PATROO LAL Vs. MTPARBHAWATI KUAR

JUDGEMENT

(1.) This is an appeal by the sole plaintiff Patru Lal whose suit was dismissed by the Civil Judge of Azamgarh. The plaintiff and pro forma defendant 5, Madho Prasad, are the sons of Moti Lal, defendant 3 and of Mt. Bhagwanta Kuer, defendant 4. The suit was brought for possession of a half share in certain houses and shops by cancellation of a sale dated 21 June 1921, of a sale deed dated 17 November 1925 and of an auction sale dated 9 February 1928.

(2.) Moti Lal, defendant, in 1913 brought a suit for separation of himself and his son, Madho Prasad, from Sarju Prasad, father of Moti Lal, and Hira Lal, son of Sarju Prasad and brother of Moti Lal. At that time the present plaintiff was not born. Sarju Prasad died and the original family property went as the result of partition and inheritance half to Hira Lal and half to Moti Lal and the latter's sons. Moti Lal began to borrow money. One of these transactions led to a decree being obtained by one Tribeni Misir and an auction sale dated 21 June 1921. The plaintiff filed a suit that the joint family property was not liable and the result was that only the interest of Moti Lal, excluding the interest, of his two sons, passed by the auction and for this reason in this appeal we have not been asked to set aside the auction sale dated 21 June 1921. What has been urged before us is that the sale deed dated 17 November 1925 does not bind the plaintiff or his brother, the defendant Madho Prasad, and should be cancelled as should the auction sale of 9th February 1928. This auction sale was the result of execution proceedings on a decree obtained against Moti Lal and his two sons. No prayer has been made that decree be declared invalid against the plaintiff and his brother and there being nothing against the auction sale in itself it cannot be set aside while the decree which has led to it holds good and seeing that no prayer has been made for the decree to be set aside, the appeal in so far as regards the auction sale of 9th February 1928 fails.

(3.) There remains to be considered the sale deed dated 17 November 1925. This sale deed was executed by Moti Lal himself and by defendant Mt. Bhagwanta as guardian of the plaintiff "and of his brother Madho Prasad, defendant. The learned Civil Judge has found that Moti Lal and his sons formed a joint family and this sale deed of joint family property was valid against the plaintiff and his brother. If this was joint family property the sale deed is valid against the plaintiff and his brother but the learned Counsel has urged that there was a division of the joint family property as the result of a decree. The consideration for this sale deed was as follows Rs. 225 to pay off certain decrees. The decrees have not been pointed and we do not know against whom they were obtained, whether against Moti Lal himself or against the whole family and there is, therefore, nothing to show that they did not bind the present plaintiff. The second part of the consideration is Rupees 1021-4-0 to pay off a certain mortgage. The plaintiff and his brother brought a suit for a declaration that this mortgage was not binding on them but they failed. This being so, that part of the consideration cannot be challenged now. The same applies to the third part of the consideration, a sum of Rs. 425 to pay off a decree against Moti Lal and his two sons which decree the sons by a suit tried to have declared not binding on them but failed. There is then a sum of Rs. 559-12-0 which is only for registration fees and if the rest of the consideration is good this cannot be challenged. The last item is a sum of Rs. 250 to pay off a decree based on an antecedent debt of Moti Lal for payment of Government revenue. This too cannot be challenged.