RUP RAUT Vs. BASUDEO RAUT

JUDGEMENT

(1.) This appeal is by defendants 1 and 2 and arises out of a suit brought by a minor plaintiff, through his sister's husband as guardian, for a declaration that the sale deed executed by the plaintiff's mother, defendant No. 7, on the 25th of February, 1950, in favour of defendant No. 2 for Rs. 50/- in respect of one katha of land and a mortgage deed executed by her the same day in favour of defendant No. 1 in respect of 2 bighas 10 kathas 14 dhurs of land for Rs. 1951/-, were for no legal necessity, and were invalid and not binding against the plaintiff. In the same suit, the plaintiff also challenged another mortgage, executed on the 1st of March, 1950, by defendant No. 7 in favour of Defendants 4 and 5 who were respectively son and son-in-law of defendant No. 3, and a handnote, executed by her on the 29th of August, 1950, in favour of defendant No. 6. On the basis of the handnote a money decree was obtained, in execution of which, some properties belonging to the plaintiff were purchased by defendant No. 6. The plaintiff claimed recovery of possession of all the lands transferred to different defendants by sale, mortgage or execution of decree. He also prayed for mesne profits of those lands.

(2.) No written statement was filed on behalf of defendants 3 and 5. The pleader guardian of minor defendant No. 4 filed a written statement and contested the suit. Defendant No. 6 raised a contest by a written statement and evidence during trial. The main contest, however, was on behall of defendants 1 and 2, who were father and son. They challenge in their written statement all the averments in the plaint. Plaintiffs case was that his father had predeceased his grandfather who died in 1946. One year thereafter, plaintiff's mother remarried one Babulal in Sagai form and left the minor plaintiff in charge and guardianship of his sister's husband. By remarriage, she forfeited her interest in the family property and also the guardianship of the minor. She was thus incompetent to dispose of the family properties which had come to the plaintiff, being the sole surviving coparcener, on the death of his grandfather. The family was also not in need of any money for which either sale or mortgage or loan was necessary. The contesting defendants 1 and 2 repudiated the remarriage of defendant No. 7 and wanted to establish the necessities, for which, the loan on mortgage was secured by the plaintiff's mother and an item of property was sold by her. The plea of defendant No. 6 or defendant No. 5 need not be stated here as they have remained contented with the decree passed against them by the trial Court.

(3.) The learned Additional Subordinate Judge of Chapra, who tried the suit, found that the plaintiff's mother was not remarried, as alleged in the plaint but, as the transactions entered into by her were not for legal necessity, he decreed the plaintiff's suit, on contest against defendants 1, 2 and 6 and ex parte against the remaining defendants 3, 4 and 5. Against that, defendants 1 and 2 have come up in appeal.