Phool Chand v. Sheo Prasad — 1981 DIGILAW 24 (ALL)

JUDGMENT Gopi Nath, J. - These appeals are directed against a common appellate judgment passed by the Additional District Judge, Gorakhpur. They arise out of five suits (Nos. 52 of 1965, 72 of 1961, 73 of 1961, 74 of 1961 and 75 of 1961), Suit No. 52 of 1965 was tiled in the court of the Civil Judge, Gorakhpur while the remaining four suits were filed in the court of Munsif, Bansgaon. All these five suits were decided by the Civil Judge, Gorakhpur by an order dated 22-1-1968. Suit No. 52 of 1965 was filed by Sheo Prasad against Jagdeep Narain and others, for a declaration that the plaintiff was the owner of the property in dispute, which was in possession of tenants, and that defendants Nos. 1 to 5 had no rights, title or interests thereto. It was further prayed that possession delivered to the plaintiff over the property in dispute by demolition of certain constructions, alleged to have been raised unauthorisedly thereon. Suits Nos. 72 to 75 of 1961 were filed by Phool Chandra and others against the tenants, who were in occupation of the premises in dispute, on the allegations that the plaintiffs were the landlord of the premises in suit, and that the tenants, who were in occupation of the premises were liable to vacate the same as their tenancy had been terminated by a valid notice, and they were accordingly required to deliver possession of the property to the plaintiffs. In the suits filed by Phool Chandra and others, defendant No. 1 was the tenant while defendant No. 2 was Sheo Prasad, the rival claimant to the property. The suits were consolidated and disposed of by a common judgment by the Civil Judge, Gorakhpur by his order dated 22-1-1968. Sheo Prasads suit No. 52 of 1965 was decreed, and it was declared that he was the owner of the four stops in dispute, and the defendants Nos. 6 to 9 occupying their same were the tenants of the plaintiff, the defendants Nos. 1 to 5 had no concern with them. The suit was also decreed for possession by demolition of the constructions complained of. Phool Chand's suits Nos. 72 to 75 of 1961 were dismissed. It was held that the plaintiffs of these four suit were not entitled to the decree prayed of cost as they were not the landlord of the property in dispute. The suit was also decreed for possession by demolition of the constructions complained of. Phool Chand's suits Nos. 72 to 75 of 1961 were dismissed. It was held that the plaintiffs of these four suit were not entitled to the decree prayed of cost as they were not the landlord of the property in dispute. 2.2 The following pedigree shall elucidate the relationship between Sheo prasad (the plaintiff of suit No. 525 of 1965) and Phool Chandan and others (the plaintiffs in suit No. 727 to 757 of 1961 :- Sheo Prasads case in suit No. 52 of 1965 was that the entire house in suit belonged to one Nakchhed who was the owner thereof. After his death, his sons, namely Sewak and Sheo Narain, inherited the property. Narain constituted a joint Hindu family, and, on the death of Sewak, Sheo Narain became the sole owner of the house in suit. After the death of Sheo Narain, Mahabir and Raghubir became the owners. Mahabir, being the eldest member, managed the property, and the shops in suit were lot out to tenants. It was alleged that after Mahabirs death, plaintiffs father, Raghubir, became the owner of the house in suit, and that Jagdeep Narain, Phool Chand, Govind Ram, Uma Shankar Ram and Nandu Ram had no right, title or interest in the property though some of them were in possession of the same as licensees. Their licence had been revoked, Sheo Prasad claimed to be the owner of the property and entitled to the reliefs prayed for in suits No. 52 of 1965. The defence delivered by defendants Nos. 1 to 5 in Sheo Prasads suit inter alia was that Mahabir had executed a usufructuary mortgage of the property in suit in favour of Binda Ram, the predecessor-in-interest of defendants Nos. 2 to 5, and that be had thereafter made a gift of the same in favour of Munni Lal, the son of Binda Ram, on 9-5-1935, the house in dispute, as such, belonged to Munni Lal, who was the owner thereof since 9-5-1935. A rival claim was thus set up to the house in suit on behalf of defendants Nos. 1 to 5 on the basis of the gift-deed, alleged to be executed in favour of Munni Lal. A rival claim was thus set up to the house in suit on behalf of defendants Nos. 1 to 5 on the basis of the gift-deed, alleged to be executed in favour of Munni Lal. The mortgage-deed dated 16-5-1924 was not set up with a view to creating a mortgagees right in favour of Binda Ram but to disclosing an event leading upto the execution of the gift-deed dated 9-5-1935. The further defence was that the suit was barred by time, and the defendants had matured a title by adverse possession by being in possession for a period over twelve years. The tenants (arrayed as defendants Nos. 6 to 9 in Sheo Prasads suit) accepted Sheo Prasads claim as their landlord, and alleged themselves to be his tenants. 