RAM PIARI Vs. RAM NATH

JUDGEMENT

(1.) This is a defendants' second appeal arising out of a suit for possession over a plot of land by demolition of certain constructions made thereon by some of the defendants.

(2.) There is no controversy that one Brijnath constituted a joint Hindu family along with his three sons, Ram Nath, plaintiff-respondent, and Prem Lal who was arrayed as defendant No. 1, and one Lakshmi Nath who was not impleaded in the suit. Brijnath had died and, in the year 1946, the position was that the family consisted of the three sons described above. On the 18th July, 1946 Prem Lal sold a specific portion of a plot of land, consisting of the northern portion thereof, to one Barhma Devi with the recital that this property was Prem Lal's separate property allotted to him as a result of partition between himself and other members of the family. By successive transfers the property ultimately came into the hands of Smt. Ram pyari and Kamla Devi who were arrayed as defendants Nos. 2 and 3 in the suit. The only other defendants impleaded were Ram Bharose Lal and Raja Ram, the respective husbands of the aforesaid ladies. The plaintiff's case was that his brother Lakshmi Nath had been mad since about twelve years and was in the Lunatic Asylum at Bareilly and had no wife or children, whereas Prem Lal was a stupid person incapable of understanding matters since the last seven years, that there had been no partition between the members of the family which was a joint Hindu family of which the plaintiff was the Karta and the eldest member. It was asserted that the transfer of the 18th July 1946 was without any right and the plaintiff was, therefore, not bound thereby, that defendants Nos. 2 and 3 had started raising constructions on the land and did not desist from continuing to do so in spite of objection by the plaintiff, even though defendants Nos. 2 and 3 had obtained no right whatever in the property by virtue of the sale deed of the 18th July, 1946 which had been executed by Prem Lal in respect of property which belonged to the joint Hindu family without any right or justification. The suit was instituted in the year 1951.

(3.) The suit was contested by defendants Nos. 2 to 5 who pleaded that, after the death of Brijnath, his sons had divided their ancestral property between themselves and that in the course of that partition the land in suit had fallen to the share of Prem Lal. Section 41 of the Transfer of Property Act, as also estoppel, were also pleaded.