Budh Raj and others vs Bhanwar Lal

Nigam, J.C.

Bhanwar Lal filed Civil Suit No. 109 of 1944 in the Court of the Subordinate Judge, Beawar, against Megh Raj and two others, claiming a declaration that the sale-deed executed by his adoptive father Rupa in favour of defendants 2 and 8 on 5-4-1945, was not binding on the plaintiff and praying that possession of the (sic) be delivered to him. The suit was (sic). The learned Subordinate Judge, Beawar set aside the sale and directed delivery of possession to the plaintiff.

He also held that the defendants 2 and 3 were not at that time entitled to a refund of the purchase-money. Against that judgment and decree, the three defendants appealed to the District Judge. The learned Additional District Judge by his judgment dated 9-8-1952 dismissed the appeal with costs, and now the three defendants have come up in second appeal. I have heard the learned counsel for the parties.

The first point urged by the learned counsel for the appellants is that the Courts below, have incorrectly interpreted the words ''ancestral property''. The learned counsel''s contention is that on the evidence on the record, it was not proved that Rupa''s grandfather had been the owner of the suit property. The learned counsel concedes that the finding of fact recorded by the learned Additional District Judge that Rupa''s father Nanda had been the owner of the property is binding on him.

The learned counsel''s argument is that property becomes ancestral only when it reaches the grandson and not when it is inherited by the son of the person acquiring it. In support of his contention, the learned counsel has referred me to - ''Baijnath v. Maharaj Bahadur'', AIR 1932 Oudh 158 (A) and - ''Mt. Sirtaji v. Algu Upadhyay'', AIR 1936 Oudh 331 (B). An earlier judgment of the same Court in - AIR 1931 108 (Oudh) was held not to be applicable.

The learned counsel has also referred me to - ''Sujandas Alimchand v. Shankerdas Gopaldas'', AIR 1937 Sind 36 (D). In - Mt. Ram Dei Vs. Mt. Gyarsi and Others, the question was left open (Page 552, column 1). The learned counsel for the respondent has referred me to - ''Kundanbai v. Satnarayan'', AIR 1951 Nag 270 (F). The two Oudh rulings relied on by the learned counsel were referred to and dissented from. A reference was also made to Paragraph 223 of Mulla''s Hindu Law. If I may say so, I respectfully agree with - '' AIR 1951 Nag 270 (F)�.

I am of opinion that any property inherited by a Hindu, subject to the Mitakshara School of law, from any of his three ancestors, that is the father, (grandfather or great grandfather would be ancestral property, if at the time he succeeds to it, there is in existence any son or grandson, who is entitled to share in the property by virtue of his having been born in the family. Accordingly, I am unable to see any force in the contention urged by the learned counsel.

The second question raised by the learned counsel is that the two Courts below were wrong in holding that defendants 2 and 3 were not entitled to a refund of the purchase-money as a condition precedent to the delivery of possession to the plaintiff. The learned counsel has referred me to - K. Peramanayakam Pillai Vs. S.T. Sivaraman and Another, . This ruling does not support the case of the learned counsel. Therein it was held that the alienee was entitled to have a condition imposed in the very suit that the plaintiff should not recover possession of his half share of the property without payment of half share of the binding consideration.

The consideration in the case, with which I am concerned, is not of a binding character. Impliedly this ruling goes against the learned counsel''s contention. If the alienee was held to be entitled to payment of the sale consideration as a pious obligation binding on the sons, no distinction need have been made between a binding consideration and one not binding in character.

The learned counsel has also referred me to - Polavarapu Lingayya (died) and Others Vs. Vuputuri Punnayya and Others, This was a case for recovery of the sale consideration after the sale had been set aside. ''Amir v. Kahan Chand'', AIR 1923 Lah 255 (I), was dissented from in - AIR 1928 111 (Lahore) . Ram Das Singh Vs. Tanak Singh and Others, does support the contention of the learned counsel. Madan Gopal and Another Vs. Sati Prasad and Another, and - '' AIR 1928 111 (Lahore) , do not support the contention of the learned counsel. I am, therefore, of the opinion that the learned Additional District Judge was right in holding defendants 2 and 3 not entitled to a refund of their consideration as a condition precedent to the delivery of possession to the plaintin but that they must file a separate suit for the same.

No other point has been urged before me. I, therefore, see no force in this appeal and dismiss it with costs.