LAWS(ORI)-1949-1-8

GOBINDA KAR Vs. MOHAN MAHARANA

Decided On January 27, 1949
GOBINDA KAR Appellant
V/S
MOHAN MAHARANA Respondents

JUDGEMENT

(1.) It is plaintiffs second appeal in a suit for declaration of title and recovery of possession of the disputed 4 acres of lands said to have been purchased by him from defendant 12 on 10th July 1948. Besides, he claims mesne profits of Rs. 216-8-0 for having been unlawfully kept out of possession by defendants 1 to 11. Defendant 12, the plaintiffs vendor, on his part had acquired the properties by a sale-deed dated 13th May 1938 executed by Gourang (father of defendant 3), Mohan, defendant 1, Baji (father of defendants 4 and 5) and Arjuna (defendant 2), who at the time along with certain other members, who are defendants in the case, constituted a Hindu Mitaksbara joint family. Defendants 1 to 11 contested the suit on the ground that the transaction represented by the sale-deed in favour of defendant 12 was a fictitious one, it having been intended by the parties to execute a banami document. Besides, defendants 3 to 11 raised further plea that in case the plea of benami fails defendant 12 shall not be taken to have acquired any title which he could validly convey to the plaintiffs as there was no legal necessity for the sale.

(2.) On these pleas, the parties went into evidence and the learned trial Judge gave the plaintiffs a decree, holding that the plea of benami was false and that the sale in favour of defendant 12 was justified by existing legal necessity.

(3.) The learned lower appellate Court, however, reversed the decree of the trial Judge holding that there was no legal necessity which could justify a sale of the joint family properties by some of the coparceners even though they were for the time being managers of the family.