SHRI BHAGWAN Vs. PRAKASH CHAND

JUDGEMENT

(1.) THIS appeal is directed against the decree dated April 15, 1978 (judgment dated April 10, 1978) passed by the District Judge, Churu, by which the learned District Judge decreed the Civil Suit No. 23 of 1977 (Prakash Chand and Anr. v. Sri Ram Kishan and Ors.).

(2.) PLAINTIFF Prakash Chand filed civil suit in the Court of Additional District Judge, Churu, for declaration that the sale - deed dated August 27, 1971, executed by Radha Kishan in favour of Ram Krishna be declared as ineffective and void against the plaintiff and the same may, also, be cancelled and the defendants Nos. 1 to 3 may be directed to return the original sale -deed dated April 15,1920, and November 24,1978. It was further prayed that a temporary injunction may be issued against the defendants Nos. 2 and 3 restraining them not to alienate the property in question to any other person and they may further be restrained from making any addition, alteration or construction over the property. It was, also, prayed that the defendants Nos. 2 and 3 may be restrained from recovering any rent from the tenants and may not do any work which may prejudiciously affect the rights of the plaintiff. The case set -up in the plaint was that the plaintiff Prakash Chand and the defendant No. 4 Radha Kishan are the members of Hindu Undivided Family and they own some ancestral properties since the time of his grandfather Ram Chandra, which have not been divided so far. After the death of Ram Chandra on August 18, 1955, the plaintiff and the defendant No. 4 Radha Kishan are the only heirs of deceased Ram Chandra. The defendant No. 4 Radha Kishan, who is father of the plaintiff, sold one -shop, situated in the Western market of Sardarsahar, to Ram Krishna by a registered sale -deed dated August 27,1971, without any legal necessity of the Hindu Undivided Family or for the benefit of the estate. He even sold this property for inadequate consideration without the consent and knowledge of the plaintiff. The plaintiff came to know regarding this sale only on December, 1, 1973, when he returned to Sardarsahar from Bombay and immediately after knowing this fact, he gave a notice on December 10,1973, to the defendants No. 1 and 4 for the cancellation of the sale -deed. This notice was received by them on December 14,1973, and December 18, 1973, respectively. Defendant No. 1 Ram Krishna, inspite of the receipt of the notice, by two different sale -deeds of the same date. i.e., December 21, 1973, sold the shop in question to Sri Bhagwan and Nagar Mal (defendants No. 2 and 3) and got the sale -deeds registered in their favour. As the sale -deed dated August 27, 1971, is ineffective and void against the plaintiff and, therefore, both these subsequent sale -deeds dated December 21, 1973, are automatically ineffective and void. The plaintiff, also, pleaded in the plaint that the sale amount of Rs. 20,000/ - for the shop in question was, also, inadequate. The actual market value of the property on the relevant date was not less than Rs. 40,000/ -. It was further pleaded that as the plaintiff and the defendant No. 4 are governed by MITAKSHARA School of Hindu Law and, therefore, in the presence of the major son, the father had no right to sell the ancestral property even for the legal necessity, If the property has not yet been divided. The suit was contested by the defendants. In the written statement, the defendant took the plea that Radha Kishan alone had the right to sell the property in question as he was adopted by Shri Ram Chandra and the property in question was the self -acquired property of Ram Chandra and, therefore, he alone had the interest and right in the property and the plaintiff had no interest or right in the property in question. It was, also, pleaded that the property in question was sold by Radha Kishan for adequate consideration and as he was the 'KARTA' of the H.U.F. and the property was sold for the legal necessity of the family and, therefore, the sale made in favour of the defendant No. 1 Ram Krishna by Radha Kishan was a valid sale. The defendant, therefore, prayed that the suit, filed by the plaintiff, may be dismissed with cost. On July 1,1977, the Court of the District Judge, Churu, was established at Churu and, therefore, the suit was transferred to the Court of the District Judge, Churu from the Court of the Additional District Judge, Churu.

(3.) HEARD learned Counsel for the appellants as well as the learned Counsel for the respondents.