3. Phool Chand and others filed suits Nos. 72 to 75 of 1961 on the allegations that part of the property in dispute belonged to Nakchhed, the common ancestor of the parties, while the other part was acquired by Mahabir which, was his self-acquired property ; that Mahabir executed a usufractuary mortgage of the property in suit in favour of Binda Ram, and settled it thereafter in favour of Munni Lal (Binda Rams son) by gift-deed ; that Mahabir was the exclusive owner of the property in dispute as the same was his self-acquisition, and Sheo Prasad had no right title of interest in the same and that the tenants occupying the premises were the tenants of Phool Chand and others (the plaintiffs in suits Nos. 72 to 75 of 1961), and they were liable to be ejected as their tenancy had been terminated and the plaintiffs were entitled to recover the rents due from them, and to be put in possession of the property. It will be seen that the plaintiffs in suits Nos. 72 to 75 of 1961 were laying claim to the property in dispute as owners thereof on the basis of the settlement alleged to be made by Mahabir, the exclusive owner thereof. The defence delivered by Sheo Prasad was the same as the case set up by him in suit No. 52 of 1965. He claimed title to the property on the ground that it belonged to Nakchhed, the common ancestor of the parties, and that it had devolved upon his descendants after his death. The defence delivered by Sheo Prasad was the same as the case set up by him in suit No. 52 of 1965. He claimed title to the property on the ground that it belonged to Nakchhed, the common ancestor of the parties, and that it had devolved upon his descendants after his death. It was alleged that Mahabir having died issueless, Sheo Prasads father namely Raghubir, became the exclusive, owner of the property, and he succeeded him as his son. It was claimed by Sheo Prasad that he was the owner of the property in suit, and Phool Chand and others had no right, title or interest in it. Jagdeep was alleged to have been allowed to occupy a part of the premises as licensee and ins licence having been revoked, his occupation thereon was illegal, and the constructions raised by him were unauthorised and were liable to be demolished. Sheo Prasad denied knowledge of any mortgage as having been executed by Mahabir. Title of the plaintiffs over the property in dispute was denied, and it was alleged that the tenants in the premises were not the tenants of the plaintiffs of the said suits but were the tenants of Sheo Prasad. 4. The trial court held that the pedigree set up by Sheo Prasad was correct, that Mahabir and Raghubir were members of a joint Hindu family, that the property in dispute belonged to Nakchhed, the common ancestor, that no part of it was the acquisition of Mahabir, that it had devolved upon Mahabir and Raghubir, the father of Sheo Prasad, as heirs of Nakchhed after his death, that Mahabir having died issueless, the property belonged exclusively to Raghubir that the mortgage, alleged to have been executed by Mahabir in the year 1926 was fictitious that it did not affect the interest of Sheo Prasad in the property in dispute ; that the case set up by Phool Chand and others as regards part of the property being the self-acquisition of Mahabir, was not made out; that the mortgage-deed dated 26-5-1924, alleged to be executed by Mahabir, appeared a collusive document and that not consideration had passed under the deed to Mahabir, and he was no competent to execute the same claiming the property as his exclusive property. It was further held that the gift-deed dated 9-5-1935 was also a fraudulent and collusive transaction, and it was got executed at a time when Mahabir was seriously ill. The trial court recorded its findings on issues Nos. 3, 4 and 5 of suit No. 52 of 1965 and on issue No. 1 of suits No. 72 to 75 of 1961 as follows :- ".........I hold that plaintiff Sheo Prasad of suit No. 