MADHAVRAO GANPAT PAGIRE Vs. SHANKAR HARI BHAGVAT

JUDGEMENT

(1.) WE are concerned in this Letters Patent Appeal with the equities arising when joint family property has been alienated without legal necessity and the alienation is set aside at the suit of persons interested in the property who were not parties to the alienation.

(2.) THE facts, so far as it is necessary to mention them, are these. THEre was a joint Hindu family consisting of the plaintiffs, their father Hari and his younger brother Ahilaji. It; appears from the entries in the Record of Rights that in the year 1921 Hari mortgaged the two survey numbers, which are the subject of litigation as security for a loan taken from the Pimpalwadi Co-operative Credit Society. Hari and his brother Ahilaji had an account with this society from the year 1918. In 1922 Hari died. In 1924 the Society obtained an award decree against Ahilaji. In October, 1925, Ahilaji and the plaintiffs' mother together sold the two survey numbers for an ostensible consideration of Rs. 2,000 to Madhavrao, defendant No.1, the present appellant. It, has been found by the Courts of fact that the real consideration was Rs. 1,500 only. It has also been found that there was no legal necessity for the sale but that there was a debt to the Co-operative Credit Society amounting to Rs. 912-2-6. This debt was binding on the family and the plaintiffs' share of it would be one-half.

(3.) IN the course of the argument we have been referred to numerous cases. We propose to mention only those which have a material bearing on the circumstances of this case. (We shall not discuss, for instance, such cases as Krishn Das v. Nathu Ram (1926) L.R. 54 I.A. 79 where the alienation has been held to be good and no question of the equities on setting aside an alienation therefore arises). IN Mahomed Shumsool v. Shewukram (1874) L.R. 2 I.A. 7 property was in possession of a Hindu widow under a will of her husband by which she had merely a limited estate. She sold part of the property for Rs. 41,000 of which Rs. 14,000 were devoted to pay off a mortgage on the property. The decision of the High Court, which was affirmed by the Privy Council, was that there was no legal necessity for the sale, which therefore had to be set aside, but that the plaintiffs were only entitled to be put in possession on payment to the purchaser of the sum of Rs. 14,000 which had been used to pay off a mortgage subsisting on the estate. IN the case before us the fact that the suit property was mortgaged has not been referred to in any of the judgments. However, it was not necessary to mention it except in connection with this particular point which does not seem to have been argued until the case came before Mr. Justice N.J. Wadia). There is an extract from the Record of Rights which mentions that both the survey numbers in question were mortgaged to the -Pimpalwadi Society in 1921, and we see no reason why this evidence should not be accepted. IN that case the payment of this money to the Society by defendant No.1 had the effect of freeing the property from an encumbrance and Mahomed Shumsool v. Shewukram is an authority directly in point.