RAJENDER KUMAR Vs. DEEPAK MAKWANA

JUDGEMENT

(1.) This is a very significant appeal wherein the allegation is that a cloud has been cast over the immovable property of a minor. Sh. Khicchu was the owner of properties No. 20, 28/1, 29 to 33 comprised in Khasra No. 642 situated in village Chandrawali, abadi of Teliwara, Shahdara, Delhi. Sh. Khicchu executed a Will and bequeathed the above said properties in favour of Deepak Makwana, aged about 11 years respondent No.1, his maternal grand son. After his death, respondent No.1 has become the absolute owner of the above said properties.

(2.) Babu Prakash, defendant No.1/respondent No.2 is real father as respondent No.1. He is addicted to liquor and gambling. In the instant suit which was filed through her mother, the minor plaintiff alleged that his father had acted illegally against his welfare and unauthorisedly parted with and delivered the possession of shop No. 32 and 33 to Rajender Kumar and Rajpal, appellants/defendants No. 2 and 3 by receiving a sum of Rs.65,000/- from the appellants. Both the appellants are in physical possession of the shop since 24.11.1987. All the three defendants i.e. appellants and respondent No.2 while working in cahoots threatened to remove back wall of shop No.33. Legal notice was sent to them but it did not ring the bell. Consequently, the instant suit was filed praying for a decree of permanent injunction restraining his father from alienating, transferring and parting with the property No. 29 to 33. It was further prayed that possession of shop No. 32 and 33 be delivered in favour of respondent No.1 and appellants be asked to pay mesne profits in respect of shop No.32 and 33.

(3.) All the three above said defendants defended the present suit. They filed common written statement and enumerated the following defences. Respondent No.1 had not sought permission under Order 33 CPC to sue as an indigent person. Babu Prakash, father of respondent No.1 was his natural guardian. Bimla Devi, mother of the plaintiff/respondent No.1 had deserted her matrimonial home and children. In order to protect the property of minor, his father had leased out shop No.32 and 33 at the rental of Rs.120/- p.m. with effect from 24.11.1987 and rent uptil 04.01.1998 were deposited in nationalised bank. The father had acted for the benefit and welfare of the child. The walls of the shop had crumbled and the ceiling and floor were broken. The above said tenants/appellants got wall's ceiling repaired at their own cost.