52 of 1965 is owner of the entire house in suit. Neither defendant No. 1 Jagdeep Narain nor Phool Chand and others, defendants 2 to 5 are owners of any portion of the house in dispute..................." It further held that Jagdeep Narain was in possession of the eastern portion of the house in suit as a licensee, and the licence having been revoked in May 1965 his position thereafter was that of a trespasser. The constructions made over the property in suit were held unauthorised and Sheo Prasad was found entitled to obtain possession of the same after demolition of the constructions. On the question of limitation, covered by issue No. 9 of suit No. 52 of 1965, the trial court held that the property was in possession of tenants who were the tenants of Sheo Prasad he accordingly was in constructive possession of the property, and the suit was not barred by time. It further held that Phool Chand and others who claimed title by adverse possession, had failed to establish the same ; they were not in possession of any portion of the property, and the suit was not barred either under Art. 64 or 65 of the Limitation Act (1963) suits Nos. 72 to 75 of 1961, filed by Phool Chand and others, were dismissed on the ground that they had neither any title to the property in suit nor were they the landlord of the same. The tenants of the property in quit were found to be the tenants of Sheo Prasad, and they having paid the rent to him, nothing was found due from them. It was held that the rent had been paid by the tenants to the rightful owner, and the plaintiff of suits Nos. 72 to 75 of 1961 not being the landlord of the property in suit, their suits for ejectment and recovery of rent from the tenants, were liable to be dismissed. It was held that the rent had been paid by the tenants to the rightful owner, and the plaintiff of suits Nos. 72 to 75 of 1961 not being the landlord of the property in suit, their suits for ejectment and recovery of rent from the tenants, were liable to be dismissed. Sheo Prasads suit No. 52 of 1965 was decreed while Phool Chands suit Nos. 72 to 75 of 1961 were dismissed. 5. Against the decrees passed, appeals were filed to the District Judge. Jagdeep (defendant No. 1 of suit No. 52 of 1965) filed appeal No. 4 of 1968 which related to the decree passed against him for possession of the constructions raised on the property in dispute. The dispute in this appeal related to the eastern portion of the house in dispute (marked by letters E.F.G.H). Appeal No. 9 of 1968 was filed by Phool Chand and others against the decree passed in suit No. 52 of 1965 declaring Sheo Prasad as the owner of the property in dispute. These appeals were disposed of by the Additional District Judge, Gorakhpur by a common judgment. He held that the eastern portion of the house in dispute, over which the defendant Jagdeep Narain was alleged to have raised constructions, was a self acquired property of Mahabir ; and that it was not the joint-family-property of Raghubir and Mahabir. It found that the plaintiff Sheo Prasad had failed to prove that the disputed constructions lay over the plot which belonged to Nakchhed ; hence Sheo Prasads claim over this part of the property failed, and he could not be declared owner of the eastern portion of the house in dispute. Jagdeep Narain (defendant No. 1 of suit No. 52 of 1965) was not found licensee of Sheo Prasad in respect of the eastern portion of the house in suit, and his ejectment hence could not be claimed by Sheo Prasad. Sheo Prasads suit in respect of the eastern portion of the house was accordingly dismissed. As regards the western portion, the court below found that it was the acquisition of Nakchhed, the common ancestor of Mahabir and Raghubir, and hence it was an ancestral properly in their hands. Mahabir and executed a mortgage deed in respect of the entire house. Sheo Prasads suit in respect of the eastern portion of the house was accordingly dismissed. As regards the western portion, the court below found that it was the acquisition of Nakchhed, the common ancestor of Mahabir and Raghubir, and hence it was an ancestral properly in their hands. Mahabir and executed a mortgage deed in respect of the entire house. It recited that it was his self-acquired property, and be was mortgaging the same in order to discharge certain debts incurred by him, and to start a business. The court below found that the mortgage did not appear to have been redeemed but the western portion of the