JUDGMENT Malik, C.J.
1. This is a plaintiffs' appeal against the order of the lower Court dismissing their suit for possession of certain properties as against defendants 1 to 8 and 29 to 31. The plaintiffs had claimed the properties as the reversionary heirs of Lal Bishwanath Singh who died on 26/27th April 1872. After the death of his widow, Mt. Sheobachan Kuer, on 7th October 1926, the suit wag filed on the last date of limitation, i. e., 6th October 1938.
2. The pedigree of the family is printed at page 7 and there is no dispute as regards the pedigree. On the death of Mt. Sheobachan Kuer, Lal Shanker Nath Singh, who was the nearest collateral of Lal Bishwanath Singh, became his legal heir. The suit was filed by Somnath Singh, son of Lal Shanker Nath Singh, the other two plaintiffs being his cousins to whom the plaintiff had agreed to give a portion of the property.
3. The property is divided into six schedules. The appeal relates only to schedules A and D, as the plaintiffs entered into compromises with the other defendants who were interested in Schedule B, C, E and P., and decrees: have been passed in terms of the compromises and we are, therefore, no longer concerned with these items of property. Defendants 1 to 8 are in possession of Schedule A property and defendants 29 to 31 are interested in Schedule D property. Defendants 1, 2 and 3 are represented by Mr. Pathak and defendants 6 and 7 are represented by Mr. Krishna Shankar. Defendant 8 is not represented before us, while defendants 4 and 6, Mt. Annapurna Debi and Lakshmi Narain, are dead, they having died during the pendency of the appeal. The appellants did not apply for substitution of names as it was their case that the other defendants, who were already on the record, were the legal representatives of the deceased defendants. Defendants 29, 30 and 31 are not represented.
4. Lal Bishwanath Singh was the step-brother of Lal Kashi Hath Singh and Lal Shankar Nath Singh. Their father, Raja Ramadhin Singh, died on 23rd November 1870. There was a dispute between Bishwanath Singh and his step, brothers and Bishwanath Singh had preferred a claim against them valued at five lakhs. The matter was, however, referred to arbitration and the arbitrators gave an award on 22nd April 1872, Under this award the property was divided into three equal parts, but Bishwanath Singh, as the elder brother, was given two villages, Mawai and Bahadur pur in district Banaras, as his Jethansi share. Bishwanath Singh died, as has already been said, within five days of the delivery of the award. His widow, Mt. Sheobachan Kuer, executed a mortgage of these two villages for Rs. 12,000 on 15th October 1873, to one Nawab Hasan Ara Begam of Banaras. The mortgagee filed a suit No. 171 of 1874 for realisation of the money due on the mortgage. The suit was decreed on 31st March 1875. Village Bahadurpur with its dakhli villages was sold and was purchased by one Payag Singh. The auction purchaser and his legal representatives remained in possession of the property up to the year 1900 when in execution of a decree against them the property was again sold and was purchased by the predecessors-in-interest of defendants 1 to 8.
5. After the death of Biswanath Singh, Kashi Nath and Shanker Nath, step-brothers of Biswanath, claimed that the two villages, Mawai and Bahadurpur, had been given to Bishwanath Singh only for his lifetime and that after his death the two villages came to them by right of survivorship. They filed a suit in the Court of the Subordinate Judge which was Suit No. 139 of 1874. The mortgagee, Nawab Hasan Ara Begam, in her Suit No. 171 of 1874, for realisation of the money due on the mortgage, impleaded Kashi Nath and Shanker Nath on the ground that they were claimants to the mortgaged property in question. Shanker Nath was a minor and he was impleaded under the guardianship of his brother, Kashi Nath. In the plaint filed on 28th November 1874, by the mortgagee it was not alleged that the debt was incurred by Mt. Sheobachan Kuer for legal necessity. As a matter of fact, the purpose of the loan was not given at all. Later, on 21st December 1874, the plaintiff Nawab Hasan Ara Begam, filed an application which is headed as 'written statement on behalf of the plaintiff' and in that it is said:
"Raja Kashi Nath Singh defendant 2 also has admitted his liabiltiy for this debt inasmuch as in the document for Rs. 4,000 which he executed in favour of the plaintiff on 1st February 1874, he has admitted his liability for this debt, but this document has not been registered and it is with defendant 2. Consequently I have made him also a witness for producing the same. Defendant 2 has now instituted a suit against defendant 1 for property and possession in respect of the entire mortgaged property. The aforesaid person is therefore liable for the amount of the debt. Hence this suit for recovery of the amount of principal and interest at the rate of Re. 1 per cent. per mensem as per condition given in the document, has been brought against both the defendants by enforcement of the hypothecation lien against both the villages mortgaged."
In the written statement filed by Raja Kashi Nath Singh on 13th January 1875, on behalf of himself and his minor brother, Shanker Nath, it was stated that it did not appear from the plaint that Mt. Sheobachan Kuer bad borrowed the debt for any necessity in respect of that property. The defendants further pleaded that, in case their suit was decreed and they got possession of Mauza Bahadurpur and Mawai Kalan, they would have no objection in paying the debt due under the mortgage in proper instalments together with interest at the rate of eight annas per cent, per mensem. On 31st March 1876, the learned Subordinate Judge decreed the suit against the "mortgaged property and the person and property of Sheobachan Kuer" but the decree was not to be executed against the person and property of the other defendants. In the body of the judgment, the learned Subordinate Judge has stated that Raja Kashi Nath for self and guardian of Raja Shanker Nath had put forward the claim that he was entitled to and was the Waris Mustaqil to the mortgaged property. It has been wrongly translated in the paper book as "future heir." The literal translation is "permanent heir." The learned Judge has further remarked that Raja Kashi Nath for self and on behalf of his brother had admitted the mortgage and the charge against the property. He had only pleaded that he was personally not liable.
