BHAGWAN Vs. SACHI CHANDRA JAIN

JUDGEMENT

(1.) Yesterday Shri Lokendra Gupta was not before me. He is in this appeal respondent No. 2 and today he has argued his own case. Yesterday I heard Shri R. D. Jain, appearing for respondent No. 1, who fought valiantly a lost cause. It was Yesterday itself that I told him about Gaurishankar, AIR 1927 PC 246, star which shines on Indian Judicial firmament. The Hon'ble Supreme Court has not overruled that and has, on the other hand, reinforced that law-embodying a very fundamental principle of Hindu Law.

(2.) Today Shri J. P. Gupta who appears for the appellants, has tried to improve upon the performance of counsel of the appeal to which reference I had made in yesterday's order. In Vasudeo v. Tikaram (F.As. Nos. 25/84 and 8/91 decided on 5-8-1991), as noted yesterday in this matter, I applied Gaurishankar (supra) and ordered retrial of the suit framing a specific issue, heeding the clear, unambiguous and clarion call of Gaurishankar (supra). On factual aspects, this appeal assembles materially Vasudeo's case (supra). Only the relevant dates in regard to the crucial contention raised and decided in this appeal may be stated to outline briefly the case of parties set up in this appeal. Plaintiffs-appellants traced the title through their grandfather Gopinath and their father Chironji Lal stating that after Gopinath's death there was a partition in the year 1960 and that the suit property fell in the share of Chironjilal. Defendant-Respondent No. 1 got on 27-7-1970 a sale deed from Chironjilal fradulently which was without consideration and it was not for legal necessity or benefit of the estate. That alienation was challenged in the suit from which this appeal arises.

(3.) Reliance today of Shri J. P. Gupta on Prasad v. Govindaswami Mudaliar, (1982) 1 SCC 185, I hold appropriate in the facts and circumstances of the case, because Shri Lokendra Gupta very forcefully argued that plaintiff-appellants did not raise the plea of inadequacy of the consideration for the impugned sale. He has submitted that there was, therefore, no duty on the trial Court to strike any issue and no evidence or finding had to be recorded. He further submitted that in the written statement plea was taken that consideration was adequate. In para 63 of the report in Prasad's case (supra) the legal principle stated in Gaurishankar (supra) is buttressed holding that "there is, however, another condition which must be satisfied before the son could be held liable, i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration" (emphasis added). That holding, according to Shri Gupta, implies that burden was on the defendant in the suit in which alienation in his favour by the father is challenged. He is to plead and "satisfy the Court" that the vendor acted like a prudent man; that for good, valid and adequate consideration sale was made.