disputed property being the joint-family-property of Mahabir had Raghubir, the former could not alienate it. After Mahabirs death, Daghubir became its owner by survivorship, and after Raghubirs death, it devolved upon Sheo Prasad as its absolute owner. The tenants occupying such property were found to be the tenants of Sheo Prasad. It was held that the mortgage by Mahabir did not affect Sheo Prasads interest in the property, and he could claim to be the owner of the western portion, which was a tenanted accommodation. His suit to that extent was found rightly decreed by the trial court. The suit was further found not barred by time. Appeal No. 9, filed by Phool Chand and others, was accordingly dismissed, and the trial courts decree in that regard was affirmed. The result was that the trial courts decree was modified. Sheo Prasads suit, so far as it related to the eastern portion of the house in dispute, was dismissed, and as regards the western portion, it was decreed. It may be mentioned that appeals filed against the decree passed in suits Nos. 72 to 75 of 1961 were also dismissed. 6. Aggrieved, six appeals have been filed in this court. Second Appeal No. 2142 of 1971 has been filed by Phool Chand and others against the decree passed by the court below decreeing Sheo Prasads suit No. 52 of 1965 for the western portion of the house in dispute, and Second Appeal No. 2415 of 1971 has been filed by Sheo Prasad against the decree passed by the court below dismissing his suit No. 52 of 1965 for the eastern portion of the house in dispute. Second Appeal No. 2215 of 1971 is filed against the decree passed by the court below in Civil Appeal No. 5 of 1968, which arose out of suit No. 72 of 1961. Second Appeal No. 2215 of 1971 is filed against the decree passed by the below in Civil Appeal No. 5 of 1968, which arose out of suit No. 72 of 1961. Second Appeal No. 2216 of 1971 is filed against the decree passed in Civil Appeal No. 8 of 1968, arising out of suit No. 73 of 1961, Second Appeal No. 2217 of 1971 is filed against the decree passed in Civil Appeal No. 7 of 1968 arising out of suit No. 75 of 1961. Second Appeal No. 2218 of 1971 is filed against the decree passed in Civil Appeal No. 6 of 1968 arising out of suit No. 74 of 1961. Second Appeals Nos. 2215 to 2218 of 1971 this arise out of the decrees passed by the court below in Phool Chands suits Nos. 72 to 75 of 1961 for ejectment of the tenants from the premises in dispute. These suits have been dismissed by the two Courts below. Thus these six Second Appeals arise out of two sets of litigation - one started by Sheo Prasad suit No. 52 of 1965 for declaration of his title over the property in dispute, and the other started by Phool Chand and others against the tenants occupying the premises for their ejectment and recovery of arrears of rent on the ground of their tenancy having been determined according to law. It may be mentioned that Phool Chands suits have been dismissed by both the courts below on the finding that the tenants occupying the premises were the tenants of Sheo Prasad who was the owner of the premises, and Phool Chand and others (the plaintiffs of suits Nos. 72 to 75 of 1961) were neither the owners nor the landlord of the same. These appeals have been consolidated as they raise common questions of law and fact, and shall be disposed of by a common judgment. 7. Second Appeal No. 2415 of 1971, filed by Sheo Prasad, challenges the decree passed in Civil Appeal No. 4 of 1968 in so far as it relates to the eastern portion of the house in dispute. These appeals have been consolidated as they raise common questions of law and fact, and shall be disposed of by a common judgment. 7. Second Appeal No. 2415 of 1971, filed by Sheo Prasad, challenges the decree passed in Civil Appeal No. 4 of 1968 in so far as it relates to the eastern portion of the house in dispute. The court below found that eastern port on of the house in dispute was a self-acquired property of Mahabir, and that it had not been pooled in the joint-family-property, and he had always treated it as his separate property. It was accordingly its absolute owner, and Sheo Prasad had failed to prove that this property was an acquisition of Nakchhed, and was a joint-family-property in the hands of Mahabir. It further found that Jagdeep Naram was in possession of the disputed property not as a licensee on behalf of Raghubir, father of Sheo Prasad, but in his own right. The learned Judge observed that Jagdeep