DHANURJAY BHADAI Vs. DHANO GANDA

JUDGEMENT

(1.) THE plaintiffs are the appellants. Plaintiffs Nos. 2 to 4 are the sons of plaintiff no. 1 and they belong to a Hindu Mitakshara Joint family governed by the Madras school of Hindu Law. The case of the plaintiffs is that the first plaintiff borrowed a sum of Rs. 300 in 1946 from late Dudorso Ganda, the father of defendants Nos. 1 and 2. Thereafter plaintiff No. 1 used to borrow small amounts occasionally from dudorso and by 1949 the loan amounted to Rs 700. For this amount of Rs. 700 the first plaintiff executed a mortgage bond (Ex A/11 dated 5-6-49 on chidni (selfliquidation)basis for a period of 7 years in respect of a portion of the ancestral family lands. The implication of this arrangement is that the mortgage amount would be fully satisfied by the mortgagee enjoying the usufruct of the land for 7 years. After the expiry of the period of 7 years, the defendants failed to return the land in spite of repeated demands made by the plaintiffs. The defendants Nos. 1 and 2 on the other hand claimed that the transaction evidenced fay Ex A/1 was not a mortgage but a sale. The suit was therefore instituted for redemption of the land. It was contended in the alternative that assuming that the transaction was a sale, it was not binding on plaintiffs as it was obtained by fraud. Defendant No. 3 was added as a party being a subsequent alienee of a portion of the suit property from defendants Nos. 1 and 2.

(2.) DEFENDANTS Nos. 1 and 2 who alone contested the suit contended that the transaction evidenced by the document Ex. A/1 was a sale but not a mortgage, that the suit property was not the ancestral property of plaintiff No. 1 but his self-acquired property and that there was legal necessity for the sale.

(3.) THE concurrent findings of the Courts below are that the alienation evidenced bu ex. A/1 was a sale but not a mortgage: that it was not for legal necessity nor were plaintiffs Nos. 2 to 4 benefited by the transaction and that the alienation was not made for payment of any antecedent debt of plaintiff No. 1 Under the Madras school of Hindu Law to which the parties belong, a coparcener can alienate his own interest in the joint family properties, but where he alienates more than his interest in the joint family properties the alienation not being one for legal necessity or lor payment by a father of an antecedent debt, the other members are entitled to have the alienation set aside to the extent of their own interest therein. The learned Munsif therefore held that the sale is not valid to the extent of 3/4th interesl of plaintiffs Nos. 2 to 4 and directed that they be put in joint possession of their 3/4th share along with defendants Nos. 1 and 2 and made it conditional on plaintiffs- Nos. 2 to 4 paying the proportionate consideration money amounting to Rs. 525 to the defendants Nos. 1 and 2. This decision of the learned munsif was upheld in appeal by the District Judge, Jeypore. Being aggrieved by this decision, the plaintiffs have preferred this Second Appeal.