DAL CHAND Vs. BABU RAM

JUDGEMENT

(1.) This is a defendant's appeal arising out of Suit No. 2 of 1959 which was a sequel to Suit No. 220 of 1958 against which a second appeal is still pending in this Court. The earlier suit was brought by the present appellant Dal Chand against Hukum Singh (tenant and impleaded as defendant No. 5 in the present suit) in respect of arrears of rent which were alleged to have been paid to the present plaintiff viz.. Babu Ram. He had actually applied to be impleaded as a Manager of the joint family in the earlier suit but Dal Chand plaintiff of the earlier suit raised an objection and the application for impleadment was dismissed. It was in these circumstances that Babu Ram filed Suit No. 2 of 1959 giving rise to the present appeal.

(2.) The relief claimed in this suit was a declaration that the Kothi in question was a joint family property of the plaintiffs and defendants Nos. 1 to 4. Hukum Singh and Gur Dayal, being tenants of the Kothi, were impleaded as defendants Nos. 5 and 6 respectively. The plaint allegations were that the plaintiffs viz. Sobha Ram (plaintiff No. 2) and Prakash Chand (plaintiff No. 3) and defendants Nos. 1 to 4, namely, Dal Chand, Kashi Ram, Madan Lal and Bhaewan Dass were sons of plaintiff No. 1, namely, Babu Ram. that the plaintiffs and the aforesaid defendants Nos. 1 to 4 constituted a joint Hindu family which had been doing cloth business till 1954, they were importers and wholesale dealers of cloth in the district of Badaun and they had been paying Income-tax and Sales Tax. It was alleged by the plaintiffs that plaintiff No. 1 Babu Ram purchased a Kothi out of the joint family funds in his capacity as the Manager of the said joint family, though the sale-deed was executed in favour of defendant No. 1 Dal Chand. The plaintiffs Nos. 2 and 3 Sobha Ram and Prakash Chand and the defendants Nos. 2 to 4, namely, Kashi Ram, Madan Lal and Bhagwan Dass were minors at the time of the purchase and defendant No. 1 Dal Chand alone was major and used to sit in the shop along with plaintiff No. 1 and assist him in his business. It was further alleged that the said Kothi had been in possession of the entire joint family and plaintiff No. 1 had been letting it out and realising the rent of the said Kothi as the Karta of the joint family. The rent deeds were sometimes executed in the name of defendant No. 1 Dal Chand but plaintiff No. 1 Babu Ram used to realise the rent either himself or through his sons. The income of the said Kothi was deposited in the joint family fund and the Income-tax was assessed on the income of the joint family property and the plaintiffs and defendants Nos. 1 to 4 treated the said Kothi as the joint family property. The defendants Nos. 5 and 6 Hukum Singh and Gur Dayal had taken the said Kothi in two different portions from plaintiff No. 1 as Karta of the joint family. The plaintiff No. 1 Babu Ram got a rent deed executed from defendant No. 5 in the name of defendant No. 1 on 11-5-1949. Similarly another rent deed was executed in favour of defendant No. 1 on 15-1-1956 and one more rent deed was executed by defendant No. 6 in favour of plaintiff No. 1 Babu Ram on 16-1-1956. It was alleged that defendant No. 5 Hukum Singh had been actually paying rent to the joint family fund but since defendant No. 1 Dal Chand filed suit No. 220 of 1958 for arrears of rent against Hukum Singh the plaintiffs were obliged to file the present suit.

(3.) Dal Chand, defendant No. 1 alone filed a written statement denying the possession of the plaintiffs and defendants Nos. 2 to 4 over the Kothi in question and alleged that he was himself in exclusive possession thereof and that the suit was, therefore, barred by Section 42 of the Specific Relief Act. His defence further was that the Kothi was his self-acquired property, he had purchased it with his own funds on 28-5-1937 and got it constructed and had spent his own money in the electric installation in the said building. He claimed to be in exclusive possession of the Kothi since the time of its purchase and pleaded that he resided in the same, that he let out portions of it by himself and had been exclusively realising rent. He denied that any rent deed was got executed by plaintiff No. 1 in his favour. He also averred that rent was never realised by plaintiff No. 1 or defendants Nos. 2 to 4 and that the rent was never deposited in the joint family fund nor was it ever shown in the Income-tax account or anv other account of the joint family fund. It was stated bv him that there was a shop of the joint family in the Kothi in question prior to its purchase which was run in the name of the firm Harsahai Mal Ishwari Prasad and he had permitted plaintiff No. 1 Babu Ram to continue that shop in the said Kothi. Thus the user of the portion of the shop was permissive and later on that shop was closed. It was further alleged bv him that he used to keep his personal account in the firm Harsahai Mal Ishwari Prasad, that he also kept his personal money in deposit there and used to take out money on his personal responsibility and entry regarding the same was made in the Bahi Khata of the firm. He added that plaintiff No. 1 Babu Ram used to keep the Bahi Khatas of the firm and maintain them, that his account was separately maintained and the plaintiffs Nos. 2 and 3 had admitted the disputed Kothi to belong to him since after they became majors and the suit was thus barred by estoppel and acquiescence. He also stated that plaintiff No. 1 Babu Ram did not divide the joint family property and paid him his pay as his pocket expenses which was Rs. 300/- per annum during 1937 to 1941 and later on during 1941-1942 it was Rs. 400/- and it was Rs. 500/-from 1942 to 1953 and the entry about the pay was made in the account books of the firm. He said that he used to do mortgage business out of that money.