NARO Vs. HARBANS LAL

JUDGEMENT

(1.) MST. Naro mother of Dina Bandhu deceased has filed this Letters patent Appeal from the decision of Dulat, J. , in Regular Second Appeal No. 592 of 1954, who allowed the appeal of the defendant-appellant, set aside the decree passed by the District Judge, Hoshiarpur, and affirmed the decree of the trial Court dismissing the plaintiff's suit, but left the parties to bear their own costs throughout.

(2.) THE facts giving rise to this suit are that one Madhu Sudan, a Brahman of Tika Dhanotu, village Dodamb, Tahsil Kangra, sole 39 kanals 19 marlas of land by a registered deed of sale dated 2nd of June, 1936, (Exhibit D-1) in favour of Pala Ram, father of defendant No, 1 Harbans Lal. This sale was for Rs. 2,500/- and the mutation of sale was sanctioned at No, 251 on 15th of January, 1937. The suit was instituted by Dina Bandhu, the younger of the two sons of the alienor, Madhu Suda, on 20th/21st of March, 1951, nearly 15 years after the sale which was impugned. He became major on 24th of June, 1948m and the suit has thus been instituted within three years of his having attained the age of majority. The plaintiff prayed for a decree for possession of the land in dispute alleging that the sale effected by his father, Madhu Suda, was of ancestral land and was without consideration and necessity and, therefore, not binding upon him. His elder brother, Ishri Parshad, who was major at the time of the sale, had given his consent and he was on this ground impleaded as a pro forma defendant. When one suit was instituted, Harbans Lal defendant No. 1 was a minor aged 17 years and had attained the age of majority during the course of the trial. On, this reckoning, Harbans Lal must have been aged two or three years at the time of the execution of the sale in favour of his father Pala Ram.

(3.) HARBANS Lal defendant No. 1 resisted the suit on the usual ground that the sale was not of ancestral land and that it was for consideration and necessity. The trial Court framed the following issues:-1. Whether the suit is within time? 2. Whether the property in suit is ancestral qua the plaintiff? 3. If issue No. l is proved, whether the sale in suit was effected for consideration and valid necessity? 4. Whether the plaintiff is governed by custom and what that custom is? 5. What is the effect of the consent given to the sale in suit by Ishri Parshad defendant No. 2? 6. Whether the plaintiff can sue for the share of Ishri Parshad? 7. Relief. It was held on the first issue that the suit was within time and that the land was ancestral with the exception of khasra No. 100, measuring 1 kanal 15 marlas, which was held to be nonancestral. It was held under the fourth issue that the parties were governed by the agricultural custom in matters of alienation and succession. The sixth issue was decided against the plaintiff as the latter had consented to the property being sold by his father. He had also his own sons alive and, under the circumstances, the plaintiff was not entitled to sue for the recovery of possession of more than half the property in dispute. Issues 3 and 5 were disposed of together and these are the only material issues for purposes of disposing of this appeal. The trail Court found that the consideration for the sale as mentioned in the sale-deed consisted of the following items: 1 Rs. 80/- received previously by way of earnest-money. 2 Rs. 1,220/- received at the time of the execution of the deed of sale before the Registrar for payment to antecedent creditors. 3 Rs. 1200/- left with the vendee for payment to other antecedent creditors of the vendor. The deed of sale was found to be for consideration except for Rs. 100/- out of Rs. 1,200/ -. The necessity for the sale was held to have been proved. On these findings the Senior Subordinate Judge dismissed the plaintiff's suit.