PRAKASH CHANDRA Vs. NAND KISHORE

JUDGEMENT

(1.) This first appeal has been preferred by the appellant-plaintiff against the judgment and decree dated 9.2.1987 passed in Civil Suit No. 1-A/87 by the First Add1. District Judge, Mandsaur dismissing the suit which was filed in forma-pauperis for declaration that the minor plaintiff Prakash Chandra is the owner of the house in suit and the sale deed dated 21.2.1977 and 24.9.1977 are illegal and void and not binding on the plaintiff.

(2.) The material facts of the case are that the defendant No. 3 Hazarilal is the father of defendant No. 4 Manoharlal. The appellant- plaintiff Prakash Chandra is the brother of Manoharlal. Baburam, the real brother of the father of the plaintiff had filed the suit as a next friend on behalf of Prakash Chandra who was minor on the date when the suit was filed, i.e. on 5.10.1978. The plaintiff and defendant No. 4 Manoharlal are the sons of defendant No. 3 Hiralal. All are members of joint Hindu family and governed by Banaras School of Mitakshara Law. It was alleged in the plaint that house bearing Municipal No. 13/3 is ancestral property of the plaintiff and defendant Nos. 3 and 4. The defendant No. 3 without legal necessity or for the benefit of the estate sold the suit house for Rs. 24,000/- on 24.2.1977 to defendant No. 2 and delivered its possession to the vendee. Later on defendant No.2 Chandmal, natural guardian of Vimal Kumar who is minor had also illegally disposed of and delivered the possession of the house to the defendant No. 1 Nandkishore through a sale deed dated 24.9.1977 for a consideration of Rs. 30,000/- without obtaining requisite permission under the provsions of Hindu Minority and Guardianship Act, 1956. The defendant Nos. 1 and 2 did not acquire any title. Therefore, the plaintiff had filed the suit for declaration, recovery of possession of the house and for compensation for use and occupation thereof by defendant Nos. 1 and 2. It was also contended that the suit house was used by the joint family of plaintiff and defendant Nos. 3 and 4 as a dwelling house. The suit was filed by his next friend Baburam after leave to sue in forma pauperis. By order dated 30.6.1979 leave to sue in forma-pauperis was granted and thereafter, the suit has proceeded ex-parte against repondent-defendant Nos. 3 and 4 Hiralal and Manoharlal. The respondent-defendant Nos. 1 and 2 Nandkishore and Vimal Kumar contested the suit on the ground that Baburam had no power to file the suit as next friend of plaintiff Prakash Chandra. They denied that the house in suit is ancestral and that the plaintiff Prakash Chandra and the defendant Nos. 2 and 3 are governed by the Banaras School of Mitakshara Law. It was further denied that they are members of joint Hindu family. It was further contended that the defendant No. 3 Hiralal sold the house for legal necessity and benefit of the estate. The house sold was not well-situated and was of lesser value. There was no way to go upstairs from the road and there was difficulty about latrine as well. The vendor Hiralal was facing every day quarrel with his brother and his progamy. The house in suit was sold with a view to construct better house and thereafter, he did construct a better house at Bus Stand Mandsaur in which the plaintiff Prakash Chandra and defendant Nos. 3 and 4 are residing and living therein. It was further contended that the defendant No. 3 Hiralal required money for marriage of his son-defendant No. 4 Manoharlal and also for his daughter and also for opening a shop for unemployed son Manoharlal and also for the son of the plaintiff. It was further contended on behalf of defendant No. 2 that becouse a dispute arose between defendant No. 2 Vimal Kumar and defendant Nos. 3 and 4 Hiralal and Manoharlal about some passage and for that C.O.S. No. 84/77 was filed before the Civil Judge Clas II, Mandsaur. The present suit has been instituted with a view to pressurise the defendant Nos. 1 and 2 to withdraw their suit.

(3.) The defendants have further contended that the defendant No. 3 Hiralal got the suit house in partition. It was further contended that there was no necessity for Chandmal defendant No. 2 to take any permission for selling the house in suit and the plaintiff Prakash Chandra had no right to challenge this sale on the ground of permission. The house is not only residential, but includes a shop also. Chandmal had purchased the house in good faith after paying the consideration. The plaintiff is not entitled to any mesne profits. The real owner is Chandmal. The suit is based on non-joinder of parties as Chandmal has not been added as a party to the suit. The defendants claimed dismissal of the suit with compensatory costs.