6. Village Bahadurpur was sold in execution of the mortgage decree on 28th April 1876, for Rs. 30,250 before Suit No. 139 of 1874 filed by Kashi Nath and Shanker Nath was decided by the trial Court. The decree passed on the basis of the mortgage was for Rs. 13,612. After the Satisfaction of the mortgage the balance of the money remained in deposit. In Suit No. 139 of 1874, filed by Kashinath and Shankernath, the plaintiffs made an application that, as village Bahadurpur had been sold and had been pur-chased by a third party, they might be given a decree for the surplus sale proceeds of the said village, instead of a decree for possession of the village itself. The plaint was amended by an order of the Court dated 15th May 1876. The learned Subordinate Judge, on 31st May 1876 held that the plaintiffs were entitled to a two third share in village Bahadurpur and not the whole property. The plaintiffs were, therefore, given a decree in the following terms:
"It be held that the entire property in dispute is the Haqiat and Milkiat of Raja Ram Adhin Singh, deceased, and a decree for recovery of possession of two-third of mauza Mawai, and two-third of the surplus of the sale proceeds of mauza Bahadurpur, and for declaration of the right of possession of the other immoveable properties to the extent of a two third share be passed in favour of the plaintiffs."
There was an appeal to the High Court filed by Raja Kashi Nath for himself and his minor brother in which it was claimed that the lower Court should have decreed the suit in its entirety, while a cross-objection was filed by one Damodar Lal who had become interested in mauza Mawai by sale. Mt. Sheobachan Kuer neither appealed nor filed a cross-objection and the auction -purchaser of Bahadurpur, Payak Singh, was neither impleaded in the suit nor was he interested as the plaintiffs were claiming only the sale price and not the property after the auction. The High Court disagreed with the decision of the lower Court and came to the conclusion that Bishwanathsingh had become the owner of the two villages, Mawai and Bahadurpur, and on his death the two villages were inherited by his widow, Mt. Sheobachan Kuer, as widow's estate. It, therefore, dismissed the appeal of Kashi Nath and Shanker Nath and allowed the cross-objection of Damodar Lal as regards Mawai and held that he was entitled to remain in possession of the property for the lifetime of the widow. The High Court did not, in any way, interfere with the decision of the Subordinate Judge about village Bahadurpur or the sale proceeds of that village.
7. We are concerned in Schedule A with village Bahadurpur and its Dakhli villages only. The first point, therefore, that arises for consideration--a point, however, which was neither raised in the lower Court nor in this Court--is whether the plaintiffs can now assert that the whole of Bahadurpur was inherited by Mt. Sheobachan Kuer as a Hindu widow. The decree of the learned Subordinate Judge in Suit No. 189 of 1876 became final as this part of the decree was not challenged in the High Court and it must there fore be held that a two-third of Bahadupur belonged to Kashi Nath and Shanker Nath who got it on the death of Bishwanath in 1872 and only one-third of the property was held by Mt. Sheobachan Kuer as a Hindu widow, The learned Advocate-General, when the point was put to him, had to admit that be had no answer to give and could not contest this position. The plaintiffs cannot therefore claim more than one-third of the Schedule A properties--that is, properties which were held by Mt. Sheobachan Kuer as a Hindu widow--for the recovery of which they can file a suit which will be governed by Article 141, Limitation Act.
8. As regards the one third, the position is that the property was sold in execution of a decree to which Kashi Nath and Shanker Nath were parties An application was made on their behalf that, as the village had been sold, they did not want to claim the village but claimed instead the sale consideration and they were given a decree for the amount and, presumably as the decree was not upset by the High Court, they must have withdrawn the amount from the Court. Having accepted the position that the property was rightly sold and having claimed only the sale proceeds, they cannot now, after a lapse of about sixty years, claim the property.
9. Coming to the question of legal necessity, it is true that there is no direct evidence of legal necessity as the mortgage was challenged sixty-five years after its execution. The original mortgagee is dead and she ceased to have any interest in the property in the year 1876. Payag Singh, the auction-purchaser, died long ago and even his descendants lost all interest in the property in the year 1900 when it was sold in execution of a decree against them. All the contemporaneous oral evidence must have disappeared. No documentary evidence came into the possession of the present defendants, The learned Advocate-General has urged that it was the duty of the defendants to have made a proper search in the old Court records of 1872 and 1873 and to have produced such documents as could be available, and as no document has been produced he has asked us to presume that the recitals in the mortgage deed must be false and no documents to prove that Bishwanath Singh was indebted ever existed.
10. We find, however, that in the award dated 30th November 1874, the arbitrators held that:
"all the three brothers shall be equally entitled to recover and be responsible for the payment of the debts which are Hue to or by the deceased Raja up to this-time from his lifetime,"
The copy of the document on the record is in English. The learned Advocate General has urged that this only means that if there are any debts all the three brothers will be equally liable. This-suggestion he has made as the document does not contain any list of debts but, for the matter of that, the document does not even contain any list of properties. In 1872 the work in Courts was not done with the same degree of care and exactitude as it is done now, with the result that the arbitrators only gave their decision but neither gave the list of properties--movable or immovable--nor a list of the debts. It is significant, however, that it is not said in the award that 'debts which may be due' but 'debts which are due'. We take it, therefore, that there were* debts due of the time of Raja Ramadhin Singh who died on 23rd November 1870. We further-find that Bishwananth Singh was involved in litigation soon after the succession opened. He brought a claim, which ended in the award, which was valued at five lakhs. He brought another claim against Kashi Nath and Shanker Nath for a one-third share in the personal property, clothes and jewels and this claim was valued by him at rupees one lakh and five thousand. He died in April and this claim for a lakh and five thousand was dismissed with costs. The widow tried to revive the claim but failed. She, however, fought it up to the High Court. She then tried to file a fresh suit but was not successful in an old judgment there is a mention that there were proceedings for a decree to be passed in terms of the award and that matter was also contested. It is also in evidence that there was-dispute in the mutation Court about mutation to the property. In those circumstances, it is not likely that the position of the widow was difficult on the death of her husband, Bishwanath and it is not unlikely that she must have found it difficult to make realisations from the villages. In the mortgage deed dated 15th October 1873, the recital as to necessity is as follows:
"Now, it is incumbent upon me to pay certain debts to creditors due against my deceased husband as well as due by me, contracted for payment of revenue in respect of mauzas Bahadurpur and Nawai Kalan and for Court expenses etc., because on account of the expiry of the terms, most of the creditors are ready to file suits and some of them are ready to put their decrees into execution. Therefore, unless an arrangement is made for payment of all the debts at one time, it is apprehended that the property will be put to mis-management and destruction. I have, accordingly, borrowed a sum of Rs. 12,000 half of which is Rs. 6,000 bearing interest at the rate of 13 annas per cent, per mensem, from Hasan Ara Begam, daughter of Nawab Jahan Ara Begam deceased .... with promise to pay it after five years. I have therewith paid the debts of the creditors and the decretal amount of the decree-holders, and having received back the documents from the former creditors, I have made them over to the Begam Saheb aforesaid. I have brought the remaining amount of the money for my use for meeting some necessary expenses and for the management of other properties."
