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Madhya Pradesh High Court · body

2000 DIGILAW 23 (MP)

PRAKASH CHANDRA v. NAND KISHORE

2000-01-06

A.K.GOHIL

body2000
A. K. GOHIL, J. ( 1 ) THIS first appeal has been preferred by the appellant-plaintiff against the judgment and decree dated 9. 2. 1987 passed in Civil Suit No. 1-A/87 by the First add1. District Judge, Mandsaur dismissing the suit which was filed in forma-pauperis for declaration that the minor plaintiff Prakash chandra is the owner of the house in suit and the sale deed dated 21. 2. 1977 and 24. 9. 1977 are illegal and void and not binding on the plaintiff. ( 2 ) THE material facts of the case are that the defendant No. 3 Hazarilal is the father of defendant No. 4 Manoharlal. The appellant-plaintiff Prakash Chandra is the brother of manoharlal. Baburam, the real brother of the father of the plaintiff had filed the suit as a next friend on behalf of Prakash Chandra who was minor on the date when the suit was filed, i. e. on 5. 10. 1978. The plaintiff and defendant no. 4 Manoharlal are the sons of defendant No. 3 Hiralal. All are members of joint hindu family and governed by Banaras School of Mitakshara Law. It was alleged in the plaint that house bearing Municipal No. 13/3 is ancestral property of the plaintiff and defendant nos. 3 and 4. The defendant No. 3 without legal necessity or for the benefit of the estate sold the suit house for Rs. 24,000/- on 24. 2. 1977 to defendant No. 2 and delivered its possession to the vendee. Later on defendant No. 2 Chandmal, natural guardian of Vimal kumar who is minor had also illegally disposed of and delivered the possession of the house to the defendant No. 1 Nandkishore through a sale deed dated 24. 9. 1977 for a consideration of Rs. 30,000/- without obtaining requisite permission under the provsions of Hindu minority and Guardianship Act, 1956. The defendant Nos. 1 and 2 did not acquire any title. Therefore, the plaintiff had filed the suit for declaration, recovery of possession of the house and for compensation for use and occupation thereof by defendant Nos. 1 and 2. It was also contended that the suit house was used by the joint family of plaintiff and defendant Nos. 3 and 4 as a dwelling house. The suit was filed by his next friend Baburam after leave to sue in forma pauperis. By order dated 30. 6. 1 and 2. It was also contended that the suit house was used by the joint family of plaintiff and defendant Nos. 3 and 4 as a dwelling house. The suit was filed by his next friend Baburam after leave to sue in forma pauperis. By order dated 30. 6. 1979 leave to sue in forma-pauperis was granted and thereafter, the suit has proceeded ex-parte against repondent-defendant Nos. 3 and 4 Hiralal and Manoharlal. The respondent-defendant Nos. 1 and 2 Nandkishore and vimal Kumar contested the suit on the ground that Baburam had no power to file the suit as next friend of plaintiff Prakash Chandra. They denied that the house in suit is ancestral and that the plaintiff Prakash Chandra and the defendant Nos. 2 and 3 are governed by the banaras School of Mitakshara Law. It was further denied that they are members of joint hindu family. It was further contended that the defendant No. 3 Hiralal sold the house for legal necessity and benefit of the estate. The house sold was not well-situated and was of lesser value. There was no way to go upstairs from the road and there was difficulty about latrine as well. The vendor Hiralal was facing every day quarrel with his brother and his progamy. The house in suit was sold with a view to construct better house and thereafter, he did construct a better house at Bus Stand mandsaur in which the plaintiff Prakash chandra and defendant Nos. 3 and 4 are residing and living therein. It was further contended that the defendant No. 3 Hiralal required money for marriage of his son-defendant No. 4 Manoharlal and also for his daughter and also for opening a shop for unemployed son Manoharlal and also for the son of the plaintiff. It was further contended on behalf of defendant No. 2 that becouse a dispute arose between defendant No. 2 Vimal Kumar and defendant Nos. 3 and 4 Hiralal and Manoharlal about some passage and for that C. O. S. No. 84/77 was filed before the Civil Judge Clas II, mandsaur. The present suit has been instituted with a view to pressurise the defendant Nos. 1 and 2 to withdraw their suit. ( 3 ) THE defendants have further contended that the defendant No. 3 Hiralal got the suit house in partition. The present suit has been instituted with a view to pressurise the defendant Nos. 1 and 2 to withdraw their suit. ( 3 ) THE defendants have further contended that the defendant No. 3 Hiralal got the suit house in partition. It was further contended that there was no necessity for Chandmal defendant No. 2 to take any permission for selling the house in suit and the plaintiff Prakash chandra had no right to challenge this sale on the ground of permission. The house is not only residential, but includes a shop also. Chandmal had purchased the house in good faith after paying the consideration. The plaintiff is not entitled to any mesne profits. The real owner is Chandmal. The suit is based on non-joinder of parties as Chandmal has not been added as a party to the suit. The defendants claimed dismissal of the suit with compensatory costs. ( 4 ) THE defendant No. 2 Vimal Kumar has also raised objection about jurisdiction of the court on the ground that as per the objection of the plaintiff, the house in suit is worth Rs. 30,000/- and he has accelerated the value of the house by demanding mesne profits. ( 5 ) ISSUES were framed and evidence pf both the parties was also recorded. The Trial court found that Baburam had a right to file the suit as a next friend. The plaintiff and defendant Nos. 3 and 4 constituted joint Hindu family and are governed by Banaras School of Mitakshara Law and the house in suit was the ancestral property of joint Hindu family. The Court further found that the sale deed executed on 21. 2. 1977 by defendant No. 3 hiralal in favour of defendant No. 2 Vimal kumar is not illegal and the same is binding on him. Chandmal had the right to further execute the sale deed and, therefore, further sale is also not illegal as the plaintiff had no right to challenge the same. The Trial Court further found that the plaintiff is not entitled for possession and also for mesne profits or for compensation or damages. The Court had the jurisdiction to hear the suit. The suit was dismissed. ( 6 ) I have heard the learned Counsel for the parties and perused the evidence and documents on record. 