RAMNATH SINGH Vs. DEORAJ SINGH

JUDGEMENT

(1.) THIS is, an appeal on behalf of the plaintiff, Ramnath Singh, from a judgment of the Additional Subordinate Judge, Chapra, dated the 18th of February, 1950. The suit was presented by the plaintiff, Ramnath Singh, through his guardian Beaspati Kuer for a declaration that three sale-deeds executed by his father Rambichar Singh on the 18th of March, 1946, in favour of defendants 1, 2 and 3, were not for legal necessity and Were void. The plaintiff also prayed for recovery of possession of the land covered by the three sale-deeds and for mesne profits. The case of the plaintiff was that his father Rambichar Singh was of unsound mind at the time the sale-deeds were executed. It was also contended on plaintiff's behalf that the land which was sold belonged to his maternal grandfather; Ganga Singh, and there was a deed of gift executed by Ganga Singh in favour of the minor plaintiff with regard to this land on the 12th of March, 1946. The land in dispute is 6 bighas 7 katnas 2 dhurs in area, and according to the plaintiff there was no legal necessity for sale and no benefit accrued to him by virtue of the sale-deeds executed in favour of defendants 1, 2 and 3. The suit was contested by defendants 1, 2 and 3 on the ground that the transactions of sale were for legal necessity and were for the benefit of the estate of the minor plaintiff. Both the lower courts have reached the conclusion that these three transactions of sale in favour of defendants 1, 2 and 3 were legally valid and there was legal necessity for the sale and there was benefit to the estate of the minor plaintiff. The lower courts also found that the father of the plaintiff. Rambichar Singh was not of unsound mind on the date when these three sale-deeds were executed. On the basis of these findings the lower courts dismissed the suit of the plaintiffs.