11. The learned Advocate-General has pointed out that this document also does not furnish any details of the debts or of the decrees. This criticism is justified, and the explanation may be the same as for the absence of any details in the award dated 22nd April 1872. The nearest reversioner, at the time when this mortgage was executed and the suit was filed for sale on the basis of the mortgage, was Mt. Chandra Dei, daughter of Bishwananth Singh. She died in 1907 but the next presumptive reversioners were Kashi Nath and Shanker Nath. It is alleged in the plaint that the mortgage was executed--as Kashi Nath and Shanker Nath had claimed the property--with the object of defeating their claim or creating difficulties for them. If this were so, it is surprising that neither in the suit filed by Kashi Nath for the recovery of the property nor in his defence in the suit on the mortgage in which Kashi Nath was impleaded as a defendant it was pleaded that the mortgage was not for legal necessity and was not binding on the estate of Kashi Nath. It is said that Kashi Nath was not in a position to do that as he had already admitted his liability, as would appear from the statement of facts mentioned in the document Ex. 20 dated 21st December 1874. The document, however, recites that Kashi Nath had admitted his liability in the document dated 1st February 1874, which had remained with Kashi Nath and he had not got it registered. This does not show that the admission was made by Kashi Nath because of either undue influence or coercion. The admission had been made in an unregistered document eleven months before, the period of registration of which--if the document was compulsorily registrable--had expired. Kashi Nath might have admitted his liability because he knew that the debts were for legal necessity. I do not think we can draw an adverse inference against the mortgagee by reason of the admission of Kashi Nath and hold that the mortgagee must have put pressure on Kashi Nath to admit his liability when he was not really liable. From the fact that the next presumptive reversioners not only did not challenge the validity of the mortgage but admitted their liability under the same and when the property was sold in execution of the mortgage they accepted the position that the property was lost to the estate and it was only the money that could be claimed, it may be presumed that the recitals made in the mortgage deed represented facts which they believed to be true. It is not possible now to give evidence that the mortgagee had made enquiries and had satisfied herself about the correctness of the representations made to her and had advanced the money in good faith. The re-presentations are there in the recitals contained in the deed. Prom the conduct o£ the next presumptive reversioners, who were claiming the property from the widow and yet did not challenge the mortgage but accepted its validity and the validity of the auction sale, it may be inferred that the mortgagee, if she had made enquiries, would have also been satisfied that the representations were true.
12. It is urged by the learned Advocate-General that Shanker Nath was a minor and his brother was not looking after his interest properly inasmuch as he was removed by the Court on 20th August 1881 for not having filed accounts and according to the judgment dated 12th May 1886, the creditor had failed to prove that the mortgage executed by Kashi Nath in 1878 was binding on the minor. The mortgage was held to be not binding as Kashi Nath had executed the mortgage without the permission of the District Judge, he being the certificated guardian. But from the fact that Kashi Nath had not filed accounts and was removed from guardianship or that he had executed a mortgage without the permission of the District Judge, it cannot be assumed that he was a guardian from whose conduct no inference can be drawn against the then minor. Kashi Nath was equally interested in the property with the plaintiff Shanker Nath and the fact that on his own behalf also he admitted the mortgage and the auction sale and did not challenge the validity of the mortgage is a circumstance to my mind of some importance. In the absence of direct evidence, which is no longer available, an inference can be drawn from the surrounding circumstances that the recitals in the document set out the correct facts. It is also significant that, though the widow died in 1926, the present claim was not filed till the last date of limitation in 1938.
13. The learned Judge of the Court below has held that the decree in the mortgage suit operates as res judicata. The difficulty in accepting that position is that the plaint filed by the mortgagee does not set out the facts in any detail and the reason given in the array of parties for the impleading of Kashi Nath and Shanker Nath is stated to be that they were claimants to the property. In the circumstances, it cannot be said that the defendants, Kashi Nath and Shanker Nath, might and ought to have made the plea of want of legal necessity a ground of defence in their suit. From the judgment, however, it appears that the defendants set up the plea that they were permanent heirs and admitted that they were bound by the mortgage, but in the absence of the statements on which the judgment might be based, it is difficult to hold that the plaintiffs' claim is barred by res judicata, as it may be that the learned Judge has not accurately set out the pleadings between the parties. The pleadings are available and have been filed and the plaint does not show that the defendants might and ought to have raised this plea. There is no mention in the judgment that there were any oral pleadings or any subsequent amendments to the pleadings. We are, therefore, (not prepared to hold that the plaintiffs' claim was barred by res judicata.
