RAM NATH Vs. NANAK CHAND

JUDGEMENT

(1.) This appeal arises out of a suit for partition of two 3hops, the plaintiff claiming a three-fourths share in one and half in the other. He claims title from Mangu Lal, defendant 3 under a sale deed dated 15 December 1919, executed by the latter. The deed purports to transfer to the vendee all rights which the vendor had. Mangu Lal himself did not contest the plaintiff's suit but one of his half-brothers, the present respondent 1, resisted it on grounds which will presently appear. The plaintiff also claimed a subsidiary relief of damages amounting to Rs. 500 on the allegation that defendant 1 completely demolished a portion of one of the shops and appropriated the materials thereof. The Munsif, before whom the suit had been instituted, decreed the plaintiff's claim for partition and to damages amounting to Rs. 120 to be paid by defendant 1. The lower appellate Court dismissed the suit in its entirety on an appeal preferred" by defendant 1. In the present second appeal by the plaintiff, ;the only contesting respondent is defendant 1, though other defendants including Mangu Lal, the plaintiff's vendor havo been impleaded as respondents. It is not disputed that the shops in question formed part of ancestral property in the hands of one Mathura Prasad, who had four sons. One of these sons is Mangu Lal, under whom the plaintiff claims and who was born of Mathura Prasad's first wife. Defendants 1, 2 and Basdeo, father of defendants 4 and 5 were the sons of Mathura Prasad by another wife. In consequence of certain disputes which arose in the lifetime of Mathura Prasad, the entire family property was partitioned through certain arbitrators, who gave an award on 26 February 1909. It provided, inter alia, that the property specified below and entered under head 0 belongs to him (Mangu Lai), who is the absolute owner thereof (malik kamil hai). He is to appropriate, and maintain himself with the income and rent of such property, but he will have no power to make any transfer, such as sale, mortgage, lease, hypothecation as security and theka for a term or in perpetuity etc., in respect of such property ; and if he does make a transfer, the same shall be considered to be invalid (najaiz). Besides Mangu Lal any one among his descendants (aulad) -will have power to make mortgage, etc.

(2.) Among the properties thus given to Mangu Lal are shares in the two shops now in question. As already stated, he was given a three-fourths share in one shop and half in another. Another part of the award provides that Mathura Prasad is to collect rent and pay to Mangu Lal his share thereof. Mathura Prasad subsequently died, and it does not appear who collected the rent of the joint shops ; but it was admitted by defendant 1 in the Court of first instance: that Mangu Lal was in possession of the shops, although he confines (sic) that possession to have been for maintenance only and through re- oeipts of proceeds directly and indirectly.

(3.) This admission is noted in the judgment of the first Court under issue 4 which relates to limitation and adverse possession a plea raised by defendant 1. It was pleaded in defence that Mangu Lal had transferred the property in dispute to the mother of defendant 1 by a sale deed, dated 22 July, 1902, that the reference to arbitration and the award ware null and void for certain reasons stated in the written statement, which it is not necessary to mention in detail, and that if the award is valid, Mangu Lal had no transferable interests in the shops so as to give any right to his transferee, the plaintiff. The only ground on which the plaintiff's right to claim partition has been challenged before us is that, Mangu Lal having been given no more than a right to maintain himself with the income of the property allotted to him by the award, his transferee, the plaintiff-appellant, acquired no rights which can entitle him to maintain a suit for partition. The validity of the reference and the award on the allegations mentioned in the written statement has not been questioned before us and so far as we can gather from the judgment of the lower appellate Court, it was not challenged in that Court also.