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Lachmi NaraIn Prasad and ors. Vs. Kishan Kishore Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1916All356; (1916)ILR39All126; 33Ind.Cas.913
AppellantLachmi NaraIn Prasad and ors.
RespondentKishan Kishore Chand and ors.
Excerpt:
.....transaction, and that it was not binding on the plaintiffs. in our judgement, if the suit be deemed to be a suit to set aside an alienation of joint family property, it is clearly time-barred as against lachmi narain prasad. on these grounds we are of opinion that the suit was bound to fail and has been rightly dismissed......of it on the 28th of april, 1881. the property belonged to one bishcshar prasad and his son lachmi narain prasad, the first plaintiff, at the date of the sale. the sale-deed was executed by bisheshar prasad in favour of one jhagga ram, a suit for pre-emption in respect of the sale was brought by debi saran and sarnam singh, who are now represented by the defendants of the first party, and they obtained a decree on the 27th of june, 1882. the defendants, second and third parties, are transferees from sarnam singh and his successors in interest. the plaintiffs, other than lachmi narain prasad, are the sons of the latter and grandsons of bisheshar prasad. they brought the present suit, on the allegation that one hazari sahu perpetrated a fraud on bisheshar prasad, who was of weak.....
Judgment:

Pramada Charan Banerji and Walsh, JJ.

1. This appeal arises out of a suit for possession of certain immovable property and for cancellation of a sale-deed executed in respect of it on the 28th of April, 1881. The property belonged to one Bishcshar Prasad and his son Lachmi Narain Prasad, the first plaintiff, at the date of the sale. The sale-deed was executed by Bisheshar Prasad in favour of one Jhagga Ram, A suit for pre-emption in respect of the sale was brought by Debi Saran and Sarnam Singh, who are now represented by the defendants of the first party, and they obtained a decree on the 27th of June, 1882. The defendants, second and third parties, are transferees from Sarnam Singh and his successors in interest. The plaintiffs, other than Lachmi Narain Prasad, are the sons of the latter and grandsons of Bisheshar Prasad. They brought the present suit, on the allegation that one Hazari Sahu perpetrated a fraud on Bisheshar Prasad, who was of weak intellect, and obtained from him, first a mortgage and then the sale-deed referred to above, that the sale was a fraudulent and collusive transaction, and that it was not binding on the plaintiffs. The court below has dismissed the suit on two grounds. First, that the claim is time-barred, and secondly, that there were no assignments of fraud in the plaint and a mere general allegation that the sale was fraudulent and collusive was not sufficient to disclose a cause of action. The plaintiffs have preferred this appeal. In our judgement, if the suit be deemed to be a suit to set aside an alienation of joint family property, it is clearly time-barred as against Lachmi Narain Prasad. Lachmi Narain Prasad was a minor at the date of the sale, but he attained majority in 1895. He could, therefore, have brought a suit to set aside the alienation and to recover the property till 1898. As he did not do so, his fight became extinct and the property, so far as he was concerned, became the property of the purchasers and ceased to be joint family property. The other plaintiffs, his sons, were all born subsequently to that year. It is true that it has been held that if at the date of the alienation by a member of a joint Hindu family, there is some member of that family in existence who could have questioned the alienation and did not assent to it, other persons subsequently born were entitled to question the validity of the alienation, although they did not exist at the date of it. That was held in the case to which reference is made in the Judgment of the court below, but the present case presents different features. The only person who could contest the alienation made by Bishesbar Prasad was Lachmi Narain Prasad. His right to do so became extinct in 1898. If the alienation was invalid, he could have brought a suit to set it aside some time before the expiry of 1898, and he could have recovered possession of the property. As he did not do so, his right to dispute the alienation and to recover the property sold came to an end in 1898 and the property ceased to be the property of the joint family and passed absolutely to the purchasers in that year. The minor plaintiffs who were born subsequently did not acquire any interest in the property, as it had, at the date of their birth, ceased to be joint ancestral property in which they might have acquired a right by birth. In this view the minor plaintiffs are not entitled to maintain the present suit, and the claim of Lachmi Narain Prasad, if we treat it as one to set aside the alienation, is lime-barred, It is manifest that the plaintiffs felt this difficulty and they accordingly put forward their claim on the ground of fraud. It has been repeatedly held, and this is also provided in the Code of Civil Procedure, that in a suit brought on the ground of fraud the plaintiffs arc bound to make clear and definite assignments of the alleged fraud. As pointed out by the court below, no such assignment was made in the plaint in this case. On these grounds we are of opinion that the suit was bound to fail and has been rightly dismissed. We accordingly dismiss the appeal with one set of costs to the respondents who have appeared in this appeal.


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