14. We are, therefore, of the opinion that the plaintiffs' claim to the property in Schedule A must fail.
15. The plaintiffs have already entered into compromises as regards properties in Schedules B, C, E and F and decrees in terms of the compromises have been passed.
16. As regards the property in Schedule D, from the plaint it did not appear against which defendants this property was being claimed and on what grounds. The evidence in the case was concluded in March 1942 and probably at the time of arguments a statement was made by the parties on 1st April 1942. From this it appears that the salary of one Mohammad Ali was due. He brought a suit and got a decree for arrears of pay against Mst. Sheobachan Kuer on 29th August 1876. The property was sold on the let May 1877, and was purchased by Mohammad Ali himself. The sale certificate was issued to him in 1881. In the written statement filed by Rahmatullah, defendant 29, it was stated that Mohammad Ali was the general attorney of Lal Bishwanath Singh and after his death he continued to be the general attorney of Mst. Sheobachan Kuer, that he got a decree on account of arrears of pay due to him and that the property was sold on 3lst March 1887. 31st March 1887, is evidently a mistake as would appear from Ex. E 1, the sale certificate, which shows that the property was sold on the 1st May 1877. No other information is available on the record and it is obviously for the reason that the plaint was badly drafted and the plaintiffs' case was not made clear till the statements of the parties were recorded on 1st-April, 1942. The learned Judge has, in his judgment, observed that "the plaintiffs did not press their claim against the defendants Nos. 29 to 31, but at the same time they did not make a statement that this suit against them., should be dismissed."
Under the circumstances we do not propose to-interfere with the order passed by the lower Court and the plaintiffs' claim with respect to the properties in Schedule D should also fail.
17. The result, therefore, is that the plaintiffs' suit as against defendants 1 to 3, Ambika Pd. Dube, Thakur Pd. Dube and Durga Pd. Dube, defendant 5, Ram Narain, defendant 7, Ganesh Pd. and defendant 8, Mt. Makhana. with respect to Schedule A properties is dismissed. Mt. Annapurna Debi and Lakshmi Narain defendants 4 and 6, are dead and no decrees can be passed against them. If the defendants 1 to 8 are her legal representatives, they represent the estates of Mt. Annapurna Devi and Lakshmi Narain. The claim of the plaintiffs as regards the property in Schedule D against defendants 29, 30 and 31, that is, Rahmat Ulla, Mt. Jasoda and Mt. Halima, is also dismissed.
18. Defendants Nos. 29 to 31 were not represented in this Court and we, therefore, do not grant them any costs of this appeal. The other respondents against whom the plaintiffs' appeal has failed ace entitled to get their costs from the appellants.
19. Desai J.--This is an appeal by the plain-tiffs from a decree of an Additional Civil Judge, Banaras, dismissing their suit for possession over property sold in execution of a decree obtained against Shrimati Sheobachan Kuer, whose next reversioners they claim to be, and mesne profits.
20. The property in dispute originally belonged to Ramadhin Singh who died in November 1870, and whose relationship with the persons, who will be referred to in this judgment, will be apparent from the following genealogical table:
RAMADHIN SINGH | ______________________ _|______________________ | | | Vishwa Nath Singh Kashinath Singh Shankarnath Singh (From first wife;husband | | of X and Shrimati Sheo Tribhuwannath Somnath Singh (plaintiff 1.) Bachan Kuer). | | __|______________________ Shrimati Chandra Devi | | (Danghter from first wife). Surendranath Singh Dharmendranath Singh (plaintiff 2). (plaintiff 3).
Soon after the death of Ramadhin Singh there arose disputes among his sons over the division of property. Vishwa Nath Singh instituted on 16th November 1871 a suit against his two brothers-for one-third share in movables valued at Rs. 1,05,000. During the pendency of that suit the disputes among the brothers were referred to arbitration by them. The arbitrators gave an award on 22nd April 1872. Under the award' villages Mawai and Bahadurpur, main as well as appended villages, were given exclusively in the share of Viahwa Nath Singh in consideration of his being the eldest son and the rest off the property, movable as well as immovable, left by Ramadhin Singh, and debts due to and from, him were divided equally among the three brothers. The award was filed in the Court but before it could be the subject-matter of a decree Vishwa Nath Singh died on the night of 26/27 April 1872, leaving behind his 21 years old widow Shrimati Sheo Bachan Kuer and Chandra Devi, a daughter of unknown age. Nobody applied to be brought on record in place of "Vishwa Nath Singh and consequently the suit was dismissed with costs on 31st May 1872. In August 1872 Shrimati Sheo Bachan Kuer applied for the restoration of the suit but her application was dismissed on 3lst January 1873. Shrimati Sheo Bachan Kuer obtained mutation over the property of Vishwanath Singh but not without contest from his brothers.
