MADAN LAL Vs. KAMLA DEVI

JUDGEMENT

(1.) THIS appeal by defendant No. 2 Madanlal (purchaser) is directed against the judgment and decree dated December 3, 1971 of the Additional Civil Judge, Udaipur, by which he affirmed the judgment and decree dated February 15, 1971 of the Munsif, Kanore.

(2.) THE plaintiff Madhav Lal, who died during the pendency of the appeal and whose legal representatives are respondents No. 1 to 8, instituted suit for declaration and injunction. The case of the plaintiff Madhavlal was that there is a shop described in para 2 of the plaint situate at Bhinder. This shop is the ancestral properly of the plaintiff. The plaintiff claimed that he was adopted by defendant No. 1 Modilal. Defendant No. 1 Modilal has also died. The shop was sold by defendant No. 1 to defendant No. 2 Madam Lal on May 4, 1966 for a consideration of Rs. 5000/ -. The plaintiff asserted that the sale was without any legal necessity and without consideration. The shop was said to be in possession of defendant No. 3. Kalu as a tenant. Ors the basis of the sale -deed, Madan Lal instituted a suit for eviction against Kalu (defendant No. 3). It was prayed by the plaintiff that the sale -deed dated May 4, 1966 may be declared null and void and defendant No. 2 may he restrained from taking possession of the shop from defendant No. 3 Defendant No. 1 and 3 filed joint written statement. It was admitted by them that the plaintiff was adopted by the defendant No. 1, and that the disputed shop was ancestral one and the plaintiff has a legal right in it. The sale -deed executed by defendant No. 1 in favour of defendant No. 2 was also admitted. Some other pleas were raised by defendants No. 1 and 3, with which I am not concerned in this appeal. Defendant No. 2 filed a separate written statement denying all the allegations made by the plaintiff in the plaint. He denied that the plaintiff was adopted son of defendant No 1 or that he had any right in the disputed shop. It was also denied that the shop was ancestral property.

(3.) AGGRIEVED , defendant No.2 filed an appeal. Before the learned Additional Civil Judge, four points were raised. They related to the validity of the adoption of the plaintiff by defendant No.1, ancestral nature of the property, legal necessity and consideration. The learned Additional Civil Judge found (i) that the plaintiff was validly adopted by defendant No. 1; (ii) that the shop in dispute is ancestral property; (iii) that there was no legal necessity for the plaintiff to have sold the shop and (iv) that defendant No. 1 had received sale consideration of Rs. 5000/ - from defendant No.2. The learned Additional Civil Judge opined that defendant No. 1 had no right to sell the ancestral property and that defendant No.2 is not the bona fide purchaser of the shop in dispute. In view of this, he dismissed the appeal and maintained the decree passed by the Munsiff on December 3, 1971. Hence this second appeal by defendant No.2 (purchaser).