being the sisters son of Mahabir could be treated as his heir at law under the amendment to Hindu Law by Act No. 2 of 1929. The appellant was and have failed to establish his title over the property in dispute and his claim to eastern portion could accordingly not succeed. The suit was thus dismissed as regards the eastern portion of the house in dispute. The finding recorded by the learned Judge on the question of the acquisition of the eastern portion of the house in dispute by Mahabir and its being treated as his exclusive property is a finding of fact, based on an assessment of the evidence on record, and is binding in second appeal. It must, therefore, be held that the eastern portion of the house in dispute was the self-acquired property of Mahabir, and he had dealt with it as its exclusive owner. The plaintiffs claim that it was an ancestral property which had subsequently become a joint-family-property in the hands of the co-parceners having not been established the claim was rightly ejected. Sheo Prasads appeal accordingly fails, and is dismissed. 8. Second Appeal no. 2142 of 1971, filed against the decree passed in Civil Appeal no. 9 of 1968, and Second Appeals nos. 2215 to 2218 of 1971, filed against the decrees passed in civil Appeals nos. Sheo Prasads appeal accordingly fails, and is dismissed. 8. Second Appeal no. 2142 of 1971, filed against the decree passed in Civil Appeal no. 9 of 1968, and Second Appeals nos. 2215 to 2218 of 1971, filed against the decrees passed in civil Appeals nos. 5 to 8 of 1968, are concerned with the title of Phool Chand and others, the appellants in those appeals, over the western portion of the house in dispute. The findings recorded by the court below are that the property in dispute was the ancestral property of the joint family consisting of Mahabir and Raghubir, the descendants of Nakchhed that it was not the self-acquired property of Mahabir; that Mahabir was the Karta of the family; that the house was in the occupation of tenants who had been inducted during the life-time of Mahabir ; that since Raghubir used to be away in Calcutta in connection with his business, the property was dealt with by Mahabir, and he executed a mortgage in respect of the same for a sum of Rs. 1000/- in favour of Binda Ram, his sisters son; and that he wrongly described the property as the self-acquired property and wrongly claimed himself as its absolute owner. The recitals in the mortgage-deed that the property was his exclusive property, and he had mortgaged it to pay off his debts and to start a business of his own, did not bind Sheo Prasad, the son of Raghubir, and his title to the property was not affected by the mortgage made by Mahabir. The court below further found that Sheo Prasad was the owner of the western portion of the house in dispute, which was a tenanted accommodation, and he was entitled to the declaration sought in respect of it. It was further found that the tenants had always acknowledged Sheo Prasad and his father, Raghubir as their landlord, and they had regularly paid rent to them. The court found that the tenants never treated Phool Chand and others as their landlord, and since the mortgage executed by Mahabir did not bind Sheo Prasad, the tenants rightly regarded Sheo Prasad as their landlord and paid rent to him Dissatisfied with the decrees, Phool Chand and others preferred the above second appeals. The court found that the tenants never treated Phool Chand and others as their landlord, and since the mortgage executed by Mahabir did not bind Sheo Prasad, the tenants rightly regarded Sheo Prasad as their landlord and paid rent to him Dissatisfied with the decrees, Phool Chand and others preferred the above second appeals. Learned counsel for the appellants mainly contended that Mahabir, as the karta of the joint Hindu family consisting of himself and Raghubir, had competently executed the mortgage in favour of Binda Ram, the predecessor-in interest of Phool Chand and others (defendants nos. 2, 3 and 4 in suit no. 52 of 1965, and the plaintiffs in suits nos. 72 to 75 of 1961). Phool Chand and others could accordingly be treated as the mortgagees-in-possession through the tenants over the property in dispute, and Sheo Prasad could not claim to be the owner thereof. If Sheo Prasad was aggrieved by the mortgage, be could seek to avoid it through proper proceedings on the ground that it was not made for legal necessity, and, until that he was done, was bound by it and he