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Kunwar Lallajee Vs. Ram Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1936All77; 160Ind.Cas.623
AppellantKunwar Lallajee
RespondentRam Dayal and ors.
Excerpt:
- - ganga prasad bad no separate share in this property......sarju prasad. defendant 7 who is a subsequent transferee of the mortgaged property contended that ganga prasad, one of the brothers of the mortgagors, did not join in the execution of the mortgage and therefore his l/5th share in the mortgaged property was not liable for sale under the mortgage-deed. bisheshar dial who was the father of the mortgagors died leaving five sons, the four mortgagors and one ganga prasad. before the mortgage ganga prasad was adopted by kanhaiya lal. the trial court allowed the objection of defendant 7 and gave a decree for the sale of only 4/5th share. on appeal the learned district judge, mainpuri, reversed the finding of the trial court and allowed the appeal decreeing the sale of the whole of the mortgaged property. against his decision is this appeal.2......
Judgment:

Ganga Nath, J.

1. This is a defendant's appeal and arises out of a suit brought against him by the plaintiff-respondent to recover money on foot of a hypothecation bond by sale of the mortgaged property. The mortgage-deed had been executed in his favour by Shiam Prasad and by Mahabir Prasad on his behalf and on behalf of his two minor brothers Suraj Prasad and Sarju Prasad. Defendant 7 who is a subsequent transferee of the mortgaged property contended that Ganga Prasad, one of the brothers of the mortgagors, did not join in the execution of the mortgage and therefore his l/5th share in the mortgaged property was not liable for sale under the mortgage-deed. Bisheshar Dial who was the father of the mortgagors died leaving five sons, the four mortgagors and one Ganga Prasad. Before the mortgage Ganga Prasad was adopted by Kanhaiya Lal. The trial Court allowed the objection of defendant 7 and gave a decree for the sale of only 4/5th share. On appeal the learned District Judge, Mainpuri, reversed the finding of the trial Court and allowed the appeal decreeing the sale of the whole of the mortgaged property. Against his decision is this appeal.

2. The point for consideration is whether Ganga Prasad after his adoption had any share or interest in the property in suit. As already stated, before the mortgage he had been adopted by Kanhaiya Lal. The learned Judge has found that the property in dispute was the ancestral joint family property of the mortgagors as it had been in the family since the time of Khiali Ram, the mortgagors' grandfather. It has also been found by the lower Court that Ganga Prasad was a member of the joint family till the time of his adoption. Ganga Prasad bad no separate share in this property. The property belonged to the whole co-parcenary family as a unit 'and not to any individual co-parcener and so Ganga Prasad had no separate share. He could not have transferred any part of the property. On adoption the adopted person loses all rights and interests in the property of his natural father. Similarly Ganga Prasad lost all his interest in the co-parcenary property on his adoption. The lower Court's decision is correct. There is no force in the appeal. It is therefore ordered that it be dismissed with costs. Permission to file a Letters Patent Appeal is rejected.


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