DIGVIJAY SINGH Vs. SANT RAM

JUDGEMENT

(1.) The present appeal filed under Section 96 of CPC by the appellants-plaintiffs arises out of the judgment and decree dated 23.2.84 passed by the Addl. District Judge, Court No.3, Jaipur City, Jaipur (hereinafter referred to as 'the trial court')in Civil Suit No. (45/71) 98/74, whereby the trial court has dismissed the suit of the appellants-plaintiffs, seeking partition, possession, declaration and injunction in respect of the suit-properties.

(2.) The facts in nutshell giving rise to the present appeal are that the present respondent No.7 (original defendant No.7) happens to be the father of appellant Nos. 1 to 4 and the husband of the appellant No.5. The appellants-plaintiffs Nos. 1 to 4, being minors, at the relevant time, through their mother, the appellant No.5 (defendant No.5), and the appellant No.5 in her personal capacity had filed the suit being No. (45/71) 98/74, seeking partition of the properties described in para 1 and 3 of the plaint and seeking recovery of actual possession of their 5/6th share in the said properties. The appellants-plaintiffs had also sought declaration to the effect that the sales of the ancestral suit properties made by the defendant No.7 as mentioned in para Nos. 4-ka to 4-da were without any legal necessity of the family and, therefore were null and void and that the said sales be declared as cancelled. They had also sought permanent injunction against the defendant Nos. 7 for restraining him from transferring or creating any charge over the said ancestral suit properties.

(3.) It was alleged by the appellants-plaintiffs in the plaint interalia that there was a Haveli known as 'Padli House' as described in para No. 1, which was allotted to their ancestor late Shri Thakur Mansinghji Padli, by way of State Grant in the samvat year 1872, by the then Maharaja Saheb of the State of Jaipur. The said Haveli was repaired and renovated from time to time by the ancestors of the plaintiffs Nos. 1 to 4 from the income of the Thikana Padli. The said entire Haveli and the Haveli at Gram Padli were the joint family properties of the plaintiff Nos. 1 to 4 and defendant No.7 and they all were residing in the said Haveli at Jaipur. It was further alleged that the defendant No.7 without any legal necessity of the family or without any lawful purpose was bent upon transferring different parts of the said Haveli to different persons by creating charge over the said property; that the defendant No.7 had the bad habits of drinking and gambling, for which he had borrowed some small amount from the defendant Nos. 1 to 6 and had executed sale deeds and mortgage deeds falsely stating therein about the receipt of entire amount. According to the appellants-plaintiffs, the defendant No. 7 had executed different sale-deeds in favour of the defendant Nos. 1 to 6 in respect of the garages and the shops situated within the precincts of the said Haveli, as mentioned in para 4-ka to 4-da. Since the said properties were the ancestral properties, each of the plaintiffs and the defendant No.7 had undivided 1/6th share in the same, and hence the said alienations made in favour of the other defendants by the defendant No.7 were not binding to the plaintiffs, and the same were required declared as cancelled. The suit therefore for partition, declaration and injunction as prayed for was filed.