DROPDI DEVI Vs. JAGDISH CHANDRA

JUDGEMENT

(1.) This civil second appeal was filed by defendant Kanhaiya Lal, against whom the plaintiff-respondents suit for cancellation of documents and recovery of possession over the immovable properties and mesne profit was decreed by the two courts below. Kanhaiya Lal passed away during the pendency of the appeal. As such, his legal representatives were brought on record and substituted in his place. The appeal is now being continued and prosecuted by legal representatives.

(2.) In this appeal, an interesting question of Hindu Law, relating to the right of a purchaser of an interest of a coparcener in the joint family property, is involved. There is no judicial pronouncement of our High Court on the point involved.

(3.) The respondents are the heirs and descendants of one Bhagwati Lal Kayastha, as set out in the pedigree mentioned in para '1' of the plaint. Plaintiff Smt. Phool Kanwar is the widow of Bhagwati Lal. Bhagwati Lal had one son Heeralal. Plaintiff Smt. Pam Kanwar is wife of Heeralal while the other respondents are his sons and daughters. Smt. Phool Kanwar, Smt. Pam Kanwar, Jagdish Chandra and Ashok Kumar instituted a suit against defendant Kanhaiya Lal, impleading the other sons and daughters of Heeralal as pro forma defendants for cancellation of certain documents and recovery of possession over immovable property in the Court of the Civil Judge, Udaipur on August 23, 1969. The case set up in the plaint was that Bhagwati Lal passed-away in 1952 A.D. Heeralal left the house and his whereabout could not be ascertained or known for last more than eleven years. the house described in para 5 of the plaint, situate in the city of Udaipur, is the ancestral property left by Bhagwati Lal. No partition took place between the sons and daughters of Heeralal, his wife and mother. The house in dispute, thus, remained the joint family property of them all. Defendant Madanmohan Lal, who is the eldest son of Heeralal mortgaged a room of the said house to defendant Kanhaiya Lal for a sum of Rs. 1,000/- on October 30, 1964 by a registered deed without the consent of the plaintiffs and other heirs of Heeralal. Defendant Kanhaiya Lal, in pursuance to the said mortgage. obtained possession over the mortgaged room. Defendant Kanhaiya Lal also filed a suit for the recovery of money against defendant Madanmohan Lal and obtained decree against him. In execution of that money decree, the mortgaged room was got attached. Later on, the equity of redemption of the mortgage of the aforesaid room was put to auction by the Court and the equity of redemption was purchased by defendant Kanhaiya Lal on August 23, 1967 for a sum of Rs. 520/-. It was alleged that neither the original mortgage nor the auction conducted by the Court was valid and legal because the mortgage was made and the debt was incurred by defendant Madanmohan Lal with without the consent of the plaintiffs and other heirs of Heeralal. It was prayed that the mortgage-deed as well as the sale certificate issued by the Court be declared null and void as against the plaintiffs and possession of the room in dispute be delivered to them from defendant Kanhaiya Lal. The plaintiffs also claimed mesne profit at the rate of Rs. 15/- past pendente lite and future.