Hari Mohan Ojha and Another vs Bansdhaj Pathak and Another

Agarwala, J.—This second appeal was preferred by defendants 2 and 3 against the decision of the Subordinate Judge of Purulia reversing a decision of the Munsif. Since the filing of the appeal, defendant 3 has died. His heirs have been brought on the record as respondents. The appeal arises out of a suit brought by the plaintiff on a usufructuary mortgage executed by defendant 1. The plaintiff sought to obtain a money decree against the mortgagor for recovery of possession against defendants 2 and 3 who he alleged had dispossessed him from the mortgaged property. The mortgaged property belonged to three brothers, Jadu, Banamali, father of defendant 2 and Ananta, father of defendant 3. Jadu executed a kobala purporting to transfer his interest to his brother-in-law, defendant 1, the mortgagor. At the same time, defendants 2 and 3 executed a kobala purporting to transfer their interests to a relation. The defence of defendants 2 and 3 was that they and Jadu were joint and that on Jadu''s death they succeeded by survivorship to his interest in the property.

The sale by Jadu in favour of defendant 1 was said to be a benami transaction and it was alleged that after Jadu''s death his wife took possession of his interest and remained in possession of it by way of maintenance until 1341. Defendant 1 denied that the sale to him was a benami sale and supported the case of the plaintiff mortgagee.

The first Court held that the sale to defendant 1 and the sales by defendants 2 and 3 were benami and that the three brothers were joint. Consequently, the first Court held that defendant 1 had no power to execute the mortgage in favour of the plaintiff and that he alone was liable to refund the money borrowed. Against that decision there was an appeal by defendant 1 alone.

At the trial he sought to establish that the three brothers were separate and that the sale to him by Jadu was a real and not a benami transaction. This case has been accepted by the Court of Appeal below which consequently held that the mortgage was a good mortgage and awarded the plaintiff a decree for possession against defendants 2 and 3 with mesne profits.

In second appeal it is contended by the learned advocate for the appellants that the Court of Appeal below was wrong in regarding the sales as amounting to separation between the three brothers. The fact that the three brothers purported to deal with their interest independently of each other is certainly some evidence of separation. The matter is put beyond doubt by an admission by one of the appellants at the trial'' that he and the other appellant partitioned their interests between themselves. This admission also disposes of another point raised on behalf of the appellants. It was contended that the Court below had come to no finding that there was actual partition by metes and bounds of the interests of the three brothers.

But if the appellants partitioned their interests between themselves, they could only have done so after the interest of Jadu had already been definitely separated. The last point urged in support of the appeal is that the Court of Appeal below should not have passed a decree for possession in favour of the plaintiff in an appeal by defendant 1 alone. It is urged that as plaintiff did not appeal from the decision of the trial Court giving him a money decree only against defendant 1, the Appellate Court had no power to alter the decree in his favour. Order 41, Rule 33 however confers upon the Appellate Court very wide powers to pass such orders as may dispose of the dispute between the parties to the litigation.

The Rule expressly empowers a Court to pass an appropriate decree not only in favour of the appellant but in favour of any of the respondents or parties although such respondents or parties may not have filed an appeal or objection. There is no bar therefore to the Court below altering the decree of the trial Court in favour of the plaintiff who was a respondent to the appeal. It was contended that although the Appellate Court may alter a decree in favour of a respondent who has not appealed, it has no power to do so to the detriment of other respondents. To adopt that contention would be to nullify the Rule altogether. There is no other point in this second appeal and it is dismissed with costs.