RAM Vs. RAM KISHAN

JUDGEMENT

(1.) The plaintiff-appellant is aggrieved by the judgment and decree dated 31.07.1978 passed in Civil Appeal No. 253 of 1976 by the IInd Additional District Judge, Farrukhabad dismissing the appeal of the plaintiff and confirming the judgment and decree dated 17.09.1976 passed in O.S. No. 73 of 1974 'Sri Ram and Anr. v. Ram Kishan and Anr.', by the Ist Additional Munsif, Kannauj.

(2.) Sri Dhruva Narain, learned Counsel has submitted that the substantial question of law involved in this appeal is: Whether the second paragraph of Section 44 of the Transfer of Property Act is applicable to the facts of the case?

(3.) The plaintiff had filed a suit for cancellation of sale deed and injunction against the transferee from interfering or seeking possession over the house in question. The trial Court as also the First Appellate Court found that transfer of one half share was made by the descendants of Bheema who were defendants No. 2 to 7 and other half share belonged to the plaintiffs No. 1 to 5 who were descendants of Narain. The Courts below found that when the descendants of Bheema had half share in the property in question they could alienate the same and the plaintiff had not been able to establish his case for cancellation of sale deed. Insofar as Section 44 of the Transfer of Property Act is concerned, the recitation of the facts by both the Courts below undisputedly was that house in question was ancestral and was owned half share each by the plaintiffs and the defendants No. 2 to 7 but the fact that Smt. Inda was daughter of Bheema ancestor of the defendants No. 2 to 7 would make the defendants No. 2 to 7 belonging to another family although they inherited half portion of Bheema in the house in question.