could not dispute the title of Phool Chand and others. It was urged that an alienation made by a Karta was only voidable at law at the instance of a coparcener but Sheo Prasad feigned ignorance of the alienation, and did not challenge it. It was further urged that Phool Chands suits against the tenants should have been decreed on the finding that they were the tenants of the mortgagees, and they could not attorn to any person other than the mortgagees. It was further urged that Sheo Prasad could, if at all, claim a title to the equity of redemption over the property in dispute, and if the courts below sought to declare him as owner, they should have done so subject to the mortgage executed by Mahabir. It was also suggested at one stage that the mortgage having not been redeemed, Sheo Prasads title to the property any had extinguished. This point was however not pressed as the question of redemption was not found relevant to the controversy involved. This the whole argument of the appellants centred round the effect of the mortgage executed by Mahabir in the year 1924. This point was however not pressed as the question of redemption was not found relevant to the controversy involved. This the whole argument of the appellants centred round the effect of the mortgage executed by Mahabir in the year 1924. The main contention was that the mortgage having not been challenged and it having not been set aside, it would be given effect to as regards the right, title and interest of Phool Chand and others in the property in dispute. The case was never argued on these lines in the courts below. The mortgage was set up by the appellants in the courts below to prove that Mahabir was the exclusive owner of the Property in dispute, and that Sheo Prasad had no right, title or interest therefore. The appellants relied on the mortgage-deed dated 16-5-1924 to show that Mahabir treated the property as his self-acquired property, and not as a joint-family-property of himself and Raghubir. This deed was accordingly relied upon by the appellants not in proof of their title as mortgagees but to establish that Sheo Prasad or his father had no concern with the property, and that they had no right, title or interest therein. The case set up by Phool Chand and others in the courts below was that Mahabir was the exclusive owner of the property in dispute, and that he had mortgaged the same in that capacity. The issue struck in the suits also was whether Mahabir was the exclusive owner of the property in dispute or it was a joint-family-property of himself and Raghubir. The appellants never raised a plea that they were mortgagees of the joint-family-property and were entitled to hold the same as mortgagees until it was redeemed. Sheo Prasad challenged the transaction as collusive, and as one executed without consideration. The trial court upheld that case the appellate court did not affirm that view. The appellants went to the extent of challenging that Sheo Prasad was not an heir of Nakchhed. According to them, Sheo Narain, Raghubir and Sheo Prasad were not the descendants of Nakchhed, and they did not constitute a joint family with Sewak and his son, Mahabir. The pedigree set up by Sheo Prasad was denied. Phool Chand and others accordingly did not claim to be mortgagees of the joint Hindu family property alienated by Mahabir, for any legal necessity. The pedigree set up by Sheo Prasad was denied. Phool Chand and others accordingly did not claim to be mortgagees of the joint Hindu family property alienated by Mahabir, for any legal necessity. In order to support an alienation of the joint-family-property the burden lay on the alienee, to prove legal necessity. 9. Far from raising a plea of legal necessity to support the alienation and leading any evidence to prove the same, the appellants denied that the property was a joint-Hindu-family property, and was alienated for legal necessity. It was submitted that without a plea being raised by Sheo Prasad challenging the alienation for want of legal necessity, the appellants were not called upon to establish the alienation for legal necessity. This contention, to my mind, is wholly misconceived. When the appellants did not set op an alienation on behalf of the joint Hindu family. Sheo Prasad was not called upon to accept the alienation as one made on behalf of the joint Hindu family and then to challenge the same for want of legal necessity. The mortgage was not set up by the appellants as one made by a