(BABU) SHEONANDAN PRASAD SINGH Vs. HAKIM ABDUL FATEH MOHAMMAD REZA

JUDGEMENT

(1.) This is an appeal from the High Court of Patna and raises a question as to the validity of an alleged compromise on appeal of a suit in which the present appellants were plaintiffs and the respondents who were not represented before the Board were defendants. It is unnecessary to go into the details of the case. The relevant facts appear to be that before the transaction in question the appellants were owners of an eight annas share in the mauza Alapur and defendant 2 Imdad Ali owned a two annas share in the same mauza. By registered deeds dated 12 July and 27 October 1921, defendant 2 conveyed a two annas share in the mauza to the plaintiffs for a total consideration of Rs. 10,896. The plaintiffs subsequently discovered that on 25 June 1921, defendant 2 had executed a mortgage in favour of defendant 1 of the whole of his interest for a loan of Rs. 2,500. There was some dispute as to the registration of this mortgage but it was finally registered on 29 July 1922.

(2.) On 2 October, 1926, the plaintiffs commenced the present suit against the two defendants alleging that the mortgage was collusive and fraudulent and its registration invalid and asking for a declaration that their interests in the property were not affected by the mortgage. Defendant 1 traversed the allegations against the mortgage and set up that the sales to the plaintiffs were collusive and fraudulent: defendant 2 alleged that the mortgage was obtained by fraud of defendant 1 and also alleged that the sales to the plaintiffs were collusive and fraudulent.

(3.) The trial Judge, the Subordinate Judge at Monghyr, decided both issues in favour of the plaintiffs, i.e., that the sale deeds were good and the mortgage was bad. Both defendants appealed to the High Court at Patna. Though the notice of appeal challenges the findings of the Judge on both points it would appear that there was no substantial attack in the High Court on the plaintiffs' title. As far as defendant 1 was concerned it was obvious that his mortgage if good was prior in date to the sale to the plaintiffs; as to defendant 2 the Judges of the High Court had no difficulty in affirming the decision of the trial Judge as to the plaintiffs' title, saying that counsel had adduced no reason for differing from it.