BEHARI LAL Vs. THAKUR RADHA BALLABH JI

JUDGEMENT

(1.) This is an appeal of Lala Behari Lal the contesting defendant in the suit for recovery of property and mesne profit. The plaintiff is the idol, Sri Thakur Radha Ballabh Ji and sues through Yasodanandan as next friend. The plaint allegation is that house No. 49/54 belonged to the plaintiff. The said house was a partitioned portion of a bigger building of which the other partitioned portion bore No. 49/53. The plaintiff was not the proprietor of house No. 49/53 but he had acquired the mortgagee rights thereof. The partitioned portion No. 49/54 (also referred to as house in this judgment) had been bought by the plaintiff out of the plaintiff's fund by defendant No. 2 Lala Jagannath as Manager and Sarvarakar of the plaintiff. Jagannath Prasad later executed a sale deed dated 13-1-1942 in respect of the partitioned portion No. 49/54, of which the plaintiff was in proprietary possession, in favour of L. Behari Lal the contesting defendant for a consideration of Rs. 10,000/- with the allegation that house No. 49/54 was in a dilapidated condition and needed to be rebuilt and that out of the sale proceeds some other newly constructed property would be purchased by Jagannath Prasad as Sarvarakar of the temple. The aforesaid statement was incorrect and was incorporated in the sale-deed in order to give it validity. The sale-deed was executed for an inadequate consideration. There was no authority in Jagannath Prasad to sell the property. The plaint further alleged that the sale of house No. 49/54 was made by Lala Jagannath Prasad to Lala Behari Lal according to the story of Lala Jagannath Prasad, defendant No. 2 under an agreement brought about for the following reasons:

(2.) Jagannath Prasad was anxious to require the equity of redemption for the idol of the portion bearing No. 49/53 of which it was the mortgagee but the proprietor of portion No. 49/53 was unwilling to dispose of the equity of redemption in its favour. It was, therefore, agreed between Jagannath Prasad and Lala Behari Lal that Jagannath Prasad would transfer the mortgagee rights of No. 49/53 and also transfer the proprietary right of No. 49/54 in order that Lala Behari Lal having acquired both the rights in the compact house consisting of portions Nos. 49/53 and 49/54 would be able to purchase the equity of redemption of portion No. 49/53 with the result that if these sales came through the entire block comprising of Nos. 49/54 and 49/53 would have been acquired. The arrangement was that thereafter there would be a division of the property or apportionment of the profits in case the compact block was subsequently sold. The plaint stated that if the story of defendant No. 2 was held to be correct, even then the sale deed dated 13-1-1942 executed by Jagannath Prasad defendant No. 2 in favour of Behari Lal was null and void and ineffectual as against the proprietary rights of the plaintiff. The plaint further alleged that since Jagannath Prasad was not safeguarding the rights of the plaintiff, the suit was being brought through Jasodanandan who was a worshipper of the idol and came, for Darshan and took interest in the management of the idol.

(3.) Jagannath Prasad, the pro forma defendant No. 2 filed a written statement and by paras 16 and 17 of his written statement set out the story which had been alleged by the plaintiff in the plaint. The contesting defendant Lala Behari Lal also entered defence. He set up the case that portion No. 49/54 did not constitute the property of the idol but was the private property of Jagannath Prasad purchased by the latter out of his own funds. It was further pleaded that house No. 49/54 was in such a dilapidated condition that its required rebuilding but its rebuilding or even its temporary repairs would have required a large amount of money. Due to war conditions, the house as it stood could fetch a reasonably good price which could be invested in purchasing substitute profitable property. Jagannath Prasad (defendant No. 2) acting as a prudent man sold the house for a good price to Lala Behari Lal. Even if the house was a waqf property, the transaction of sale entered into by Jagannath Prasad was for the benefit of the idol and within the former's competence. Yasodanandan's right to represent the idol as next friend was also challenged. Other pleas were also raised.