JAGADISH PRASAD Vs. SRI DHAR

JUDGEMENT

(1.) The plaintiff is the adopted son of Dwarka Prasad, and seeks to impugn the validity of two sale-deeds, purporting to have been executed by Dwarka Prasad in respect of certain joint ancestral property belonging to the family. One of the sale- deeds was executed on the 12 July 1911, for a consideration of Rs. 1,500, and the other was executed on the 24 July 1924, for a consideration of Rs. 70. The allegation of the plaintiff was that some differences had arisen between the plaintiff and his adoptive father while he was a minor, and some litigation had taken place between them, the effect of which was that the adoption of the plaintiff was upheld and he was declared to be the owner of a half share in the disputed property. He challenges the right of Dwarka Prasad to sell the share belonging to him.

(2.) Both the sales were effected in favour of Jagdish Prasad, whose defence was that the plaintiff was not the adopted son of Dwarka Prasad and had no right to the property in question. He further pleaded that the sales were, in any case effective and for valid family necessity and that he, the defendant vendee, had purchased the property in good faith and for consideration, without any knowledge of the right claimed by the plaintiff. Both the Courts below find that the plaintiff was the adopted son of Dwarka Prasad and had a half share in the disputed property, and that Dwarka Prasad had no right to sell the share belonging to the plaintiff. They further find that the sales in question were made with the object of injuring the rights of the plaintiff and that the defendant-vendee could not be regarded as a bona fide purchaser without notice of the plaintiff's right. The question of legal necessity was not gone into by the Courts.

(3.) It appears that the plaintiff was adopted by Dwarka Prasad some time in 1893. In 1901 a suit was filed by Dwarka Prasad for the cancellation of the adoption, which was dismissed on the 30 April 1902, and that decision was upheld on appeal on the 13 August 1902. In 1909 there was a further litigation between the plaintiff and his adoptive father, when the plaintiff, through his mother as his next friend, sued for a partition of his half share in the joint property, alleging that Dwarka Prasad was wrongfully wasting and alienating the same. The suit was decreed by the trial Court for a partition of a 1/3 share of the entire ancestral property inherited by Dwarka Prasad; but on appeal he was declared to be a co-sharer to the extent of a half share; and the claim for partition was dismissed on the ground that the other persons interested in the property had not been impleaded in the suit. The sale deeds in question were executed after the above decree was obtained by the plaintiff. Since then there has been a formal partition between the plaintiff and Dwarka Prasad of the entire property, and the question for consideration is whether Dwarka Prasad was justified in selling the property belonging to the plaintiff after the plaintiff had been declared to be the owner of a half share therein.