LAWS(PAT)-1950-2-2

ISARI TIWARI Vs. BINDESHWARI PANDEY

Decided On February 07, 1950
ISARI TIWARI Appellant
V/S
BINDESHWARI PANDEY Respondents

JUDGEMENT

(1.) IN this suit the plaintiffs alleged that they and defendant 2 were members of a joint Mitakshara family; that on 15-6-1945 defendant 2 executed a sale deed in favour of defendant 1 with respect to his undivided share of the joint family properties; that the sale deed was without consideration or legal necessity and defendant 1 obtained no title by virtue thereof. The plaintiffs therefore asked for a declaration that the sale deed dated 15-6-1945 was illegal and not binding upon them. Defendant 1 contested the suit on the ground that the sale deed was for consideration and legal necessity. He further alleged that on 3-11-1945 after the institution of the suit defendant 2 executed another sale deed with respect to the same properties. It was also alleged that on 29-8-1945 defendant l had given notice to the plaintiffs that he would separate from the joint family. Defendant 1 therefore pleaded that his title has become perfected in any event. The learned Munsif found that the sale deed was genuine and for consideration. But he held that before the institution of the suit defendant 2 and the plaintiffs were joint and so by executing the sale deed dated 15-6-1945 defendant 2 obtained no title to the undivided share of the joint properties. As regards the second sale deed dated 3-11-1945 the learned Munsif held that by virtue of the notices, Exs. C to C/5, defendant 2 became separate from the plaintiffs and by the execution of the sale deed defendant 2 conveyed a valid title to defendant 1 with respect to the properties in suit. The learned Munsif therefore dismissed the suit.

(2.) IN appeal the learned Subordinate Judge held that "the plaintiffs were in possession and defendant 1 was entitled to seek partition" and therefore "modified the Judgment of the learned Munsif to that extent."

(3.) NEVERTHELESS it was argued for the respondents that since the grant of a declaratory decree was discretionary the High Court ought not in second appeal to interfere with that discretion. But it is a well-settled principle that a Court of Justice ought not to exercise its-discretion in arbitrary or capricious manner. As I have shown the lower Courts have committed an error of law in the present ease in taking notice of subsequent events and in refusing to grant relief to the plaintiffs for that reason it must be held that the lower Courts have not exercised the discretion in a legal manner.