Chutterput Singh and Others vs Maharaj Bahadoor and others

Davey, J. 1. The dispute in this appeal is between the representatives of two persons named Rai Luchmiput Singh and Rai Dhunput Singh Bahadoor, and it relates to the remnant of a property formerly belonging to a Mahomedan family described as the Jawaheri family. The unfortunate survivors of the family have no interest in the result of the litigation. The facts are complicated, and the difficulty in forming a judgment upon them has been increased by the foolish attempts of both parties to assist their case by subtlety and chicane. Their Lordships are also embarrassed by the proceedings in this and in previous suits, in which the rights of the parties seem to have been dealt with in a somewhat irregular manner. 2. At the commencement of the story the family consisted of three brothers, Hadi, Taki, and Kazim. For the purpose of this appeal Hadi may be disregarded. Taki died on November 29, 1867, leaving six children, including a son named Hossein and a daughter named Zohra. 3. The family property comprised (amongst other subjects; three estates of putni tenure called respectively Nawa Nankar, Saifganj, and Mirzapore, certain shares of jagir estates described as Ramai Istimrar, and Ramgunge Pipra, and a twelve-annas zemindari right in mouzah Simraha. Passing by for the present a prior mortgage and further charge made to the Land Mortgage Bank of India, the first dealing with these properties to be noted is a mortgage of November 5, 1870, executed by Kazim on his own account and as executor on the part of Taki, then deceased, and as mokhtar on the part of Hossein, son of Taki, in favour of Luchmiput. This mortgage was for Rs. 50,000, and the security comprised Nawa Nankar, Saifganj, Mirzapore, Dhakpara, and an eight-annas share of Ramai Istimrar. It was held in the Court of first instance that all these estates were the separate property of Taki, except Dhakpara, which belonged to Kazim and is not one of the properties in question in this suit. The title to Saifganj was in the name of Hossein, but throughout these proceedings it has been treated as the property of Taki. The only issue was between Kazim and Taki, and no separate case has been made as to this property. 4. On May 28, 1873, Kazim, on his own account and as executor of Taki and also of Hossein, who had died in the interval, executed another mortgage of the same properties to Luchmiput for a lakh of rupees, out of which the previous loan was paid off. This instrument also contained a declaration that Luchmiput should be allowed "the mortgage right" which he had acquired by paying the money due to the Land Mortgage Bank. 5. Luchmiput shortly afterwards died, and his estate was thenceforth represented by his son, the appellant Chutterput, and his co-appellants other than Nathmul Golicha. 6. In December, 1879, Luchmiput''s rival, Dhunput, makes his first appearance on the scene. On the 15th of that month a bond was executed by Kazim for self and as executor of Taki, by which he purported to mortgage the same properties as were comprised in Luchmiput''s mortgages, except Kazim''s own property Dhakpara, but including Saifganj, to Dhunput to secure the repayment of Rs. 60,000 alleged to be made up of existing debts. On January 24, 1883, Dhunput commenced a suit in the Court of the District Judge at Purnea for the recovery of the sums claimed to be due on this mortgage. The defendants were the widows and infant son and daughters of Kazim, who was then deceased, described as his heirs, and all the then heirs of Taki, including the sons and daughters of his deceased sons Hossein and Abdool Baki, and including his daughter Zohra, who alone appeared and defended. On December 10, 1883, a decree was made in this suit, whereby it was ordered that the claim of the plaintiff be decreed in a modified form, namely, the plaintiff should recover from the defendants, first party, the heirs of Kazim, the whole amount of claim, with costs and interest; that the right, title, and interest of Kazim and his heirs in the property pledged as security, and in such assets as came into the hands of such heirs and legal representatives of Kazim, be held liable for payment of the decretal money; that the defendant Zohra Begum be absolved from all liabilities, and her costs with interest be charged to the plaintiff; that the other defendants, heirs of Taki, should be held personally liable for the amount of the decree; that the right, title, and interest of Taki in the estate under mortgage should not be held liable for the decree, and that these last-named defendants also should be liable for the plaintiffs costs with interest jointly with the other defendants. 