1 have also considered the rival submissions of the learned Counsel for the parties. The Court had the jurisdiction to hear the suit. The suit was dismissed. ( 6 ) I have heard the learned Counsel for the parties and perused the evidence and documents on record. 1 have also considered the rival submissions of the learned Counsel for the parties. The learned Counsel for the appellant did not argue the appeal seriously and has not raised any legal question. ( 7 ) AS per the judgment of the Trial Court, the main questions for consideration before this Court are whether the sale deed executed by defendant No. 3 Hiralal in favour of Vimal kumar was legal and valid and for the benefit of the family, and secondly, whether another sale deed executed by Chandmal in favour of defendant No. 1 Nandkishore was legal and valid and whether the plaintiff had the right to challenge the same or not? ( 8 ) THE Trial Court recorded the finding on Issue No. 6 that it is an undisputed position that the house in suit is a double storeyed building with the ground floor as a shop and the upper storey as residential part and it was further held that the suit house is the dwelling house and was the property of joint Hindu family of the plaintiff Prakash Chandra and defendant Nos. 3 and 4 Hiralal and Manoharlal. But because this house was a dwelling house, the sale deed dated 21. 2. 1977 was not rendered illegal. The Trial Court further recorded that in Ex. D/2 sale deed, the respondent No. 1 Hiralal had made an averment that he was in dire need of money as he was leaving the house for getting another house and he needed money for purpose of purchasing another house as well. It was admitted by Baburam P. W. 1 thatthe appellant-plaintiff Prakash Chandra was residing with his father Hiralal defendant no. 3 which indicates sufficiently that their interest is not adverse to each other. It was further found proved that from the statement of P. W. 1 Baburam who clearly says that Hiralal had used the aforesaid money for marriage and education of his sons and construction of his house. But because Hiralal was not examined who was the main witness to say about the use of money, adverse inference was drawn by the Trial Court. But because Hiralal was not examined who was the main witness to say about the use of money, adverse inference was drawn by the Trial Court. ( 9 ) BABURAM P. W. 1 has already admitted in his statement that the plaintiff Prakash chandra is residing jointly with his father-defendant no. 3 Hiralal and his brother-defendant No. 4 madanlal in the newly constructed house together. It has also come in the evidence that newly constructed house is situated at a place which is equally important and also having good market value. There is no evidence that the newly constructed house is in any way inferior or lesser in value than the suit house. The Trial Court came to the finding that the appellant-plaintiff Prakash Chandra is not a loser by the sale of the house in suit because the family has already acquired an equally valued house. Therefore, after appreciating the evidence of the parties, the Trial Court has rightly held that the respondent No. 3 Hiralal sold the house in suit for legal necessity of the family and for the benefit of the family estate. Therefore, it was found that the sale is not illegal and it was further found that the sale is binding on the appellant-plaintiff Prakash chandra. It was further pointed out that the sale could not have been voidable at the instance of minor Prakash Chandra and that too he may have got it declared not binding on him to the extent of his share in the house and in the present suit he is not entitled to a decree for possession of the whole house, and the provisions of Section 44 of the Transfer of property Act are not applicable and the appellant is not entitled to get any benefit of the same. ( 10 ) SO far as the second sale deed executed by respondent No. 1 Chandmal in favour of respondent No. 2 is concerned, the learned Trial Court rightly opined that the appellant has no locus standi in the matter to challenge the second sale deed whcih can only be challenged either by the minor Vimal Kumar or by the person claiming under him. ( 11 ) DURING the course of arguments, learned Counsel for the appellants did not raise any question about applicability of the provisions of Section 44 of the Transfer of Property Act in this case. ( 11 ) DURING the course of arguments, learned Counsel for the appellants did not raise any question about applicability of the provisions of Section 44 of the Transfer of Property Act in this case. He has also not argued on this point that whether the provisions of section 44 of the aforesaid Act are applicable in this case and no comments were offered on the finding recorded by the Trial Court. ( 12 ) NOW the only question for consideration is about the sale-deed dated 24. 9,1977 in favour of respondent No. 1 Nandkishore by the father and guardian Chandmal of respondent No. 2 Vimal Kumar. In this connection, it has been held by the Court below that as per the provisions of sub-section (3) of Section 8 of the Hindu Minority and Guardianship Act, any disposal of immovable property by the natural guradian in contravention of the said provisions is voidable at the instance of the minor or any other person claiming under him. The Court below recorded its opinion that it is only the minor who can challenge the transfer in the present case. The appellant-plaintiff prakash Chandra cannot challenge the transfer made by chandmal in' favour of respondent No. 1 Nandkishore. It was further submitted on behalf of the respondent that permission is only needed when it is exclusive property of the minor. In this case, the Trial Court found that Chandmal father and guardian of respondent Vimal Kumar has not sold the suit house without right to the respondent No. 1 nandkishore. On this point also, learned Counsel for the appellant could not point out any legal defect in the matter. ( 13 ) THEREFORE, in view of the aforesaid reasonings, I do not find any merit in this appeal. Consequently the appeal fails and is hereby dismissed with costs to the respondents. Counsel's fee shall be as per the Schedule, if certified. ( 14 ) RECORD of the Court below be returned. Appeal dismissed. .