DARSHAN LAL Vs. BALWANT RAI

JUDGEMENT

(1.) THIS appeal has been filed against judgment of the learned lower Appellate Court modifying that of the trial Court. The admitted facts are that the property in dispute measuring 45 Kanals 4 Marlas originally belonged to Mehanga Ram. It was inherited ultimately by his three sons who partitioned the same, thus leaving 13 Kanals 14 Marlas in the hands of each. Thereafter, Om Parkash, one of the sons suffered a decree of his entire land viz., 13 Kanals 14 Marlas which he had obtained from Mehanga Ram and certain other property purchased by him in favour of his brother. The sons of Om Parkash filed the instant suit claiming that the said consent decree was inoperative against their rights. The trial Court dismissed their suit. However, the learned lower appellate Court partly allowed their appeal and held that since 13 kanals 14 marlas of land was ancestral in the hands of Om Parkash, he would be owner of only 1/4th , the rest being the share of his three sons. Consequently, the alienation of 3/4th share of the ancestral land measuring 13 kanals 14 marlas viz. 10 kanals 5.1/2 marlas was set aside by the learned lower appellate Court.

(2.) THE following questions have been proposed by the learned counsel :-

(3.) LEARNED counsel for the appellant has relied upon S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and others, 1994(1) SLJ 565 to contend that on partition, the share of Om Parkash became self acquired property and he could, thus, transfer it to his brother Darshan Lal. She has relied upon paragraph 6 of the said judgment which is to the following effect :-