7. This decree is only material in the present suit so far as it affects Taki''s estate or his heirs. It has been decided by both Courts in the present suit now before their Lordships, in which the issue was directly raised that no portion of the property comprised in Dhunput''s mortgage belonged to Kazim, and, on the other hand, Taki''s property was expressly discharged from the obligation of the mortgage by the decree. But notwithstanding this, Dhunput''s mortgage has been resuscitated in the present suit as conferring on Dhunput''s representatives a right to redeem Luchmiput''s mortgage. It has, however, been held by both Courts below that Dhunput''s mortgage bond was not a bona fide transaction. It may therefore be put aside for the purpose of the decision of this appeal. The rest of the decree it is impossible to reconcile with any intelligible view of the rights of the parties. If the suit was dismissed as against Zohra, there was no apparent reason for maintaining it against the other heirs of Taki, and, on the other hand, it is not apparent how they had made themselves personally liable for the amount of the alleged mortgage debt. Their Lordships, however, must on this appeal take the decree as it stands. This at any rate is clear, that no debt was constituted by the decree against Taki''s estate, and it was at most a money decree only against the parties themselves individually and personally. 8. In the meantime, on April 5, 1880, Chutterput, as son and heir of Luchmiput, had commenced a suit which was transferred to the High Court, Original Side, against Kazim and Hossein for realization of Luchmiput''s mortgage of May 28, 1873. The other heirs of Taki were afterwards made defendants. On February 14, 1881, a third suit was instituted by Zohra Begum in the High Court, Original Side, against Kazim and the co-heirs of Taki for the administration of Taki''s estate, and on April, 1881, a receiver in that suit was appointed. 9. In the course of the years 1885 and 1886 Chutterput bought up the shares and interests of all the heirs of Taki in the name of Nathmul Golicha, one of the appellants, except those of Syed Jan and his two sisters, the infant children of Abdool Baki, deceased, son of Taki. Nathmul Golicha was thereupon made a party to Chutterput''s mortgage suit, and on August 15, 1887, the usual mortgage decree was made in that suit, directing accounts and sale in default of payment. 10. Nathmul Golicha was also made a party plaintiff to the suit for administration of Taki''s estate, and the conduct of it was given to him. On January 23, 1889, the decree was made in the administration suit, whereby it was declared that Nathmul Golicha was entitled to 2/2 2/8 0/8 ths parts or shares of Taki''s estate, and, subject to a mortgage which had been assigned to Nathmul Golicha, Syed Jan and his two sisters were entitled to the other 68/288 ths, and usual accounts and inquiries were directed and the receiver was continued. 11. Chutterput subsequently bought the shares of Syed Jan and his two sisters in the name of Nathmul Golicha, and thus acquired the whole equity of redemption on his mortgage. The deeds of transfer of these shares are not in the record, and it does not appear on what date they were executed, but they were obviously subsequent to the decree in the administration suit, and therefore to the decree of August 15, 1887, in Chutterput''s mortgage suit. 12. Proceedings were taken for the execution of the decrees in these three suits, and the dates here become of importance. In Chutterput''s mortgage suit an order was made on December 17, 1888, for sale of the mortgaged properties, and Chutterput became the purchaser of Nawa Nankar, Mirzapore, Saifganj, and Ramai Istimrar. In the administration action on January 12, 1891, an order was made that the receiver be at liberty to sell, for the purpose of discharging certain mortgages effected by the receiver, (1.) 8 annas 16 gundahs 2 cowries and 2 krants share of the jagirs Ramgunge Pipra, &c, and (2.) 1 anna 2 gundahs and 21/2 krants share of the same jagirs and some houses in Calcutta not now in question. And on March 19, 1891, a similar order was made as regards the properties remaining in the hands of the receiver. At the sale which took place on July 29, 1891, under these orders, Chutterput became the purchaser of the shares in the jagirs Ramgunge Pipra, &c., of an additional small share in the Istimrar Ramai, &c., and of the property described as Simraha. In Dhunput''s suit Nawa Nankar, 8 annas of Saifganj, Mirzapore, the 8 annas of Ramai Istimrar, and "jagir land called Talook Ramgunge Pipra" were put up for sale on February 2, 1891, and Dhunput was declared the purchaser, and on the following 3rd of August he was declared the purchaser of (amongst other subjects) the other 8 annas shares of Saifganj, described as belonging to Taki, deceased, and of the Simraha property. 