LEKH RAM Vs. KISHNO

JUDGEMENT

(1.) In order that the points of controversy in this second appeal may be intelligible it is necessary to recapitulate the salient facts though briefly. Man Singh & Mund Rai were two sons of Dhani Ram a Brahman of village Kadon in tehail Kandaghat & Ram Dayal deft, is the son of the former, while Lekh Ram & Girdhari Lal, pltfs are the sons of Kundan Lal, who was adopted by Mund Rai an 26-6-1986. Ram Dyal challenged the validity of the adoption & brought a suit for a declaration that it was void & would not affect his rights in the property that the adoption would necessarily confer upon the adoptee. How exactly the suit terminated is obscure but it is admitted during the course of those proceedings Mund Rai on 28-12-1992 executed a will stating that on his death his property in village Kadon will go to Kundan Lal & that in village Barar to Ram Dyal. On the same date, viz., 28-12-1992 Kundan Lal also executed an unregistered document in favour of Ram Dyal agreeing to be bound by the said will & to continue to abide by it even if it were subsequently cancelled by Mund Rai. On 10-9-1997 Mund Rai rescinded the will made on 28-12-1992 & on 18-10-1999 he made a gift of his property including the land in Barar to Girdhari Lal & Lekh Ram sous of Kundan Lal. It is necessary to mention here that Kundan Lal predeceased Mund Rai & the latter passed away on or about 16-4-200l. On the demise of Mund Rai, the deft. (Ram Dial) took possession of the land in village Barar & the present suit was instituted by Lekh Ram Girdhari Lal on 5-2-2003 to recover possession of that land on the ground that in their presence the deft, had no right to succeed to it specially when the will made in his favour by Mund Rai on 28-12-1992 had been superseded by the deed of cancellation dated 10-9-1997. The Cts. below have dismissed the suit holding that the pltfs. are bound by the agreement executed by their father on 28-12-1992. When this appeal came up before me on 4-12-1950, the counsel for the reap, argued that the pltfs. had no locus standi to recovar the land as they had not proved that they were born after their father had been adopted by Mund Rai. In order to dispose of the question raised effectively, I thought it necessary to frame the following issue:

(2.) The parties are Brahmins & being high caste Hindus, are presumably governed by their personal law. An adoption under Mitakshara has the effect of transplanting the adopted boy from his natural family into the family of the adoptive father & by such adoption the adoptee (sic) the rights & privileges of a natural son in the family of the adaptor. He ceases to be a co-parcener in the family of his birth from the time of his adoption & becomes one with his adoptive father immediately. This is however not so with regard to the sons of the adoptee in existence before the adoption. The transplantation is restricted & confined to the adoptee & his wife because she is half of his body (Ardhangi) & does not extend to his, sons born before he was taken in adoption. Such sons do not acquire the status of co-parceners in the family in which their father is adopted & they do not, like their father, lose their Gotra & right of inheritance in the family of their birth & do not acquire the Gotra & right of inheritance in the family in which their father has been adopted. In this view of the law, Lekh Ram who wa3 born prior to the adoption of his father did not become a co-parcener in his father's adoptive family & can have no right of inheritance in that family. His claim to succeed to the disputed property must, therefore fail.

(3.) Girdhari Lal's right of succession who was born after the adoption of Kundan Lal must be distinguished from that of Lekh Ram. On his birth he became a member of the joint family with Mund Rai & Kundan Lal. It is evident that when Kundan Lal made the agreement on 28 121992, he was not the Karta of the family & was incompetent to deal with the co-parcenary property. According to Mitakshara each member of a joint Hindu family has a proprietary interest in the whole of the co-parcenary property & no co-parcener can claim a specified interest in it. The whole of the joint Hindu family property belongs to the whole body of co-parceners, the extent of interest of no coparcener being defined. No co-parcener can, therefore, in that position lawfully sell, mortgage or otherwise exclusively deal wish even his own undefined interest in the property without the concurrence of the other coparceners. The disputed agreement in this case was made by Kundan Lal when he was neither the Karta of the family nor, being a co-parcener, the owner of any specific share in the family property. In Lachhman Parshad V. Sarnam Singh, 1917 AIR(PC) 41 it was held by their Lordships of the P.C. that where the property of a Hindu joint family is mortgaged by one of the members, not being the head of the family for an antecedent debt, or proven necessity of the joint family, the general law is that the mtge is not valid at all, even to the extent of the mtgor's interest. In Chiranju Lal V. Kartar Singh, 1925 AIR(Lah) 130 it was laid down that where a sale of joint family property by the manager of the family is found to have been without family necessity, a coparcener challenging the sale is entitled to recover possession of whole of the property sold & not merely of his share in the property. Two other cases namely Ralla Ram V. Atma Ram, 1933 AIR(Lah) 343& Jwala Parshad V. Protap Udai Nath,1916 AIR(Pat) 203 may also be referred to profitably. In the former case it was held by (sic) J. that