ISHDAK TEWARI Vs. TAMESHAR

JUDGEMENT

(1.) In this case the plaintiffs appellants, Ish Dutt and Ram Murat, seek to set aside a sale-deed of joint family property executed by their respective fathers Mukat Nath and Parimeshwar Dutt on 28 May 1901 as having been made without legal necessity.

(2.) The following pedigree will assist in the understanding of the case: 2. The Trial Court dismissed the suit altogether. The lower Appellate Court dismissed the appeal of Earn Murat but allowed that of Ish Dutt in respect of one item of the sale consideration. The plaintiffs appeal and the defendants have filed cross-objections. The lower Court's findings of fact are: (1) That the family was joint when the sale was executed. (2) that a separation took place on the very next day after the date of the sale-deed. (3) that Ish Dutt's age was 20 at the time of suit.

(3.) The third finding is interpreted by both parties as meaning that Ish Dutt was alive at the execution of the deed but that the suit was filed within three years of his attaining majority and is, therefore, within, time. From the second finding it follows that, there being no longer any joint family in existence, each plaintiff can only sue to recover his own separate share. This is clearly the case, and the ground of appeal which was taken on this point has not been pressed. The Appellants contest the finding of the Court below that Earn Murat has no cause of action to contest the sale, but this result follows clearly from the second finding referred to above. Earn Murat was only eight years of age when the suit was filed in 1921. He was, therefore, born in the year 1913. At that date there was no community of interest between Parmeshwar Dutt and the branch of Mukat Nath, and the only property in which the plaintiff could acquire an interest by birth was the separate and ancestral property of his father Parmeshwar Dutt as it stood on the date of his birth. The plaintiff could not claim the benefit of any cause of action Ish Dutt might have, seeing that Ish Dutt belonged to a family which had separated from that of the plaintiff's father ten years before. The principle laid down in Bhup Kunwar V/s. Balbir Sahai 64 Ind. Cas. 885 : 44 A. 190 : 19 A.L.J. 978 : (1922) A.I.R. (A.) 342 does not apply, and the ordinary rule applies that he is not entitled to challenge a transaction made before his birth. The only property in which he acquired interest was his father's property as it stood on that date.