RAM PRASAD Vs. KANHAIYA LAL

JUDGEMENT

(1.) First Appeal No. 35 of 1928 and First Appeal No. 97 of 1928 are cross-appeals by the defendant and the plaintiff respectively and arise out of the same suit.

(2.) It appears that one Ganeshi Lal had given authority to his wife to adopt a son and in pursuance of that authority she adopted Har Bilas and executed a deed of adoption on 5 May 1892. This Har Bilas subsequently adopted Ram Bahadur in 1902. For the purposes of this suit it has been admitted by the defendant- appellant that this adoption may be accepted as valid. In 1917 Har Bilas and his adopted son Raj Bahadur constituted a joint Hindu family. On 5 December 1917 Har Bilas executed a sale deed in favour of Ram Prasad, son of Lala Ballu Mal, the present appellant. This deed is printed on p. 37 of the paper-book and was for Rs. 34,000. Har Bilas described himself as the absolute owner in possession of the property transferred and also alleged that he had no partner or cosharer who might stand in the way of the transfer. But he did not expressly refer to his adopted son Raj Bahadur nor did he attempt to repudiate the alleged adoption.

(3.) The plaintiff Kanhaiya Lal obtained a simple money decree for Rs. 5,000 in 1916 against Lala Har Bilas and Raj Bahadur and in execution of that decree attempted to attach the property covered by the sale deed of 5 December 1917. The transferee Ram Prasad raised objections in the execution proceedings which were allowed and the property was released from the attachment on the ground that the property had been previously transferred to Ram Prasad. Kanhaiya Lal has, therefore, instituted the suit for a declaration that the said property is attachable and saleable in execution of his money decree and that the defendant transferee has no rights or interests in this property. In the plaint no specific case was put forward that the transfer was good to the extent of a half share and was invalid to the extent of the remaining half.