KEDAR PRASAD Vs. GANGA PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for cancellation of a sale deed dated 28-4-1961, executed by one Hira Lal (defendant third set in the suit) in favour of the defendant appellant (arrayed as defendant No. 1 in the suit as defendant first set) to the extent of the 4/5th share in the shop mentioned in the plaint and in respect of which the aforesaid sale deed was executed.

(2.) The trial court dismissed the plaintiffs' suit. The plaintiffs appealed. The lower appellate court set aside the judgment and decree of the trial court and decreed the plaintiffs-respondents' suit for cancellation of the sale deed as well as for recovery of arrears of rent.

(3.) Briefly stated, the plaint case was that one Madho Prasad had five sons, namely, Sheo Prasad, Sheo Sagar, Ram Sagar, Ganga Sagar and Dal Sagar. Defendant's Nos. 10 and 11 are Ganga Sagar and Dal Sagar aforesaid. The shop in dispute was the ancestral property of defendants Nos. 2 to 12. According to the pedigree mentioned above, defendant third set, namely. Hira Lal had only 1/5th share in the shop while the remaining 4/5 share belonged to the defendant second set, namely defendants Nos. 2 to 11 aforesaid. Defendants Nos. 2 to 12 were members of a Joint Hindu Family, There was no separation amongst them. Madho Prasad was the Karta of the Joint Hindu Family in his lifetime. After his death, Ram Sagar became the Karta. Thereafter, Ganga Sagar became the Karta. Hira Lal was junior member of the family and had no right to sell the entire shop to the defendant No. 1 (the appellant.). The sale-deed executed by defendant No. 12 in favour of defendant-appellant was thus void and illegal to the extent beyond 1/5th share of Hira Lal. The defendants Nos. 2 to 11 transferred their entire 4/5th share in the shop in dispute to the plaintiff as a result of which the plaintiff became an owner of 4/5th share in the disputed shop. The sale deed executed by Hira Lal in favour of the appellant was not binding on the plaintiffs and was liable to be cancelled to the extent of their 4/5th share.