21. On 28th August 1873, Shrimati Sheo Bachan Kuer executed a mortgage in favour of Noor Mohammad with which we are not concerned in this litigation. On 15th October 1873 she executed another simple mortgage for Rs. 12,000 in favour of Nawab Husuna Ara Begam. One of the terms of the mortgage was that Shrimati Sheo Bachan Kuer should pay interest every six months to the Nawab and if there was any default, the Nabab was to be entitled to sue at once for the recovery of her money. The mortgage was of villages Bahadur, pur and Mawai. (One of the principal questions to be considered in this appeal is whether this mortgage was for legal necessity and binding upon the reversioners of Shrimati Sheo Bachan Kuer). In 1874 Kashi Nath Singh, for himself and as guardian of Shankar Nath Singh (on the basis of a guardianship certificate granted to him on 10th February 1873), instituted suit No. 139 of 1874 challenging the validity of the award of 22-4-1872 and claiming that Viswa Nath Singh died in a state of jointness with them, that they were his survivors and that Sheo Bachan Kuer was not entitled to inherit any property. Shortly after,- the Nawab instituted suit No. 171 of 1874 to enforce her mortgage against Shrimati Sheo Bachan Kuer on the ground that she bad defaulted in paying the interest. He impleaded Kashi Nath Singh and Shankar Nath Singh as defendants along with Shrimati Sheo Bachan Kuer. She had sought the relief principally against Shrimati Sheo Bachan Kuer but impleaded the other two on the allegation that Kashi Nath Singh had admitted in writing his liability for the mortgage debt and also because he and his brother had instituted suit No. 139/74 claiming that they were the owners of the mortgaged villages. The claim was admitted by Shrimati Sheo Bachan Kuer. Kashi Nath Singh for himself and as guardian of his brother filed a-written statement stating that he had not joined in the execution of the mortgage deed, that it did not appear from the plaint that Shrimati Sheo Bachan Kuer had incurred the debt for any legal necessity, that if they got a decree in their suit No. 139/74 and Shrimati Sheo Bachan Kuer was dispossessed from the mortgaged villages they would have no objection in satisfying the Nawab's claim and that in case they failed in their suit neither their persons nor their property would be liable for the Nawab's debt and her remedy would be against the mortgaged villages and them only. The Nawab's suit was decreed on 3lst March 1875 against Shrimati Sheo Bachan Kuer's person and property including the mortgaged villages; Kashi Nath Singh and Shankar Nath Singh were exempted from all liability. The Nawab promptly put her decree into execution by proceeding against one of the two villages. In due course village Bahadurpur was put to auction and was purchased by one Payag Singh, the predecessor-in-title of defendants 1. The sale certificate was issued to him on 17th June 1876 and he obtained possession over the village through Court a month later. The village was sold for rupees thirty thousand odd whereas the Nawab's decree was for rupees fifteen thou-sand odd so after satisfying the Nawab's decree there remained a surplus of rupees fourteen thousand odd. Now I revert to the suit No. 139 of 1874. When village Bahadurpur passed out to Payag Singh, Kashi Nath Singh got the plaint amended by claiming the surplus of rupees fourteen thousand odd in place of the village. One of the controversies in that suit was whether under the award the two villages were given to Vishwa Nath Singh as his absolute property or only as a life estate. The trial Court held that the award was binding on Kashi Nath Singh and his brother, that the two villages were given to Vishwa Nath Singh under the award only for his life time and that on his death Shrimati Sheo Bachan Kuer was entitled to one-third share in them and Kashi Nath Singh and Shankar Nath Singh to the remaining two-third share; and passed a decree on 31st May 1876 in favour of Kashi Nath Singh and Shankar Nath Singh for two-third share in village Mawai and in the surplus of rupees fourteen thousand odd.
22. Before I proceed further with suit No. 139 of 1874 I must refer to another litigation. On 18th August 1875, Shrimati Sheo Bachan Kuer executed another simple mortgage of village Mawai in favour of Mahabir Prasad. It was recited in the deed that she stood in need of Rs. 5000 in order to file a suit against Kashi Nath Singh and his brother to" recover her one-third share in the movables. I have already mentioned that she had failed in getting restored the previous suit brought by her husband on the same cause of action and dismissed on account of abatement on 31st May 1872. She, therefore, decided to file a fresh suit and was in need of money. She filed suit No. 1/76 against 'Kashi Nath Singh and Shankar Nath Singh for her one-third share in the movables worth Rs. 1,05,000. It was dismissed by the trial Court on the ground that her husband's suit had abated and she could not file a fresh suit. She filed an appeal and the appeal also failed. Some trouble arose between Shrimati Sheo Bachan Kuer and Mahabir Prasad who then filed suit No. 73/76 in order to enforce his mortgage against village Mawai. He did not implead Kashi Nath Singh and Shankar Nath Singh. The execution of the mortgage was admitted by Shrimati Sheo Bachan Kuer and a decree was passed against her on 30th October 1876. In execution of that decree village Mawai was put to auction and was purchased by one Damodar Lal on 20th December 1876.
23. Kashi Nath Singh and Shankar Nath Singh filed an appeal against the decree of 81st May 1876, their suit No. 139/74; they contended that they were not bound by the award. By that time village Mawai also had passed out of the 'hands of Shrimati Sheo Bachan Kuer through auction purchase to Damodar Lal, Kashi Nath Singh and Shankar Nath Singh impleaded him as a respondent to their appeal and challenged the binding effect of the mortgage to Mahabir Prasad and the auction sale to Damodar Lal. It will be noticed that they did not implead Payag Singh, the auction-purchaser of the other village Bahadurpur, and far from challenging the binding effect of the mortgage in favour of the Nawab and of the auction sale to Payag Singh they accepted it by claiming only the surplus of RS. 14000 odd. The appellate Court con-firmed the trial Court's finding that the award was binding on them and dismissed their appeal. There was a cross objection by Damodar Lal against the decree of two-third share in village Mawai in their favour. The appellate Court held that Vishwa Nath Singh was the absolute owner of the two villages and that they passed on to his heir Shrimati Sheo Bachan Kuer on his death. Accordingly it set aside the decree for two-third share in village Mawai and dismissed their claim in respect of that village. As there was no similar cross-objection by Shrimati Sheo Bachan Kuer against the decree for two-third share in the surplus money, the appellate Court did not interfere with it and allowed Kashi Nath Singh and Shankar Nath Singh to retain the decree. Since the surplus money was already in the Court it is to be presumed that it was paid to them.
24. One Shyam Krishna obtained a decree against Payag Singh and executed it by putting village Bahadurpur to auction. It was purchased by Bindeshwari Pd., in 1899 in auction. Chandra Devidied in 1907. On 20th August 1881, Kashi Nath Singh was removed from guardianship of Shankar Nath Singh on account of his failure to furnish accounts. He died in 1910. Shrimati Sheo Bachan Kuer died on 7th October 1926, leaving Shankar Nath Singh as the next reversioner. He instituted suit No. 86/27 to recover village Mawai from Damodar Lal oh the allegations that the mortgage in favour of Mahabir Pd., was without legal necessity and that the auction sale did not pass anything but Sheo Bachan Kuer's life interest in the village to Damodar Lal. The suit was decreed, it having been found that the mortgage was without legal necessity and that only Sheo Bachan Kuer's life interest in the village was put to auction and purchased by Damodar Lal.
