MANGAL SINGH Vs. HARKESH

JUDGEMENT

(1.) THE pLalntiffs - Harkesh Singh and Mukhtar Singh are the two sons of Risal Singh. Risal Singh had a sister, and Mangal Singh, the present defendant -appellant, is the son of that sister. On the 10th of September 1930, Risal Singh executed a deed of gift in respect of the properties in dispute in favour of his sisters son, defendant -appellant Mangal Singh. The pLalntiffs sued to avoid this deed of gift on the ground that they formed a joint Hindu family with their father, Risal Singh, and alleged that as the gifted property was their joint family property, Risal Singh had no right to give it away to the defendant.

(2.) THE trial Court held that the properties were joint family properties and that the transfer in favour of the defendants was really a gift and not a sale. It therefore decreed the suit in respect of seven out of eight items of properties. It dismissed the suit in respect of the remaining one item on the ground that that Item was no longer held by the defendant, it paving been sold to satisfy a prior encumbrance.

(3.) THE pLalntiffs then came up in second appeal which was heard by Malik, J., (as he then was). He disagreed with the Civil Judge and was of the opinion that on the facts admitted or proved it must be held that the property was the joint family property and Risal Singh had no right to make a gift for the same in favour of Mangal Singh. He, therefore, allowed the appeal and restored the decree of the trial Court. He however granted permission for a Letters Patent Appeal and the present appeal is the result.