YASODA Vs. AMAR NATH

JUDGEMENT

(1.) THESE are two appeals; one by Yashoda plaintiff and the other by Amarnath defendant in a suit for ejectment and arrears of rent brought by Bala Prasad deceased husband of Mst. Yasoda against Laxmichand, the deceased father of Amarnath. For the sake of convenience, hereinafter, in this judgment Amarnath would be referred to as the defendant and Mst. Yasoda as the plaintiff and Bala Prasad would be referred to as the deceased p;aintiff and Laxmichand as the deceased defendant.

(2.) THE plaintiff's case is that the deceased defendant had executed a lease in respect of four propertied described by the plaintiff as properties PA, PB, PC and PD in the plan attached to the plaint and shown therein in red colour in favour of the deceased plaintiff with a rent of Rs. 40/- P. M. This property is situated in the town of Alwar. THEre was a stipulation in the lease that if the leassee did not pay rent for two months, the lessor would be entitled to have the properties vacated. It was stipulated that the lessor cold have the properties vacted also after one month's notice. It was also stipulated that interest would be charged at the rate of 12% P. A. on arrears of rent. THE plaintiff alleged that the deceased defendant had not paid rent for two months and, therefore, he was calle upon to vacte the property. A suit was, thererore, brought for ejectment and arrears of rent for 19-1/2 months at the rate of Rs. 40/- P. M. amounting to Rs. 780/- with interest and cost of notice. THE total claim was thus laid for the recovery of Rs. 800/ -.

(3.) IT was argued by the learned counsel for the plaintiff that at least after the death of Laxminarain during the suit, the deceased defendant became entitled to the property and by virtue of sec. ,43 of the Transfer of Property Act the transfer to the deceased plaintiff became operative. I do not think that sec. 43 applies to the facts of the present case because it has not been shown that it was not known to the deceased plaintiff that Laxmichand was not the adopted son of Chunilal and that he bonafide believed the statement made in the various documents including the lease about the adoption of the deceased defendant by Chunilal. IT is clear that a document was executed in favour of the deceased defendant in which the latter described himself only as a son of Laxminarain and not as adopted son of Chunilal. Moreover, it is in evidence that the deceased plaintiff was the Vakil of the deceased defendant's family. At any rate, a lawyer being aware that it was for the first time that the deceased defendant was described as an adopted son of Chunilal in a document in his own favour, he must have been put on an inquiry as to whether the allegation about the adoption by Chunilal in that document was correct. He could have referred to the previous deed in his favour where the deceased defendant was not described as an adopted son of Chunilal. Being a lawyer he must have been aware that heavy burden rests upon him who alleges himself to be an adopted son and if he were entering into a transaction bonafide,be ought to have asked the deceased defendant to bring forward satisfactory evidence to show that he was the adopted son of Chunilal. The transaction, however, in which the deceased plaintiff was entering, was only a colourable one, so for as properties PA, PC and PD are concerned, and, therefore, he did not worry about asking for satisfactory evidence of the adoption of the deceased defendant by Chunilal. I am not satisfied that the deceased plaintiff was misled by any fraudulent or erroneous representation of the deceased defendant.