whose suit for possession has been dismissed by the lower Court. The plaintiffs were defendants in a suit on a hypothecation bond of 29 June 1914, brought by the defendants and the defendants obtained a mortgage-decree for Rs. 3,848 against both plaintiffs and against the property hypothecated and also a simple money decree for rupees 6,531 against plaintiff 1, alone, who is the father of plaintiff 2. In execution of that decree there was a sale of property and the plaint set out that the defendants wrongly declared the property to be ancestral and fraudulently took this proceeding and kept it concealed from the plaintiffs and that in fact the property is not ancestral. On account of this fraud the property worth Rs. 40,000 was sold for Rs. 16,000. The sale is unlawful and therefore the plaintiffs ask for possession of the property as owners as no title passed to the defendants. The written statement pleaded that the suit of the plaintiffs was barred by estoppel under Section 115, Evidence Act, and also barred by Section 47, Civil P.C., and that the defendants did not make any fraudulent representation, but that the plaintiffs themselves applied stating that the property was ancestral. The facts are that in the execution proceedings the defendants decree-holders applied for the sale of the property as non-ancestral. The judgment-debtors made an application on p. 53 of printed book stating that the property attached was the ancestral property of the judgment, debtors from generation to generation. This application was on behalf of both the judgment-debtors who are the present plaintiffs. An inquiry was made from the Collector as the order sheet show and it was reported that the property in the present plaint was ancestral, other property being non-ancestral. The objectors applied to produce documentary evidence to establish the fact that their property was ancestral and the case was postponed. Finally the pleader for the decrees-holder stated that the shares in the four villages in the present plaint were ancestral and might be sold as an ancestral property. Accordingly the Civil Court found that the shares in question were ancestral property and directed the Collector to sell these shares as ancestral property. Now it is in regard to these shares that the present plaintiffs have produced sale-deeds to show that they were purchased subsequent to 1860, and therefore that these shares do not come within the definition of "ancestral property."

(2.) It is pleaded by defence that the plaintiffs are estopped under Section 115, Evidence Act, from making this pleading in view of the fact that in the application on p. 53, dated 19 June 1926, the plaintiffs stated that the property attached was-ancestral. Learned Counsel argued that there would be no estoppel on a question of jurisdiction. But we consider that, there is estoppel on the question as to whether the property was ancestral and we consider that the plaintiffs are estopped from pleading now that the property was not ancestral. That being so the plaintiffs cannot establish that the Collector did not have authority to sell this property as ancestral property. The second question which was raised was the subject of the sixth ground of appeal-which stated that the sale of the properties effected without attachment in execution of the simple money decree was illegal and vitiates the sale. To appreciate-this argument we must refer to the details of the auction-sale by the Collector printed on p. 80 of the paper book. This shows that lot No. 78 was sold for Rs. 7,000. This is the mortgaged property seven annas share in mauza Sarai Kaldas. The amount of the mortgage-decree was under Rs. 5,000 at the time of the sale and therefore learned Counsel claims that the mortgage-decree was entirely satisfied by the sale of this seven annas share in Sarai Kaldas. But the Collector proceeded to sell lot No. 79 which was seven annas share mortgaged in Chak Sadbo, and also lot No. 80 which was six annas share mortgaged in mauza Gobardhanpur. These two lots were sold for Rs. 2,000 each. Now the shares in these two lots had not been attached because they were shares-subject to the mortgage-decree.

(3.) The property which had been attached under the simple money decree consisted of one anna share in these two villages and also one anna share in Sarai Kaldas and eight annas share in mauza Sidhnath. The point which, is taken by learned Counsel is that the sale of the shares of six annas in Gobardhanpur, and seven annas in Chak Sadho was altogether illegal and void and conveyed no right or title whatever because there had been no attachment and therefore they could not be sold under the simple money decree and further as the mortgage-decree was satisfied by the sale of the first lot there was no necessity to sell these two further lots for satisfaction of the mortgage-decree. In this connexion learned Counsel referred to the provisions in Order 21, Rule 64, which says: Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold.