TaxTMI 
TaxTMI 
1904 (11) TMI 1
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 zamindari 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 ₹ 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 sepa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erput'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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourse 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 defenc....