MOOLCHAND Vs. MST. SAHEDEI AND ANOTHER

JUDGEMENT

(1.) This is plaintiff's appeal against the dismissal of his suit for declaration that the sale-deed executed by the defendant No I in favour of the defendant No. 2 of house No. 21-A to 21-D in Sadar Bazar, Jabalpur, is not binding on him.

(2.) It is not in dispute that Rameshwar Dayal and Rambharose were real brothers and they.jointly acquired the suit house and another house near Kali Temple at Sadar Bazar, Jabalpur. Rameshwar Dayal was older of the two and he died on 22-12-1945 while Rambharose predeceased him on 5.6-1944. Plaintiff Moolchand is son of Rameshwar Dayal while defendant No. 1 Sahdei is widow of Rambharose though the plaintiff claims that after the death of his wife Pyaribai Rambharose kept the defendant No. 1 as his keep and she is not the married wife. Rambharose executed an Ikrarnama Ex. D 28 on 10-5-1937 expressing his desire to separate and the parties agreed to appoint an arbitrator to effect partition by metes and bounds Thereafter Rambharose started living in the suit house while Rameshwar Dayal started living in the house near Kali Temple. The defendant No. 1 has been collecting rents and paying taxes in respect of the suit house since then. After the death of Rambharose the defendant no. I applied for succession certificate in respect of the amounts standing in the name of Rambharose in bank and succession certificate was granted to her. The plaintiff then moved an application for cancellation of the succession certificate alleging that she is only a keep and then the parties entered into a compromise Ex. P. 1 dated 13.12.1946 whereby the defendant No. 1 has acknowledged that she is keeping the suit house in lieu of her maintenance and she would not alienate the same. By registered sale-deed dated 8-12-1967 Ex. D. 3 the defendant No. I sold the suit house to the defendant No. 2 for a consideration of Rs. 15,000.00. The present suit has been filed by the plaintiff on 11/8/70 challenging the alienation.

(3.) The plaintiff's case is that the suit property was the joint property of Rameshwar Dayal and Rambharose who died in the state of jointness, leaving the plaintiff as their sole surviving coparcener. Though Kari form of marriage was prevalent in their community, but the defendant No. 1 was not married to Rambharose under this form. After the death of his first wife, Rambharose kept the defendant No. 1 as his misress, as such, she has no legal status to succeed his estate but out of human consideration the plaintiff permitted her to live in the suit house and to maintain her from. the rents. This was confirmed by agreement dated 13-12-1946. This was arrived at regarding the dispute which arose on grant of succession certificate to the defendant No. 1. The plaintiff's title to the suit house was admitted them cin. As such, the sale-deed executed by her in favour of the defendant No. 2 is illegal, inoperative and not binding on the plaintiff. The plaintiff also pleaded that the sale in favour of the defendant No. 2 was without consideration but he was not permitted to raise such an objection, he being not a party to the sale.