Karta for legal necessity, hence it did not require to be challenged as an alienation made on behalf of the joint family by a karta without legal necessity. The fact that the mortgage had been found to be made by Mahabir did not lead to its being made by him as karta for legal necessity to bind the joint family, and I am I not inclined to accept the contention that the mortgage should be held as binding on Sheo Prasad for want of its challenge on the ground of legal necessity. The entire argument of the learned counsel for the appellants was that the mortgage having been made by Mahabir, who happened to be the karta of the joint family transaction was binding on Sheo Prasad until it was set aside by a proper proceeding. The mortgage was not made by Mahabir as Karta of the family. It was made by setting up a hostile title in himself adverse to the interest of the joint family. He claimed to be the absolute owner of the property in dispute. The question whether such a transaction was binding on the other coparcener. 10. In Balwant Singh v. Maharaj Singh (1912 A.L.J.R. (Vol. It was made by setting up a hostile title in himself adverse to the interest of the joint family. He claimed to be the absolute owner of the property in dispute. The question whether such a transaction was binding on the other coparcener. 10. In Balwant Singh v. Maharaj Singh (1912 A.L.J.R. (Vol. IX) 509) it was held that a mortgage by a co-parcener, treating a joint-family property as his exclusive property, was not binding on another co-parcener who was a minor. The property in that case was mortgaged by the elder of the two brothers, the younger being a minor, treating the property as his exclusive property. Signatures of the younger brother were obtained on the deed in token of his consent to the alienation. The Privy Council held that the alienation did not bind the younger brother. Their Lordships observed as follows :- "...The mortgage was not made by Sheoraj Singh as the manager of the family, or in any respect as representing Maharaj Singh, and as Maharaj Singh was then a minor, the mortgage-deed as against not merely voidable, it was void and of no effect, and must be regarded as a mortgage-deed to which he was not even an assenting party and as a mortgage deed which did not affect him or his interest in the estate." In Nandan Prasad and another v. Abdul Aziz and another (1923 A.L.J.R. (Vol. XXI) 372) it was held :- "It is elementary law that one person cannot be bound by the act of another unless it is done in a representative capacity either as agent or guardian or in some similar capacity. Where one S, a widow and mother of 2 minor sons, mortgaged as of right certain property without the assent of the sons and it was subsequently found that the property was not hers, held, that any dealings with it on Ss part were ipso facto void. In Nandan Prasad's case (supra). Balwant Singh v. Maharaj Singh (supra) was relied upon. In Nandan Prasad's case (supra). Balwant Singh v. Maharaj Singh (supra) was relied upon. The Bench observed : "Having found that Musammat Somari executed the mortgage not as representing the estate of the minors, but as claiming to be absolute owner of the property, the courts below should have dismissed the suit as against the appellants, and as against the mortgage property which belonged to them..." The ratio of these cases leads to a rule that where a transferor asserts at absolute title to a property in himself adverse to the interest of the person having interest therein, he cannot be considered as making an alienation in a representative capacity, the position assumed by the former is quite inconsistent with any intention to act on behalf of the latter whose interest in the property transferred he was repudiating (see Muthiah Chettiar v. M.M. Rayala Ayyar Nagaswami Ayyar & Co. through partner N.M. Nagaswami Ayyar and others, AIR 1944 Madras 98, at p. 100). It is clear that when Mahabir was asserting an exclusive title in the property in dispute, he could not be treated as representing the interest of the other co-parceners in the joint-family-property, as the position assumed by him was clearly inconsistent with any intention to act on behalf of the coparcenary body whose interest in the property transferred he was repudiating, and hence the alienation made by him did not bind Sheo Prasad or his lather, Raghubir. The principle that an alienation made by a Karta needs to be challenged in order to remove its effects on