13. The Subordinate Judge has pointed out the irregularities in the proceedings for the execution of the decree in Dhunput''s suit. The most serious was that the entirety of the properties, including even the share of Zohra Begum (who was dismissed from the suit), purported to have been sold, and not merely the shares and interests of the judgment debtors themselves. The learned judges in the High Court have assumed that all proper and sufficient notices of the intended sales were served on the receiver in the administration suit, but there is no evidence of any such notices having been given, and their Lordships do not appreciate the reasons of the learned judges for making that assumption. 14. Shortly after the sale in Chutterput''s mortgage suit he was put in possession of the properties purporting to have been purchased by him, and by an order dated August 21, 1890, made in the mortgage suit and in the administration suit, the receiver was discharged as regards those properties. 15. Chutterput was also put into possession of the properties purchased by him in the administration suit. 16. Dhunput, however, claimed possession as purchaser of the same properties in his suit. After the usual criminal proceedings Dhunput and his son commenced the present action against the appellants, and by their plaint they claimed possession of as well the properties comprised in Chutterput''s mortgage bond, and particularized in Schedule Ka to the plaint, as other properties not included in the mortgage which were particularized in Schedule Ga, and in the alternative to redeem the former. The plaintiffs founded their title on Dhunput''s alleged mortgage of December 15, 1879, and the sales made in execution of the decree obtained by him. And they alleged that the decree obtained by Chutterput was collusive and fraudulent on the ground that Nathmul Golicha was his benamidar, and also that the purchases made by Chutterput were illegal, null, and void on the ground of the same being collusive and fraudulent, without, however, stating any further particulars. 17. The appellants foolishly alleged in their written statement that Nathmul Golicha was the real purchaser on his own account of the shares purchased by him. This issue was decided against them, and was not raised before their Lordships. The Subordinate Judge held that the proceedings in Chutterput''s mortgage suit were collusive and fraudulent, and that the appellants acquired no title to the properties in suit by the sales held in that suit. In the judgment of the High Court it is stated that this finding was not impeached before them. The Subordinate Judge, however, found that the plaintiffs had no title to redeem the mortgage or to obtain possession from the appellants of the property not comprised in the mortgage except as to one small property which is not now in dispute. By his decree, dated December 16, 1895, he gave judgment in favour of the appellants (except as to the one matter), but without costs. By the decree of the High Court, dated February 23, 1899, the respondents were admitted to redeem the property comprised in the mortgage (except the one-ninth share of Zohra Begum therein), and were held entitled to possession of the 1 anna 2 gundahs and 21/2 krants share of Ramgunge Pipra, and the 12 annas share in mouzah Simraha. The present appeal is from this decree. 18. The view expressed by the Subordinate Judge as to Chutterput''s decree of August 15, 1887, is open to criticism if (as appears to be the case) he had not at that time acquired the shares of Syed Jan and his two sisters in the equity of redemption. But, having regard to what is stated to have passed in the High Court, the finding of the Subordinate Judge cannot be questioned by the appellants in this appeal. At any rate, when the sales took place Chutterput (it appears) was alone represented on each side of the record, and their Lordships think that the appellants cannot rely on the sales effected in these circumstances in support of their title, or derive any advantage therefrom. 19. What then is the consequence? and is there anything to deprive the appellants of the benefit of the purchases made by Chutterput out of Court? The Subordinate Judge, who took a somewhat extreme view of Chutterput''s "acute sagacity," suggested that such a transfer, if not actually void under Section 52 of the Transfer of Property Act, 1882, on the principle of lis pendens, was at least voidable under Section 53 of that Act at the instance of the respondents who had been eventually defeated and defrauded by it. But his decree does not contain any direction for avoiding or setting aside the purchases made by Chutterput in Nathmul Golicha''s name, and, as the Subordinate Judge decided in favour of the appellants, it is not clear that he intended to do so. In the High Court, on the contrary, those purchases and the transfers by which they were carried into effect are simply disregarded without any reasons being given for so treating them beyond a passing allusion to the view of the Subordinate Judge. But on the other hand their decision was against the appellants. In these circumstances their Lordships feel some embarrassment in