GAYA PRASAD PANDEY Vs. JAGESHWAR PRASAD PANDEY

JUDGEMENT

(1.) - This letters patent appeal has been preferred against the judgment of a Id. Single Judge of this Court dated Feb. 20, 1985 in First Appeal No. 146 of 1979. The suit giving rise to this appeal had initially been instituted by the respondent against the appellant for his eviction from the suit premises on the allegation that the appellant was the tenant thereof and was liable to be evicted on various ground mentioned in the plaint. Subsequently, however, the plaint was amended and the respondent claimed a decree for possession on the baais of his title. Relief for mesne profits and a further relief that an enquiry under Order 20, Rule 12, CPC, for determination of future mesne profits may be directed were also claimed. The case of the plaintiff-respondent was that one Laxmi Narayan , Pandey had two sons Beni Madhav and Jageshwar Prasad Pandey. A dispute arose between Laxmi Narayan Pandey and his two sons regarding joint family properties including the suit premises which was referred to arbitrators who gave an award which was duly registered and made rule of the Court and that in pursuance thereof the suit premises fell to the share of Beni Madhav. His case further was that Beni Madhav sold the suit premises to him vide sale-deed dated Nov. 26, 1974 for a consideration of Rs. 15,000.00 and in pursuance of the said sale-deed he became the owner of the suit premises. The defendant-appellant is one of the two sons of Beni Madhav. The suit was contested by the appellant on the ground that the suit premises and other properties which were partitioned between Laxmi Narayan on the one hand and his sons Beni Madhav and Jageshwar Prasad on the other, as indicated above, were joint family properties in which he had an interest by birth. His case further was that since his father Beni Madhav was the head of his branch of the family, the suit premises allotted to the share of Beni Madhav continued to be Joint family property of Beni Madhav and his two sons and that Beni Madhav alone could not have transferred the suit premises to the plaintiff-respondent. This plea raised by the appellant found favour with the trial Court and on the finding that Beni Madhav was not the exclusive owner of the suit premises and consequently could not convey title of exclusive ownership on the plaintiff-respondent the suit was dismissed. The trial Court further held that since the plaintiff-respondent had been found to be only a joint owner being the vendee of the share of Beni Madhav alone in the suit premises, he could seek partition of his share therein. Aggrieved by the decree of the trial Court the plaintiff-respondent preferred First Appeal No. 146 of 1979 referred to above. The said first appeal was allowed, the judgment and decree of the trial Court in so for as they related to the possession of the suit promises were set aside and the respondent s suit for possession was decreed. As already noticed, the present letter patent appeal has been preferred against the said judgment. The plaintiff- respondent has also filed a cross-objection asserting that consequent upon the decree for possession being passed, a decree for mesne profits also ought to have been passes by the Id. Single Judge.

(2.) It has been urged by Id. counsel for the appellant that the suit initially having been filed on the basis of relationship of landlord and tenant and subsequently by amendment having been converted into a suit for possession on the ground that the plaintiff-respondent was the exclusive owner of the suit premises inasmuch as Beni Madhav, his vendor, was also the exclusive owner thereof, the same having fallen in his share. in the partition between laxmi Narayan Pandey and his sons, the Id. Single Judge even after affirming the finding of the trial Court that the suit premises constituted joint family property of Beni Madhav and his sons including the appellant committed an error in yet decreeing the suit even without recording finding that the sale-deed executed by Beni Madhav a in favour of the plaintiff-respondent was for legal necessity. According to Id. counsel for the appellant, keeping in view the nature of the plea raised in this behalf by the plaintiff-respondent, the appellant was not re-allowed to raise a plea in his written statement that the sale-deed executed by Beni Madhav in favour of the plaintiff-respondent was not for legal necessity. Emphasis was placed on the circumstance that since the sale-deed according to the plaintiff-respondent had been executed in his favour by Beni Madhav as exclusive owner of the suit premises and not as manager of the joint family which was really the owner of the suit premises, the appellant was really never called upon to raise a plea that the sale-deed was bad for want of legal necessity. For the respondent, on the other hand, it has been urged by his Id. counsel that on the admitted facts that suit premises constituted joint family property along with other properties of Laxmi Narayan and his two sons including Beni Madhav, that the suit premises fell to the share of Beni Madhav, on partition between Laxmi Narayan Pandey and his sons and that Beni Madhav had two sons on the date of such partition, it was apparent that the suit premises which fell to the share of Beni Madhav in the said partition could not be his exclusive properties but would continue to be joint family properties of Beni Madhav and his sons. According to him, the mere fact that the legal conclusion in regard to the nature of the interest held by Beni Madhav in the suit premises consequent upon the partition between Laxmi Narayan Pandey and his sons was erroneously stated by the respondent in the plaint, namely, that the suit premises constituted exclusive property of Beni Madhav was of no consequence and since the whole foundation of the appellant s defence was that the suit premises in the hands of Beni Madhav consequent upon the partition between Laxmi Narayan Pandey and his sons were joint family properties vis-a-vis his sons, it was incumbent. upon him to have taken the plea that the sale-deed was without legal necessity in case he wanted to avoid the sale-deed which otherwise would be a valid sale-deed, the same having been executed by no less a person who was the father of the appellant and 'Karta' of the joint family of Beni Madhav and his sons.

(3.) Having heard Id counsel for the parties, we are of opinion that there is substance in the submission made by Id counsel for the plaintiff-respondent and the Id Single Judge cannot be said to have committed any error in accepting the said submission. The decision of the Supreme Court in the case of P.M. Kavade Vs. A.B. Bokil AIR 1971 Supreme Court 2228 on which reliance has been placed by the Id Since Judge, in our opinion fully supports the view taken by him. That was a case where a sale-deed had been executed by one Mahadev (Ex. 78) in regard to the suit property in favour of the father of the plaintiff. The suit property had been subject to a mortgage. The equity of redemption was owned by Ganpati, maternal-uncle of Madhav whereas the mortgage rights were owned by the father of Madhav. On the death of Ganpati without leaving any issues, the equity of redemption devolved on him on the death of his father. Thus Mahadev became the owner of both the rights in the suit property, namely the rights in the equity of redemption obtained through his maternal-uncle Ganpati and the rights of the mortgagee obtained by inheritance of his father. These rights, however, were subject to a sub-mortgage which had been executed by the father of Mahadev. As seen above, the plaintiff in the above case was the son of the vendee from Mahadev. The suit was for recovery of possession of the suit property. In the alternative, the plaintiff had claimed that If it was held that the sale deed Ex.78 was not binding on the defendants, he should be given his share in the property equitably. The suit was contested by the defendants on various grounds. They denied the title of the plaintiff and contended that Mahadev did not succeed to his maternal-uncle and in consequence did not inherit the rights in the equity of redemption on the suit property. They also asserted that even the mortgagee's rights were not transferred under Ex. 78 as it had been held in an earlier suit, being Civil Suit No. 40 of 1941, that the transaction of sale Ex.78 was invalid and not binding against the defendants who were the sons of Mahadev inasmuch as it had been executed by their father without any legal necessity. The suit was, however, decreed and in appeal before the Supreme Court it was inter alia urged on behalf of the defendants that assuming that Mahadev purported to convey the mortgagee's rights also under Ex.78 the transfer of such rights did not bind the defendant-appellants as the plaintiff had not proved that the transaction was for legal necessity. Repelling this contention it was held by the Supreme Court :