25. All the facts mentioned above are admitted by the parties. The suit from which this appeal arises was instituted by Shankar Nath Singh and his nephews to recover village Bahadurpur and other properties mentioned in schedules A to F attached to the plaint. Shankar Nath Singh had made a gift of half of his share in the properties in dispute in favour of his nephews and that is why they were joined as plaintiffs along with him. Schedule A is in respect of village Bahadurpur, main as well as its appended villages. Now it is in possession of defendants 1-8 through Bindeshwari Pd. Proper-ties mentioned in Schedules B, C, E and F were given to Vishwa Nath Singh under the award. They are now in possession of defendants 9-28 and 32-42 the parties compromised in respect of these properties in the Court below and they are no longer in dispute. The property entered in Schedule D, which is also out of the properties given to Vishwa Nath Singh under the award, was put to auction in execution of a simple money decree passed against Shrimati Sheo Bachan Kuer in 1896 for arrears of pay due to one Mohd. Ali and was purchased by Mohd. All, whose heirs sold it to defendants 29-31. The case of the plaintiffs is that the mortgage by Shrimati Sheo Bachan Kuer in favour of the Nawab was without legal necessity and not binding upon them, as her next reversioners, and that they are also not bound by the simple money decree obtained by Mohd. Ali. The suit was contested by defendants 1-8 and 29. They pleaded that the mortgage was for legal necessity, that the plaintiffs were barrel by res judicata and that there was no collusion between Shrimati Sheo Bachan Kuer and Mohd. Ali or between Kashi Nath Singh and the Nawab or Shrimati Sheo Bachan Kuer. Very little oral evidence was produced in the suit, the parties relying mainly on the documents. Som Nath Singh himself came in the witness box and the only material evidence that could be got from his mouth is that Ramadhin Singh and Shrimati Sheo Bachan Kuer used to get monthly maintenance allowances of Rs. 600 and RS. 200 respectively from the Raja of Ayodhya and that Chandra Devi was not maintained by Sharimati Sheo Bachan Kuer. The two witnesses examined by the contesting defendants gave only formal evidence. The learned Additional Civil Judge came to the conclusions that the mortgage in favour of the Nawab was executed for legal necessity and was binding on the estate, that the decrees in suits Nos. 139/74 and 171/74 operated as res judicata against plaintiffs and that no case was made out against defendants 29-31 and accordingly dismissed the suit. Hence this appeal by the plaintiffs.
26. The present suit was instituted on 6th December 1938. Prior this in 1936 two applications were filed, one by Ganesh Pd. defendant-respondent 7 and the other by Shrimati Anna Purna Devi defendant respondent 4, under Section 4, Encumbered Estates Act. Each claimed one-fourth share in village Bahadurpur. The plaintiffs lodged claims that village Bahadurpur was theirs. Those claims were rejected by the same learned additional Civil Judge, though as special Judge, along with the present suit. So they have filed two First Appeals Nos. 313 and 314. As the same disputes are involved in them, they ate being dealt with through this judgment.
27. The next reversioner at the time of the execution of the mortgage was Chandra Devi. All that one knows about her is that she was not being maintained by Shrimati Sheo Bachan Kuer, who was her step-mother. She did not give consent to the mortgage nor did Kashi Nath Singh. Shankar Nath Singh was a minor then 3tnd there does not arise any question of his having given consent. Therefore, the plaintiffs are not estopped from pleading that there was no legal necessity. No evidence to prove that a legal necessity existed or that the Nawab had made a proper enquiry in order to satisfy her self that such a necessity existed has been adduced by the defendants. Legal necessity can be proved either by direct evidence or by an inference to be drawn from consent of "all those who are likely to be interested in disputing the transaction." Neither kind of evidence exists here. If an alienee cannot prove the existence of legal necessity he must at least prove that he made proper enquiries and was genuinely satisfied that the necessity existed. Again he can prove this either by direct evidence or by an inference to be drawn from circumstances and probabilities of the case when the matter is very old and direct evidence has disappeared. A recital in the mortgage deed is clear evidence of the fact that a particular representation was made by, or on behalf of the widow, to him. If he is dead and his successor is unable, on account of lapse of much time to produce evidence to the effect that he made proper enquiries about the representation and was satisfied about its truth, it is open to the successor to rely upon the circumstances and probabilities of the case. This has been clearly laid down by the Judicial Committee in Banga Chandra v. Jagat Kishore,44 Cal. 186 : (A. I. R. (3) 1916 P. C. 110).
