PIRTHI SINGH Vs. SATISH KUMAR

JUDGEMENT

(1.) Both the present regular second appeals against judgment and decree dated 25.08.1986 whereby Court of first appeal accepted the appeal and judgment and decree dated 20.02.1985 passed by learned Sub Judge was set aside.

(2.) For the sake of convenience the parties are being referred to as per their status before the Court of first instance.

(3.) Detailed facts of the case have already been recapitulated in the judgments of both the Courts below. However relevant facts for the purpose of decision of appeals that parties to the litigation are Brahmins by caste and they constituted joint Hindu family and are governed by Mitakshara School of Hindu Law. Ram Phal defendant had executed registered mortgage deed Exhibit D-3 in respect of the suit land for a sale consideration of Rs. 7,000/-. On 04.06.1970 the same land was agreed to be sold by him to the mortgagee Pirthi Singh vide agreement Exhibit D-2 for total sale consideration of Rs. 17,500/- and Rs. 8,250/- were received by Ramphal as earnest money. Later on Ram Phal executed sale deed Exhibit D-4 of the same land for a total consideration of Rs. 17,500/- on 26.05.1971 out of which only Rs. 2250/- were received before Sub-Registrar adjusting balance of Rs. 7,000/- being mortgaged consideration of the mortgage deed Exhibit D-3 and Rs. 8,250/- as earnest money received vide agreement Exhibit D-2 against the sale consideration. Ram Phal also executed agreement Exhibit D-8 dated 13.10.1972 to sell the suit land detailed in head note in favour of Pirthi and Ram Mehar for Rs. 21,000/- and received Rs. 8,000/- as earnest money. Later on he had executed sale deed Exhibit D-6 in respect of land measuring 24 kanals by receiving Rs. 13,000/- before the SubRegistrar. Ram Phal further sold the land detailed in head note C of the plaint measuring 12 kanals in favour of defendant No.3 vide sale deed Exhibit D-7. Satish Kumar plaintiff had taken the plea that land in dispute was ancestral/coparcenary property of the plaintiff and Ram Phal and the same was not liable to be sold without consideration and legal necessity but Ram Phal alienated the same without any consideration as legal necessity and declaration be granted accordingly.