dealing with this part of the case, but they think they ought to give the decision which the judge should, in their opinion, have given on the case presented to the Court. It is not disputed that the shares of all the heirs in Taki''s estate were purchased by Chutterput and transferred to his nominee Nathmul Golicha, though some of the transfers are not strictly proved. Those purchases were of course subject to any liabilities which might have been enforced or declared in the suit for the administration of Taki''s estate. But Dhunput''s suit, so long as the decree made therein stood unreversed, was not one in which the title of Taki''s heirs was "directly and specifically in question." (1) See Section 52 of the Transfer of Property Act. And he was not a necessary party and could not properly have been made a party to Chutterput''s suit. No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under Section 53 of the Transfer of Property Act, and no decree has been made for setting them aside. Such an issue could be raised and such a decree could be made only in a suit properly constituted for that purpose, and this suit was not so constituted either as to parties or otherwise. Their Lordships do not express and have not formed any opinion whether the transfers or any of them could have been avoided in a properly constituted suit. As was said by Lord Hobhouse in a somewhat similar case before this Board (2) Malharjun v. Narhari, L. R. 27 Ind. Ap. 216, at p. 226: "There may be defences to such a proceeding, and justice cannot be done unless those defences are examined by legal methods." 20. Their Lordships, therefore, are of opinion that on this appeal they must treat Chutterput as the purchaser and Nathmul Golicha as the transferee for value of the entire equity of redemption, and hold that the respondents have not made out any title to redeem Chutterput''s mortgage notwithstanding the subsequent sales in Dhunput''s suit under which they claim. 21. With regard to the two items of non-mortgaged property to the possession of which the High Court has held the respondents to be entitled, it is not proved that Dhunput took any steps effectual to attach those properties in the possession of the receiver in the administration suit. They are included in the purchases made by Chutterput of the shares and interests of Taki''s heirs in his estate. Independently, however, of this circumstance their Lordships think the title of the appellants superior to that of the respondents. The sale purporting to be made to Dhunput in his suit of the 1 anna 2 gundahs and 21/2 krants share in the jagirs Ramgunge Pipra, &c., was subsequent in date to the order of January 12, 1891, authorizing the receiver to sell this property, and the sale purporting to be made of the Simraha property was subsequent to the sale of this property to Chutterput on July 29, 1891. These dates are sufficient to give priority to Chutterput. But their Lordships agree with the broader proposition stated by Mr. Phillips. When the estate of a deceased person is under administration by the Court or out of Court, a purchaser from a residuary legatee or heir buys subject to any disposition which has been or may be made of the deceased''s estate in due course of administration. In fact, the right of the residuary legatee or heir is only to share in the ultimate residue which may remain for final distribution after all the liabilities of the estate, including the expenses of administration, have been satisfied. The judgment debtors in Dhunput''s suit were certain of the heirs of Taki, and nothing more could be sold in execution of the judgment against them than their shares or what might prove to be their shares in the ultimate residue of Taki''s estate. On every ground, therefore, their Lordships think that the purchaser at the sales made in the administration suit is entitled to priority over the purchaser at the execution sales purporting to have been made in Dhunput''s suit. 22. The High Court have, however, held that the 1 anna 2 gundahs and 11/2 krants share in Ramgunge Pipra was not the property of Taki but of Kazim, overruling to this extent the finding of the Court below on the seventh issue that all the properties in suit belonged to Taki, and Kazim had no interest in them. It appears, however, that this share, as well as the larger shares in the same estate, was in the possession of the receiver, and he gave possession of it to Chutterput. On the whole their Lordships think there is not sufficient reason shewn for disturbing the finding on this point of the Subordinate Judge. 23. Their Lordships will humbly advise His Majesty that the decree of the High Court dated February 23, 1899, should be reversed, and the decree of the Subordinate Judge of Purnea dated December 16, 1895, restored, and that the respondents should pay the costs of their appeal to the High Court. The respondents will also pay the costs of this appeal.