BHAGWANDAS NANDLAL Vs. CHHAGANLAL BINJOOLAL

JUDGEMENT

(1.) THIS is an appeal against the judgment passed by the Additional district Judge, Neemuch decreeing the plaintiff-respondents' suit for possession.

(2.) THE facts giving rise to this appeal are that one Suganchand and nandlal, the adoptive father of the appellant, were real brothers. The respondents Nos. 2 to 5 are the daughters of Suganchand. Nandlal, the adoptive father of the appellant, and Suganchand were living separately. Nandlal was living in Neemuch and Suganchand, being in Railway service was at Udaipur. The house in suit, situated in Neemuch, is the ancestral house, and as Nandlal, the father of the appellant, was residing in Neemuch, he was in possession of this house during his lifetime, and after his death it has been in possession of the appellant.

(3.) THE respondents filed the present suit on the allegations that in 1907 nandlal was in need of money, and for that reason Nandlal and his brother suganchand both mortgaged the suit house with possession with Lala Fulchand for a loan of Rs. 5000. The amount was obtained for Nandlal and it was used by him. It was alleged that as Nandlal was unable to repay the amount he executed a deed of surrender of his share in the house in favour of Suganchand on 26th September 1911. This document was registered on 24th October 1911 and from that date Suganchand became the absolute owner of the suit house. According to the plaintiffs, the two brothers were already living separately and they had no other ancestral property, and that after this deed of surrender executed by Nandlal, Suganchand became the absolute owner of the house in dispute, on 31st October 1923 Suganchand's name was entered in the municipal records, and the house continued to remain in his name till 28th January 1958 In september 1914 the mortgage amount was paid by Suganchand and the house was redeemed. But out of affection and sympathy for his brother Nandlal, suganchand allowed him to live in the house. It is alleged that taking advantage of the fact that he was in possession of the house and that Suganchand was away at Udaipur, the defendant-appellant made an application to the municipal Committee, Neemuch, on 28th January 1958. In that application he made false representations and got his name mutated in the municipal record. It was alleged that after the death of Suganchand the plaintiff respondents nos. 2 to 5 being the daughters of the deceased inherited the suit house along with Naginibai, the widow of Suganchand. On 25th February 1961 Naginibai made a gift of her interest in the property in favour of the plaintiff-respondent no. 1 Ghhaganlal and thus he also became a co owner of the house in suit. On 23rd July 1961 the plaintiff respondents gave a notice to the defendant and then filed the present suit. The plaintiff-respondents also claimed mesne profits at the rate of Rs. 150/- per month.