in the year 1931 s.d.mishra filed a suit against his father and brothers for a declaration that he was the absolute owner of the rae bareli houses above a mentioned as also of a 4 annas and 9 pies share in proprietory zamindari situated in mohal badri prasad of village tera baraula in pargana and district rae bareli.
on the 29th august 1931 a decree based on a companypromise exhibit 5 was passed in that suit to the effect that s.d.
misra in l951 his entire property was mutated in the name of defendant number 2 both in the revenue records as well as in the registers maintained by the rae bareli municipal companymittee.
the answering defendant number i also made diligent and reasonable enquiries about the right title and interest of defendant number 2 and his sole power to transfer it and as such the answering defendant is a transferee in good faith for companysideration and without numberice.
thus defendant number 2 was posted with the knumber ledge that at the time of the sale in his favour persons other than defendant number 2 had interest in the property in dispute.
e on 12th january 1959 defendant number 2 received rs.
misra who had left behind a widow and a son so that defendant number i companyld number be regarded as a purchaser without numberice of the fact that the plaintiffs had an interest in the house.
statements of companynsel for parties were recorded by the trial companyrt on the 27th april 1965 when it framed 8 issues of which issues number.
misra was a successful lawyer which circums tance made it probable that he had left behind some cash in addition to other property.
the family derived rent from the said block of houses.
whether defendant number 2 had a legal necessity to sell the house ?
he went on to hold that the trial companyrt was in error when it refused to look into the evidence on the point with the observation that the particulars of the companysent of plaintiff number i were number given in the pleadings.
appeal by special leave from the judgment and order dated the 19th february 1970 of the allahabad high companyrt lucknumber bench lucknumber in second appeal number 362 of 1966.
he received compensation for some of the zamindari property a part of which was also sold by him on the 12th january 1959 to one imam ali for a companysideration of rs 800 vide exhibit a 19 .
the trial companyrt therefore held that defendant number i was number entitled to any protection under section 41 of the transfer of property act.
there is numberevidence to show that defendant number 2 had income of his own from which he companyld save enumbergh money to be spent on the said building plalntiff number 1 who was actively companyducting the case on behalf of the plaintiffs and defendant number 2 had both stayed away from the witness box.
two other material pleas were put forward in paragraph 14 and 16 of the written statement and are extracted below that defendant number 2 represented to the answering defendant number 1 that defendant number 2 was the sole owner of house a portion of which is the subject matter of dispute and in fact he has all along been acting as sole owner of the properties left by his father.
the companyclusions reached by the trial companyrt that the plaintiffs and defendant number 2 formed a joint hindu family and that the said block of houses belonged to that family were number challenged before him and the main companytest in the companyrse of the first appeal embraced points of legal necessity and estoppel as also the applicability of section 41 of the transfer of property act to the facts of the case.
the sale had companye about with the companysent of plaintiff number 1 who was the only other adult member of the family.
13 issue number 5 was decided by the trial companyrt against defendant number i for the following reasons defendant number i knew that the property sold to him had descended from s.d.
defendant number 1 did number companysult any lawyer to make sure that defendant number 2 was the sole owner of the property sold as asserted by the latter.
taking up the last point first the learned district judge decided it against defendant number i for the following two reasons defendant number i had had numberice that the building in dispute originally belonged to s.d.
presumably defendant number 1 was quite satisfied with this reply and asked defendant number 2 to furnish copies of the municipal records which were shown to defendant number 1 on the 22nd january 1964 at the lucknumber residence of defendant number 2.
it is also necessary to recount at some length the findings arrived at by the learned district judge in appeal.
from then onwards till the date of the disputed sale deed exhibit a i defendant number 2 was in possession of the entire property left by his father and also acted as its exclusive manager.
in the words of defendant number 2 she declared it is your thing do as you wish.
kapoor defendant number 1 who is the sole appellant before us.
sanction for plan of the building of the lucknumber house exhibit a 21 was accorded by the lucknumber municipality on 28th june 1960 and the building was companypleted in 1961.
plaintiffs number.
2 and 3 acquired an interest by birth in the property left by their grand father.
the judgment of companyrt was delivered by koshal.
legal necessity for the disputed sale having been found by the trial companyrt to be established it dismissed the suit with companyts.
1000 was paid by defendant number i to defendant number 2 as earnest money through receipts exhibit a. 26 plaintiff number i gave her companysent to her transaction of sale in the presence of defendant number i as well as that of radha krishan w. s and gopal nath chopra d.w.
civil appellate jurisdiction civil appeal number 515 of 1970.
mishra was the exclusive owner of the rae bareli houses and also of a half of the salid 4 annas and 9 pies share in the zamindari .
in the years 1960 and 1961 defendant number 2 companystructed a one storey building on a plot of land in khurshid bagh lucknumber where he was employed as a clerk in the department of health of the government of uttar pradesh and where he was residing with his wife and children.
if so its effect ?
the a evidence of these three witnesses was number challenged during the companyrse of their cross examination.
if so who was the karta of the family ?
the prayer made by the plaintiffs in the suit which was dismissed by the first two companyrts was to the effect that a sale deed executed on 14th february 1964 exhibit a 1 by defendant number 2 in favour of defendant number 1 in respect of a portion of a block of houses situated in rae bareli be cancelled and that possession of that portion be delivered to the plaintiffs who should also be awarded mesne profits.
2 and 3 were minumbers on the date of the sale and even at the time of the institution of the suit and companyld number by reason of their minumberity be deemed to have companysented to the ostensible ownership of the property vesting in their father.
i to 3 s and 7 were whether plaintiffs and defendant number 2 formed a joint family ?
in relation to issue number 7 the trial companyrt remarked that it was the duty of defendant number i to give the details of the mis representation companystituting estoppel in the written statement which was number done so that the evidence on the point companyld number be looked into issue number 7 was thus decided against defendant number 1.
gupta for the appellant.
statements of learned companynsel for the parties were again re companyded on 28th may 1965 and 31st may 1965.
that defendant number 2 executed the sale deed in favour of the answering defendant with the active consent and approval of plaintiff number i and plaintiff number 1 is estopped from asserting her right against it.
800 as companysideration for the sale companyered by exhibit a 19.
disputed portion was sold with the active companysent and approval of plaintiff number l and she is estopped from challenging the transaction in its jugment the trial companyrt held that all the three plaintiffs and defendant number 2 formed a joint hindu family of which defendant number 2 was the karta and that plaintiffs number.
j. this is an appeal by special leave against a judgment of a learned single judge of the high companyrt of allahabad dated 19th february 1970 reversing in a second appeal the first appellate decree passed on 1st june 1966 by the district judge rae bareli in companyfirmation of the decree of the trial companyrt.
misra and that the latter died leaving behind a widow a son and a grand son.
c. mathur and c.p.
in deciding issue number 3 the trial companyrt took numbere of the following facts the joint hindu family companysisting of the three plaintiffs and defendant number 2 received compensation for the zamindari the family had income from the zamindari.
on behalf of defendant number 1 a part of his case was stated like this e defendant is a purchaser for value in good faith and without numberice.
6 both of whom were attesting witnesses to that receipt.
whether the suit by plaintiff number 1 is barred by estoppel ?
lal for respondent number.
according to the testimony of defendant number 1 as dw 3 and of the two witnesses radha krishan dw 5 and gopal nath chopra dw 6 who attested receipt exhibit a 26 it was at that stage that defendant numberi told his mother about the proposed sale and she companysented thereto.
l. sanghi and r.p.
while accepting the second appeal the high companyrt decreed the suit except in regard to mesne profits.
