KHAZANCHI MAL Vs. ROOP CHAND ETC

JUDGEMENT

(1.) THIS judgment will dispose of R. S. A. No. 2044 of (sic) and S. A. O. No. 77 of 1978 since common question of law arises for determination therein.

(2.) THE facts :i have referred to the parties in the body of this judgment as they were described in the plaint. Khazanchi Mal, appellant/plaintiff (in R. S A. No. 2044 of 1978) filed a suit for declaration that the property mentioned in paragraph No. 2 of the plaint was joint Hindu family co-parcenary property and that he had 1/2 share in the properties mentioned in sub paras (d) to (o) of paragraph 2 of the plaint. He sought separate possession of his share in the property by partition. It was alleged that the plaintiff and defendants No. 1 to 15 were members of joint Hindu family governed by Mitakshara Law and that the joint Hindu family owned and possessed the properties the details of which were given in para 2 (A to O) of the plaint. Defendant No. 1 was the Karta of the joint Hindu family and the plaintiff washes real son. He was adopted as a son by Chiranji Lal on October 24,1928 and, in the alternative, it was pleaded that Smt Dhipa widow of Chiranji Lal had bequeathed her entire half share in the propeities in dispute in favour of the plaintiff by a registered will on June 27, 1955 ; that he had l/2 share in all the properties mentioned in para 2 of the plaint; that the joint Hindu family was money lender and his properties mentioned in para 2 of the plaint were joint Hindu family co- parcenary properties which were acquired and created with the funds and income of the joint Hindu family that about a year ago. defendants No. 1 to 15 had started claiming that the agricultural land mentioned in para No. 2 Sub-Para A clauses I II, III, IV, sub-para B. sub- para C and half share mentioned in sub-para E and plot mentioned in sub para N were their self-acquired and separate properties; that this claim of defendants No. 1 to 15 was incorrect; defendants No. 16 to 51 claimed that defendants No I to 15 had at adverse time alienated parcels from agrcultural land owned by the joint Hindu family situate in village Hyatpur, tehsil and district Gurgaon, mentioned in para 2 of the plairt, in their favour that defendants No. 16 to 51 being in possession of the said properties had been impleaded as defendants in the present suit because they were bound by the rights of the plaintiff in the joint Hindu family properties and was, therefore entitled to get the same separated by partition free from any incumberances; that the said transfers, if established be held to be adjustable in the half share to which defendants No. 1 to 15 were entitled to in partition.

(3.) DEFENDANTS No. 1 to 15 in their written statement pleaded that the plaintiff and defendants No. 1 to 15 were not members of the joint Hindu family; that the parties were not joint in food, residence and business; that the transfers in favour of defendants No. 16 to 5l'were mostly made beyond twelve years and that the plaintiff never raised a finger against those transfers and he had no share in the suit property and consequently was not entitled to partition nor adjustment of sales in partition.