HIRALAL DAYARAM PATIL Vs. BHIKARI SAMPAT SHINDE

JUDGEMENT

(1.) This is an appeal by defendants Nos. 1 to 8 against the decree passed by the Civil Judge, Senior Division, Jalgaon, against them for Rs. 10,500 with future interest and costs.

(2.) THE facts admitted before us are as follows : One Sampat Ganpat Shinde was the father of plaintiffs Nos. 1 to 8 and 5 to 11, and husband of plaintiffs Nos. 4 and 12. One Daulat Shimpi obtained two decrees against Sampat, one of them was a mortgage decree for Rs. 10,000 (exh. 45) and the other one was a money decree for Rs. 7,000 (exh. 46). Sampat agreed not to dispose of his properties until the two decrees were satisfied. On July 12, 1949 Sampat sold S. Nos. 74 and 84/1 at Kekatnimbhore to defendants Nos. 1 and 2 minors by their guardian their natural father -defendant No. 3. The sale -deed is at exh. 39. The consideration for the sale -deed was Rs. 24,912, which was made up by the amounts due under the said two decrees and some other consideration. After purchase defendants Nos. 1 and 2 paid the amount due under the mortgage -decree, but they did not pay the amount due under the money -decree (exh. 46) mentioned above. Daulat Shimpi, therefore, filed execution proceedings - Darkhast No. 48 of 1949 -to execute the money decree mentioned above. He sought execution by sale of S. No. 90 measuring 11 acres and 36 gunthas. The amount sought to be recovered was Rs. 8,815, On June 27,1959 Sampat died and the present plaintiffs are his heirs. The plaintiffs in order to satisfy the money decree by compromise sold 8 acres and 36 gunthas out of S. No. 90 and thus fully satisfied the said money -decree. Necessary sanction by the Court for this sale was obtained. The order in that respect is at exh. 74. The sale -deed was executed on November 21,1961, which is at exh. 49, and on November 27,1961 the darkhast was disposed of showing the said money -decree as fully satisfied. We may mention here that defendant No. 4 is a subsequent transferee in respect of S. No. 74 from defendants Nos. 1 and 2, minors by their guardian their natural father defendant No. 3. Defendant No. 4 is defendant No. 3's wife's sister. On January 23, 1962 the plaintiffs filed the present suit to recover Rs. 10,500 with future interest at 6 per cent, per annum and costs from the defendants; they prayed for a charge on the lands S. No. 74 and 84/1 at Kekatnimbhore, The substance of the allegations in the plaint is that defendants Nos. 1 and 2 failed to satisfy the money -decree, exh. 46, although they agreed to do so under the terms of the sale -deed exh. 89. The plaintiffs, therefore, had to spend Rs. 10,500, which they seek to recover by the present suit. The plaintiffs allege in the plaint that the transaction of purchase of the land by exh. 39 was for the benefit of the family of the defendants, the family actually received benefit thereof and that is why defendant No. 3 who was the manager of the family is also liable. Defendant No. 4, as stated above, was joined as the subsequent transferee.

(3.) WE may mention here that the point, viz. the sale -deed, exh. 39, imposes personal liability on the minors, hence the plaintiffs are not entitled to recover anything on account of the minors' failure to discharge such liability, was not taken in the trial Court. All the same, we have allowed Mr. Shrikhande to argue that point, since no further facts are necessary and it is a point of law which can be argued on the facts which are already on record.