28. The gist of the recitals in the mortgage deed under consideration is this : Shrimati Sheo Bachan Kuer had to pay debts due from her as well as from Vishwa Nath Singh contracted for payment of land revenue and litigation expenses, she was being threatened with suits by her creditors, some of the creditors had already obtained decrees against her and were threatening to put them into execution and it was necessary to borrow Rs. 12,000 in order to pay off the creditors and to defray "some necessary expenses for the management of other properties." Out of the sum of Rs. 12,000, Rs. 6,000 was spent in paying off the creditors and decree-holders and the deeds received from the creditors were made over to the Nawab. Those deeds have not been produced nor is any copy of a decree produced, nor are any particulars of the creditors and the decrees given. The deeds must have been in possession of the Nawab. They were made over to the Nawab and one does not know what happened to them subsequently. No copies of the decrees could be had after this lapse of 65 years and the defendants cannot be much blamed for not producing a copy of the goshwara. I do not think Shrimati Sheo Bachan Kuer and the Nawab falsely got it written in the mortgage deed that there were decrees pending against Shrimati Sheo Bachan Kuer. Neither of them could anticipate that the truth of the recital would be questioned in Court 65 years later when it could be argued that no evidence of the decrees could be had then. There is evidence at least of one decree for costs in the suit brought by Vishwa Nath Singh for one-third share in the movables. The amount of costs must have been considerable because the claim was for a huge sum. Then the very fact that it was stated in the award that the debts due from Ramadhin Singh were to be shared by the three brothers equally shows not only that there were debts due from Ramadhin Singh but also that they must have been of a considerable amount in order to be divided among the three brothers. Vishwa Nath Singh died within five days of the award and could not have had any opportunity of paying off the debts fallen in his share. I have, therefore, no doubt that there were debts due from Vishwa Nath Singh, decreed and undecreed, which had to be paid off by Shrimati Sheo Bachan Kuer. It is conceded that payment of debts due from the husband is a legal necessity. It is true that Shrimati Sheo Bachan Kuer inherited considerable property from Vishwa Nath Singh and that she claimed to be in possession of it. But it has to be remembered that she was a young widow who had to encounter difficulties from the very beginning. She had to meet opposition in mutation proceedings. I do not think that she could have realised rents without difficulty. Kashi Nath Singh, particularly when he had to make out a case of his own possession, must have interfered with her collections. She was getting an allowance from Ayodhya Raj but if Ramadhin Singh and Vishwa Nath Singh could not keep out of debt in spite of the allowances that they were getting it would not be surprising if she also could not keep herself out of debt. She had to file a suit to recover her share in the movables. She executed another mortgage in favour of Mahabir Pd., in order to raise money to finance that litigation; but the fact shows that she was in straitened circumstances. The mortgage in favour of Mahabir Pd. has been held to be one without legal necessity but it would be quite a different thing to say that the mortgage in favour of the Nawab was also without legal necessity. Further with great respect to the learned Judges, I am unable to say that the suit by Shrimati Sheo Bachan Kuer for a share in the movables was a speculative suit. It could not be so after the award giving her husband one-third share in the movables. There are no circumstances to suggest that Shrimati Sheo Bachan Kuer was extravagant or had an oblique motive to encumber the estate, or was under the influence of unscrupulous persons. There was no reason to suspect the bona fides of the Nawab or to think that Shrimati Sheo Bachan Kuer was overreached. Among the circumstances and probabilities considered in Ramanand Lal v. Damodar Das, 1942 A. L. J. 94 : (A.I.R. (29) 1942 ALL. 110), are the facts that the transaction was fifty years old, that there was no proof that the widow was extravagant, wasteful or improvident or was surrounded by unscrupulous persons and that the transferee had not acted in any way unfairly or unscrupulously or did not pay full consideration.
29. Kashi Nath Singh and Sharkar Nath Singh never challenged the validity of the mortgage. Shankar Nath Singh was a minor five-six years old but became major by 1885 and remained quiet during the life time of Shrimati Sheo Bachan Kuer and even for eleven years after her death. The suit is certainly within time bat the fact that Kashi Nath Singh and Shankar Nath Singh did not take steps much earlier to recover the property indicates that they were satisfied that it was a mortgage for legal necessity. Kashi Nath Singh for himself and as guardian of Shankar Nath Singh, tacitly accepted that he was bound by the mortgage and the auction sale by not seeking to recover possession over the village through suit No. 139/74 and by claiming instead two-third share in the surplus of rupees fourteen thousand. He even admitted that if he succeeded in the suit he would satisfy the debt of the Nawab. If he and his brother inherited the village on the death of Vishwa Nath. Singh and if Shrimati Sheo Bachan Kuer had no-right to remain in possession of it even as a widow the mortgage by her passed absolutely no title to the Nawab and, legal necessity or no legal necessity, could not be binding on him and his brother. Yet he went out of his way to own that he would satisfy the Nawab's debt if he succeeded in his suit. That must have been because he was satisfied that the debt was genuine, that there was a legal necessity for it and that the Nawab had acted fairly in advancing the money on the mortgage. Even in the other event of his failing in the suit, Kashi Nath Singh conceded that the Nawab could realise his money by proceeding against village Bahadurpur. He would not have made this concession if there was any justification for impugning the mortgage on the ground of want of legal necessity. It is true that in his written statement filed in that suit he stated that it did not appear from the plaint that Shrimati Sheo Bachan Kuer had borrowed the money for any necessity. This looks more like an attack on the pleadings than an attack on the validity of the mortgage so as to bind the reversioners. There are thus over whelming circumstances and probabilities indicating that it the Nawab baa made an enquiry about the existence of legal necessity, she would have been satisfied that it existed. The mortgage and the auction sale are binding upon the reversioners.
