A.N. Grover, J. - (1.) THIS is an appeal under clause 10 of the Letters Patent against the judgment of a learned Single Judge who affirmed the decisions of the Courts below decreeing the suit In order to determine the points that have been raised, the facts may be shortly stated.
(2.) ON 5th September 1948 Lachhmi Narain executed a registered sale deed, Exhibit P -3, in respect of his share in the property in dispute which consists of a haveli in Rewari town in favour of Amar Chand for a consideration of Rs. 300/ -. On the same day he executed a registered rent deed, Exhibit D -2, taking on rent the same property from Amar Chand Yet a third document was executed on that very day between Lachhmi Narain and Amar Chand, according to which the latter agreed to reconvey the property to the former, if he paid back the consideration of sale as well as the amount of rent due within two years from the date of the agreement. Before the expiry of that period however, on 6th April 1950 Sita Ram Defendant obtained from Lachhmi Narain whatever rights the latter had in the property. Out of the sale consideration a sum of Rs. 300/ - was left with the vendee for payment of what was stated to be the preexisting mortgage in favour of Amar Chand Sita Ram did not exercise his right to repurchase the property from Amar Chand within a period of two years from 5th September 1948. On 30th September 1950 Amar chand executed a registered sale deed, Exhibit P -4, conveying the title in that property to 'Sita' Ram for Rs. 400/ - in this this sale deed, Amar Chand described himself as a complete owner of the property. In October 1951 Basheshar Dayal and Rajinder Kumar, the two sons of Amar chand, and his wife Rukmani Devi instituted the usual suit for possession of the property on the ground that they formed a joint Hindu family with Amar Chand who was impleaded as Defendant No. 3 in the suit and that he had purchased the property with the funds of the joint Hindu family and that he was not entitled to alienate the same without the consent of the other members of the family. It was pleaded that Amar Chand was given to drinking and immoral habits and that the sale had been effected without any necessity or benefit to the family Sita Ram contested the suit. On the issues which had been framed, the Subordinate Judge as also the Additional District Judge decided that the property in suit was joint Hindu family property and Amar Chand had no right to alienate the same, it was found that the alienation was not for illegal or immoral purposes, nor was it an act of good management. As the sale was without any necessity, the suit was decreed.
(3.) BEFORE the learned Single Judge,' two questions were principally raised, the first being whether the alienation made on 5th September, 1948 amounted to a (sic) gage by conditional sale or was an outright sale and the second being whether the property in suit belonged to the Joint Hindu family consisting of Amar Chand and his sons. The learned Single Judge held that the agreement for reconveyance made on 5th September 1948 required registration and, therefore, could not be looked at for the purpose of deciding the nature of the transaction evidenced by the sale deed, Exhibit P -3. For that reason he felt that there was hardly anything in the plea raised by Sita Ram that the transaction in reality was one on mortgage by way of conditional sale the finding with regard to the property having been acquired from the assets of the joint Hindu family being one of fact was not disturbed. The present appeal against the judgment of the learned Single Judge was at first heard by a Bench consisting of my learned brother Dulat J. and Capoor J. and by means of a judgment dated 1st May 1961 the appeal was allowed and the suit of the Plaintiff -Respondents was ordered to be dismissed, Bashesnar Dayal, one of the Plaintiff -Respondents, later on filed an application for setting aside the decree of the dismissal of the suit, the ground being that he was not represented at the hearing of the appeal and that the matter had been decided ex parte against him. On 28th March 1963 the Bench made an order that the aforesaid party should be allowed to have his full say, with the result that the ex parte decree was set aside and it was directed that the appeal be reheard in the presence of the parties subject to payment of Rs. 100/ - as costs to sita Ram. That having been done, the appeal has been fixed for hearing before us.;