UMA SHANKAR LAL Vs. MAHABIR PRASAD

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of a house in the city of Ghazipur. On the finding of the Court below this house belonged to the ancestor of the plaintiffs Munshi Lachhman Prasad. Lachhman Prasad was Kayasth by caste and had a Rajput girl as his wife or mistress from whom a son Dip Narain was born. In either view he was an illegitimate son. He died leaving a son Mahabir Prasad, defendant 1. The plaintiffs are the sons of Ramapat Lal, a grandson of Lachhman Prasad who jointly with his nephew Dip Narain Lal executed a deed of gift of this house on 5 June 1913 in favour of Mahabir Prasad. At that time no son had been born to Dip Narain Lal but Ramapat Lal had sons alive who were minors. The plaintiffs case was that the family was joint and that the gift was without authority. The plea taken in defence was that this house was acquired by Lachhman Prasad for his Rajput mistress and had been in occupation of the defendants all along. In the alternative it was pleaded that the defendant had spent a large sum of money in overhauling the house which could not be given back to the plaintiffs without payment of compensation.

(2.) The learned Subordinate Judge has found that Dip Narain Lal and Ramapat Lal were separate, that the house had not been acquired for the Rajput girl but was a part of the ancestral property and that the defendant had overhauled the house and spent Rs. 1,050 on it. He, however, held the plaintiffs were not entitled to possession of any portion of the house but should be given Rs. 250, half of the value of the house at the time of gift.

(3.) The plaintiffs have appealed and the defendants have filed cross-objections. The evidence in favour of the finding that Dip Narain Lal and Ramapat Lal were separate is convincing and we see no reason to disturb that finding. It is also clear that the house was a part of the family property and therefore Dip Narain Lal had a half share in this house. At the time when he made the transfer he had no other member of his joint family in existence and was fully competent to transfer it. It is, therefore, obvious that the plaintiffs are not entitled to claim the half share of Dip Narain Lal.