30. The plaintiffs are undoubtedly estopped from challenging the mortgage and the auction sale. They are estopped on two grounds, one that in Suit No. 139 Kashi Nath Singh and Shankar Nath Singh ratified the act of Shrimati Sheobachan Kuer of mortgaging village Bahadurpur by claiming a share in the surplus money. Not only did they claim, but they actually received it. They have thus already received part of the value of village Bahadurpur and obviously cannot get the whole village now. It is not their case that they can get a decree for a part of the village now; either they can get a decree for the whole of it or for no part of it; and if they cannot get a decree for the whole of it, it follows that they also cannot get a decree for any part of it. When they accepted the benefit of the auction sale by receiving part of the surplus money, they cannot attack it. They are also estopped by their written statement in suit No. 171/74 that it was open to the Nawab to realise her money by proceeding against the mortgaged villages. The suit was not contested, as it might have been though not ought to have been, on the ground that the mortgage was invalid because there existed no legal necessity and the Nawab could not proceed against anything other than Shrimati Sheo Bachan Kuer's life interest in the mortgaged property. When they conceded that she could proceed against the mortgaged property it is not open to them now to take a contrary plea to the prejudice of the persons who, on the faith of the concession, got the property auctioned and purchased it. "One who, without mistake induced by the opposite party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose"--(Bigelow on Estoppel, 6th Edn., p. 783). Another principle that comes to the help of the auction purchaser is that "when one of two innocent persons--that is, persons each guiltless of an intentional, moral wrong--must suffer a loss, it must be borne by that one of them who by his conduct--acts or omissions -- has rendered the injury possible"--(Pomeroys's Equity Jurisprudence, 4th Edn. vol. 2, para 803). If either Kashi Nath Singh and Shankar Nath Singh must suffer by losing village Bahadurpur, or the defendants, neither of whom was guilty of moral wrong, the former must suffer because the injury was rendered possible by their act of encouraging the Nawab to put the village to auction, and omission to plead in the suit, to which they were parties, that the mortgage did not bind the reversion. The plaintiffs are successors-in-interest of Shankar Nath Singh who was a party in both the suits. He was a minor, but was represented by his certificated guardian Kashi Nath Singh. The estoppel still operates against him. A representation made by an infant is not allowed to operate against him as an estoppel, where the estoppel, if allowed, would have the effect of depriving him of the protection against liability on his contract. But "where the representation was made on behalf of the infant by his guardian, or next friend, or other person legally competent to bind him by such representation, the infant on attaining his majority, or the person so making the representation on his behalf until that event, as the case may be, is liable to be estopped thereby." (See Bower on Estoppel by representation, 1923, p. 162). It is stated by' Bigelow on estoppel, 6th Edn., p. 626, that "an infant is not estopped by the act of his guardian in receiving money unless acting under authority of law," Here, Kashi Nath Singh acted under authority of law (on account of his being a certificated guardian and guardian ad litem) in receiving two-third share in the surplus in suit No. 139/74. There is, therefore, no doubt that Shanker Nath Singh' was estopped by the acts done by his guardian Kashi Nath Singh. I am not favourably impressed with the allegations made by him against Kashi Nath Singh that he was a squanderer and did not manage the estate efficiently, nor with the fact that the certificate issued to him was cancelled by the District Judge in 1881. The certificate was cancelled not because of any abuse of the trust by him but because of his non-compliance with the Court's directions in respect of accounts. There is nothing on the record from which it can be said that he had colluded with Shrimati Sheo Bachan Kuer or the Nawab or that the statements and acts, which now operate as estoppel, were not made bona fide. When there existed a legal necessity, he could not do anything but admit that the mortgage was binding on the reversioners.
31. It was pleaded on behalf of the plaintiffs that there was no plea of estoppel by the defendants. I find that all necessary facts were plead, ed by the defendants. When they were proved, what remained was only to draw the legal inference from them that the plaintiffs were estopped. It was for the Court to draw it, though of course the defendants could have suggested it to the Court. A party cannot be penalised for not suggesting through its pleadings a rule of law to the Court; a party is not bound to plead the law.
32. The learned Additional Civil Judge has also found that the decrees in suits Nos. 139/74 and 171/74 are res judicata in the present suit. The decree in suit No. 189/74 was certainly not res judicata. The cause of action in that suit was so different from that in the present suit that it cannot be said that Kashi Nath Singh and Shankar Nath Singh litigated in that suit under the same title under which the plaintiffs are litigating in the present suit. Kashi Nath Singh and Shankar Nath Singh had no present right in that suit to claim possession; they had lost nothing even by the auction sale of village Bahadurpur so long as Shrimati Sheo Bachan Kuer was alive. The right to possession accrued to them only on her death. It seems to me that if in that suit Kashi Nath Singh and Shankar Nath Singh had claimed the relief of possession over village Bahadurpur or of cancellation of the mortgage or auction sale on the ground of want of legal necessity, it would have caused multifariousness. The question whether the decree in the other suit, No. 171/74, operates as res judicata or not is more difficult. It is not necessary to decide it for the purposes of this appeal because the findings that the reversioners are bound by the auction sale and are also estopped from questioning its validity are sufficient for the complete disposal of the appeal.
33. As regards the property entered in Schedule D, I find that the plaintiffs were not serious in pressing their claim against it in the Court below. The property was sold in execution of a decree for arrears of salary of a Mukhtar-am. The decree was passed in 1876 and the property was put to auction and purchased by defendants 29-31 on 1st May 1877. There is no evidence of any collusion between the decree-holder and Shrimati Sheo Bachan Kuer. The decree-holder was Mukhtar-am of both Bishnath Singh and Shrimati Sheobachan Kuer. The payment of his salary was a legal necessity and the decree passed against Shrimati Sheo Bachan Kuer binds the reversioners.
34. The decree passed by the learned Additional Civil Judge would require a very strong case to be upset. As stated earlier, the present suit was filed 65 years after the transaction impugned and the property in dispute has changed hands more than twice. Though the suit is within time in spite of the lapse of 65 years, it attracts the application of the observation of Lord Wynford in Brooke v. Champernowne, (1837) 4 C. L. & F. 247. His Lordship dealt with an appeal filed in 1836 from a decree passed in 1821 but enrolled in 1836. The limitation for filing an appeal ran from the date of enrolment of the decree and the appeal was within time, even though 15 years had passed. Lord Wynford, however, observed at p. 258 that "from the lapse of time it will require ft stronger ease to get rid of the decree made in 1821, than if it had been appealed against at once."
Similarly, a stronger case would be required to get rid of the mortgage and auction sale than if an attempt had been made to get rid of them at once. The plaintiffs have failed to make out any case, what to say of a strong ease. The decree of the learned Additional Civil Judge is, therefore, affirmed and the appeal is dismissed with costs.
35. This judgment will govern First Appeals From order NOS. 313 of 1942 and 314 of 1942.