the property transferred is not attracted in the instant case. Sheo Prasad was not called upon to challenge the alienation for want of legal necessity, and then to establish his tale to the property in dispute. The recitals in the deed themselves do not state any legal necessity for the alienation. A new case is now sought to beset up in appeal. Though Mahabir happened to be the Karta of the family, and he had made a mortgage he had done it as an absolute owner and not in a representative capacity, the transaction would not have the effect of binding Sheo Prasad. The case has to be considered on the pleadings as set out by the parties and although a point of law can be allowed to be raised but not divorced of the pleadings set out. The case has to be considered on the pleadings as set out by the parties and although a point of law can be allowed to be raised but not divorced of the pleadings set out. It was submitted that even an action which is void needs to be questioned by legal proceedings in order to get rid of its effects, and since the alienation made by Mahabir was not questioned, the same would be effective in law. Reliance was placed on F Hoffmann-La Roche & Co. AG and others v. Secretary of State for Trade and Industry, (1974) 2 All E.R 1128 at p. 1154. That case was concerned with the vires of a subordinate Legislation, and it was observed that there was presumption of validity in respect of a regulation, and unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose. The case is not applicable in the instant case. The whole question in the instant case is whether the alienation made by Mahabir was binding on Sheo prasad and whether it needed to be challenged by him in the manner suggested by the learned counsel tor the appellants, or could it be ignored by him for the purposes of the claim laid. Sheo Prasad pleaded ignorance of the mortgage and I have already held that it did not bind him. He could, in the circumstances no be called upon to set up a case against himself and then to challenge it in order to establish his title to the property. The property was in the possession of tenants. They paid rent to Sheo Prasad. They accepted him as their landlord Sheo Prasad claimed title to the property as an owner vis-a-vis the tenants and this interest was not affected by the mortgage made by Mahabir in the manner he did. The courts below have recorded a finding that a relationship of landlord and tenant existed between Sheo Prasad and the tenants occupying the premises. They accepted Sheo Prasad as their landlord and paid rent to him. The Courts below have recorded a finding to this effect which is based on appreciation of the evidence on record. It is binding in these appeals. 11. They accepted Sheo Prasad as their landlord and paid rent to him. The Courts below have recorded a finding to this effect which is based on appreciation of the evidence on record. It is binding in these appeals. 11. It was urged on behalf of the appellants that after the execution of the mortgage in favour of Binda Ram, the tenants became the tenants of the mortgagee, and Phool Chand and others could treat them as their tenants and claim the reliefs they did in the suits filed by them, if Mahabirs mortgage did not affect or bind Sheo Prasad, and the tenants treated him as their landlord, and paid rent to him, the mere execution of a mortgage by Mahabir would not disturb that relationship. The intention of the parties played an important part in the case. The relationship of landlord and tenant was found established between Sheo Prasad and the tenants by the two courts below. It was further found that the tenants had paid the entire rent to Sheo Prasad. They were accordingly not defaulters in the payment of rent. The courts below were right in dismissing Phool Chand's suits for ejectment of the tenants from the accommodation in dispute on the ground that they were not defaulters in the payment of rent as they had paid rent to Sheo Prasad whom they treated as their landlord. 12. It was then suggested that the declaration in favour of Sheo Prasad if any should have been granted subject to the mortgage executed by Mahabir. Sheo Prasad claimed title to the property, and he has been found to be the owner thereof. The execution of the mortgage by Mahabir did not divest Sheo Prasad of his title. He could claim the declaration he sought. 13. For the reasons discussed, the appeals lack force. 14. The appeals fail, and are dismissed with costs.