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Shaikh Ali Hassan vs Faguni Rai And Ors. And Shaik … on 8 December, 1924

Patna High Court
Shaikh Ali Hassan vs Faguni Rai And Ors. And Shaik … on 8 December, 1924
Equivalent citations: 86 Ind Cas 856
Author: Das
Bench: Das


JUDGMENT

Das, J.

1. This appeal arises out of a suit instituted by the appellant for setting aside a decree obtained against him and certain other persons by the defendants first party. Two questions were raised: first, that the decree was a fraudulent decree, and secondly, that the plaintiff was a minor at the date of the institution of the suit, although he was sued as a major. The First Court dismissed the suit altogether holding that the plaintiff was not a minor at the time when the previous suit was instituted. On the other question the First Court decided in favour of the defendants first party. On appeal the lower Appellate Court agreed with the Munsif in holding that no fraud has been proved. In regard to the other question, namely, whether the plaintiff was a minor at the date of the institution of the previous suit, he differed from the Munsif. He has come to the conclusion that the plaintiff was a minor at the date of the institution of the previous suit and he has held that the decree is a nullity so far as he is concerned. But having come to that conclusion he has investigated the title of plaintiff to the property in dispute and as a result of this investigation he says that the plaintiff has no interest in the property and that, therefore, “so far as the decree affects the property, the plaintiff has nothing to complain and so the decree to this extent must stand valid.” I differ from the learned District Judge on this point. Whether the plaintiff has an interest in the property was not a matter for him to consider in this suit. The defendant first party sued the plaintiff as having an interest in the property and that matter is concluded so far as this litigation is concerned; and in any event upon the finding of the learned Judge that the plaintiff was a minor at the date of the institution of the previous suit, he had no option but to give a declaration to the plaintiff that the decree was a nullity so far as he was concerned. Mr. Murari Prasad appearing on behalf of the opposite party says that this is what the learned District Judge has substantially done. Well, i£ this is what he has done, then there can be no objection to my putting it in proper form, so that no controversy can arise in future. I hold that the decree is a nullity so far as the plaintiff is concerned and that the plaintiff is entitled to a declaration to that effect. Mr. Hasan Imam contends that I ought to set aside the entire decree as the interest of the plaintiff is joint, with the defendants second party who apparently were the defendants in the previous suit. 1 am clearly of opinion that this contention should fail. Whether the plaintiff has any inter st or not I do not know. But in any case, so far as he is concerned, the decree is a nullity and I am not prepared to say that the decree is not perfectly good as against the defendants second party. What the effect of the decree will be upon the defendants second party I am not prepared to say at the present moment. But in any case the plaintiff is entitled to the declaration that the decree is a nullity as against him and that it has no operation so far as he is concerned.

2. Mr. Murari Prasad contends before me that the learned Judge’s finding that the plaintiff was a minor at the date of the institution of the suit ought to be set aside. The question is a pure question of fact and I am not prepared to admit that it is open to me to investigate the ground upon which the learned Judge has come to that conclusion. The appeal succeeds to the extent I have indicated. There will be no order as to costs. The cross-objection is dismissed.

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