(2.) THE main argument addressed on behalf of the appellant is that the lower appellate court has misdirected itself in law in reaching the finding that there was legal necessity for the sale and there was benefit to the estate of the minor plaintiff. It appears that the three sale-deeds were executed by Rambichar Singh on the 18th of March, 1946. Exhibit A was executed in favour of Deoraj Singh with regard to 4 bighas and odd for a sum of Rs. 2,000/-, exhibit A/1 was executed in favour of Radha Raman Singh for a sum of Rs. 600/- with regard to 15 katnas and odd; and exhibit A/2 was executed in favour of Dwarka Raut for a sum of Rs. 400/- with regard to 13 katnas and odd. It has been found by the lower appellate court that the land was located at Rampur, about 22 miles from village Barwan where the minor plaintiff resided. It has been observed by the lower appellate court that it was inconvenient for the minor plaintiff to look after the Rampur lands and, therefore, it was beneficial to the estate to dispose of the lands at Rampur and to purchase instead at village Barwan. THEre was also evidence in the case that after the properties at Ranipur were sold, the father of the plaintiff obtained 1 bigha and 4 dhurs of land in zarpeshgi in village Barwan by two documents exhibits C/2 and C/3. THE amount mentioned in these documents is Rs. 1,700/- and the zarpeshgi is said to be for a period of three years, namely, 1354, 1355 and 1356 Fasli. It is also alleged that out of the balance of Rs. 1,300/- a sum of Rs. 300/- was paid to discharge two debts incurred by Ganga Singh by two zarpeshgi deeds, exhibits C and C/l. It is also said that a sum of Rs. 500/- was paid for the sradh expenditure of Ganga Singh. THEre is nothing in the evidence to suggest what was done with regard to the balance of Rs. 500/-. On behalf of the appellant it was contended that the transactions of sale were not for legal necessity and there was no pressure on the estate of the minor which necessitated such a sale. It was also argued that there was no benefit to the estate of the minor, because no property was actually purchased in village Barwan where the minor resided, but, on the contrary, the plaintiff's father only took a small area of 1 bigha 4 dhurs in zarpeshgi for a period of three years. On behalf of the respondents Mr. B.C. De put forward the argument that it was not the duty of the purchasers' to see to the application of the sale proceeds and it was sufficient if a bona fide enquiry was made by the purchasers. THEre is however finding of the lower appellate court that there was a bona fide enquiry made by the purchasers with regard to the necessity for the sale or with regard to the benefit which accrued to the minor's estate. In the circumstances presented in this case we are of the opinion that the transactions of sale entered into by the plaintiff's father on the 18th of March, 1946, covered by the three sale-deeds, exhibits A, A/1 and A/2, were not for the benefit of the minor, nor were these transactions entered into for legal necessity, except with regard to the amount of Rs. 800/-. THEre is evidence in this case which has been accepted by the lower courts that a sum of Rs. 500/- was spent for the sradh expenditure of Ganga Singh and a sum of Rs. 300/- was paid for the redemption of two zarepshgi deeds exhibits C and C/l, which related to a portion of the land gifted by Ganga Singh to the minor plaintiff by the document exhibit D, dated the 12th of March, 1946. We consider that in this case the principle of the decision of the Full Bench of the Bombay High Court in Hemraj Dattubuva v. Nathu Ramu Mahajan, AIR 1935 Bom 295 (A) is applicable and the transactions of sale must be held to be void on the ground that they are not supported either by legal necessity or by benefit to the minor's estate. If that is the correct legal position, the plain-tiff is entitled to a decree declaring that the three sale-deeds executed by the plaintiff's father in' favour of defendants 1, 2 and 3 are void on the ground of absence of legal necessity and the absence of benefit to the estate and should be set aside. THE plaintiff is also entitled to a decree for recovery of possession of the property covered by the three sale-deeds, but in view of circumstance that a portion of the consideration namely, a sum of Rs. 800/- has found to have been incurred for legal necessity, an equity arises in favour of the purchasers and the plaintiff can get only a conditional decree for recovery of possession of the land in dispute. In case of this description it is clear that the plaintiff is liable in equity to make good to the purchasers the portion of the consideration by which he is benefited and the decree to be passed in favour of the plaintiff should be a conditional decree for recovery of possession of the disputed land, on condition that the plaintiff should pay to the purchasers the amount of consideration which has been found to be either for the benefit of the plaintiff's estate or for the purpose of legal necessity. That is the principle laid down in Modhbo Dyal Singh v. Kolbur Singh 9 Suth WR 511 (B) which is a judgment of Sir Barnes Peacock, C. J. and four other learned Judges. It was held in that case that under the Mitakshara law, a son was entitled to recover from a purchaser from his father ancestral property improperly sold by his father, but if there was proof that the son got the benefit of his share of the purchase money, the son must refund his share of the purchase money before he can recover his share of the property sold. A similar principle has been laid down in Bachan Singh v. Kamta Prasad, ILR 32 All 392 (C) where a conditional decree was passed in similar circumstances. In another case, Limbaji Ravji Hajare v. Rahi Ravji Hajare, ILR 49 Bom 576: (AIR 1925 Bom 499) (D), it was held by Sir Norman Macleod, C. J. and Grump, J. that in setting aside a sale made on behalf of a minor by an unauthorised person, the court may under Section 41 of the Specific Relief Act make it a condition that the minor should refund the amount by which his estate and himself were benefited. In view of the principle laid down in these cases, we are of the opinion that the proper decree to be passed in this-case would be to grant a decree for recovery of possession in respect of all the properties in dispute, namely, all the properties conveyed by the three sale-deeds, on condition that the plaintiff pays a sum of Rs. 800/- to Deo Raj Singh, who was the purchaser under the document exhibit, A. It appears that out of the consideration of Rs. 2,000/- paid by Deoraj Singh, a sum of Rs. 800/- was paid for meeting legal necessities. THE amount of Rs. 800/- is, therefore, to be paid to Deoraj Singh, defendant No. 1, who is the purchaser under the sale deed, exhibit A. THE other purchasers, namely, Radha Raman Singh and Dwarka Raut, are not to be paid any amount by way of restitution with regard to the properties which they had purchased. With regard to these two defendants the plaintiff will get an unconditional decree for recovery of possession of the properties they had purchased by virtue of exhibits A/1 and A/2. We accordingly order that the plaintiff should be granted a decree in the above terms. THE appeal is, therefore, allowed and the decree of the lower appellate court is set aside. THE parties will bear their own costs throughout.