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Chiranji Lal and ors. Vs. Ganga Ram and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All187(2); 42Ind.Cas.670
AppellantChiranji Lal and ors.
RespondentGanga Ram and anr.
Excerpt:
.....executed which would enable the vendor, the father of the plaintiffs, to remain in possession of the mortgaged shop and enjoy the usufruct, can necessarily be deemed to be a benefit to the family. of course the consideration for the sale having failed, the mortgage would be ineffectual and the mortgagors would be entitled to take back the mortgaged property if they have delivered possession of it. we think this would be impossible if the house was to be left in the condition in which it originally was, and, therefore, the best course would be to decree to the plaintiffs possession of the house with the improvements, as it stands, and to direct that the parties should bear their own costs of the whole litigation throughout......of possession of the property comprised in the sale, on the ground that the property was joint family property and that there was no family necessity for selling it. the court of first instance dismissed the claim. the lower appellate court reversed the decree of that court and made a decree in the plaintiffs' favour but provided in the decree that any improvements and additional constructions which the defendants purchasers may have made in respect of the property sold, may be removed by them within a time fixed, provided that the house was left in the same condition in which it was before the improvements were made. upon appeal to this court, the decree of the court below was maintained by a learned judge. hence this appeal under the letters patent. the main contention on behalf of.....
Judgment:

1. Gulzari Lal,the father of the plaintiffs-respondents, having executed a sale-deed in favour of Chiranji Lal, Gopal Das, Sheo Charan Lal and Mohan Lal, appellants, the suit out of which this appeal has arisen was brought by the plaintiffs for recovery of possession of the property comprised in the sale, on the ground that the property was joint family property and that there was no family necessity for selling it. The Court of first instance dismissed the claim. The lower Appellate Court reversed the decree of that Court and made a decree in the plaintiffs' favour but provided in the decree that any improvements and additional constructions which the defendants purchasers may have made in respect of the property sold, may be removed by them within a time fixed, provided that the house was left in the same condition in which it was before the improvements were made. Upon appeal to this Court, the decree of the Court below was maintained by a learned Judge. Hence this appeal under the Letters Patent. The main contention on behalf of the appellants is that the family has benefited by the sale, inasmuch as in lieu of the amount of consideration for the sale a mortgage has been granted by the defendants to Galzari Lal, the father of the plaintiffs, that the house sold was almost useless to the family, and that this mortgage, which is a usufructuary mortgage of a shop, is beneficial to the family. It appears that the sale was for a consideration of Rs. 200, but instead of the amount of the consideration being paid down, the vendees executed a mortgage-deed of a shop under which the vendor was to take possession. We do not think that the mere fact of a mortgage having been executed which would enable the vendor, the father of the plaintiffs, to remain in possession of the mortgaged shop and enjoy the usufruct, can necessarily be deemed to be a benefit to the family. We find that the mortgage was made not only on behalf of adult persons but also on behalf of two minors. There may be considerable, difficulty hereafter as to the validity of this mortgage, and in all probability disputes may be raised by the minors on attaining majority. 80 that instead of the mortgage being beneficial to the family, it might prove a source of loss and trouble to them. If the father of the plaintiffs had purchased for the family property of equal value with the proceeds of the property sold, that might have been a different matter. But that is not the case here. The lower Appellate Court was, therefore, in our opinion, right in holding that the mortgage, which was the consideration for the sale, was not beneficial to the joint family, and that, therefore, the sale was without family necessity and was void as against the plaintiffs. Of course the consideration for the sale having failed, the mortgage would be ineffectual and the mortgagors would be entitled to take back the mortgaged property if they have delivered possession of it. In the decree of the learned Judge of the lower Appellate Court it was provided, as we have said above, that if any constructions had been made in the house sold, the defendants would be at liberty to remove the materials put by them in the house. We think this would be impossible if the house was to be left in the condition in which it originally was, and, therefore, the best course would be to decree to the plaintiffs possession of the house with the improvements, as it stands, and to direct that the parties should bear their own costs of the whole litigation throughout. We accordingly vary the decree of the lower Appellate Court to this extent, that we strike out that portion of the decree which directs the appellants to remove the improvements which have been made and the materials which they have put in the house. In other respects, save as to costs, we affirm the decree of the Court below. With regard to the costs we direct that the parties do abide their own costs in all Courts.


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