ISWARDHARI SINGH Vs. NARSINGH SINGH

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in an action for recovery of possession of immovable property. It appears that one Dhoordhar Singh left three sons Sarablal Singh, Narsingh Singh and Behari Singh. Sarablal left two sons Jaikissen Singh and Harikissen Singh and Behari Singh left a son Fateh Bahadur Singh. The parties were members of a joint Mitakshara family; and it has been found by the learned Subordinate Judge that they have not yet separated. On the 20 September 1905 Harikissen executed a conveyance in favour of the present appellant for Rs. 382 in respect of two cottahs of land purporting to sell thereby his share out of a larger plot of twelve cottahs which belonged to the entire family. Narsing for himself and as guardian for his nephew Jaikissen along with Fateh Bahadur then commenced this action on the 1 December 1905 for recovery of the property transferred, on the ground that it was part of the joint family property and an alienation of it by one co-parcener without the consent of the others and without proof of family necessity was void and inoperative. The claim was resisted substantially on the ground that the members of the family had separated, that upon partition four cottahs had fallen into the share of the two sons of Sarablal and that Jaikissen and Harikissen had each taken two cottahs. On this basis it was argued that it was quite competent to Harikissen to alienate the disputed land as he did.

(2.) The Court of first instance upheld this contention, found that the transfer by the second defendant in favour of the first defendant was for the consideration alleged in the conveyance and dismissed the suit. Upon appeal the learned Subordinate Judge has held that the members of the family are still joint and that the partition alleged by the defendant has not been established. On this ground he has held that the alienation is void and concluded that the plaintiffs are entitled to an unconditional decree for recovery of the property.

(3.) The first defendant has now appealed to this Court and on his behalf the judgment of the Subordinate Judge has been challenged substantially on two grounds, namely, first that the Subordinate Judge ought to have held that there was a partition as alleged by the defendant, and secondly, that in any view of the matter the plaintiffs are not entitled to an unconditional decree for recovery of possession, and that the Court ought to protect the purchasers who paid Rs. 382 to the second defendant on the faith of his representation that there was a partition of family property and that he was competent to alienate the two cottahs which form the disputed property.