NIRMAL SINGH Vs. SATNAM

JUDGEMENT

(1.) THIS appeal by the defendants Nirmal Singh son of Ujagar Singh and Tara Siugh son of Arud Singh is directed against the judgment and decree of the Civil Judge, Ganganagar dated 20-3-1956, decreeing the plaintiff's suit for declaration and possession.

(2.) THE dispute relates to half of one Murabba No. 23 Measuring 12% bighas situate in Chak 20 BB, Tehsii Padampur. It is common ground between the parties that this Murabba originally belonged to Melaram, deceased grandfather oi: the plaintiff Satnam and of defendant Bishan Singh, and father of defendant Daulatram, who have been impleaded as defendants Nos, 4 and 3 respectively in this suit. It is not disputed that Melaram had two sons Laxmansingh and Daulatram, and that there was a private partition between these two persons as a result of which the Murabba was divided between them in two equal shares. THE plaintiff Satnam and defendant Bishen Singh are sons of Daulatram, THE plaintiffs case is that on the 15th April, 1953, the defendants appellants managed to get a sale-deed executed in their favour with respect to Daulatram's half Murabba and got it registered by the Sub-Registrar, Padampur, on 16-4-1953. It is also disclosed in the plaint that earlier Ujagarsingh, father of defendant No. 1 Nirmalsingh and Jogendra Singh, a first cousin of defendant No. 2 Tarasingh had obtained an agreement to sell this very land in their favour on 26-2-1953, but with this we are really not concerned. THE case of the plaintiff further is that the defendants appellants had purported to purchase the land in suit for an ostensible consideration of Rs. 10,000/- in the following manner. It was mentioned in the sale-deed that a sum of Rs. 3000/- had already been paid to Daulatram and that they would pay a further sum of Rs. 3000/-on a date which was mentioned in a separate agreement executed for the purpose and the balance of Rs. 4000/- was alleged to have been paid before the Sub-Registrar. THE contention of the plaintiff is that the sale was entirely without consideration and that the sum of Rs. 3000/- alleged to have been paid prior to the execution of the sale-deed as "peshgi" or advance had not been paid at all and that the sum of Rs. 4000/which was of course paid in the presence of the Sub-Registrar had been taken back from Daulatram by some kind of subterfuge which was practised on him and that the remaining sum of Rs. 3000/- which was agreed to be paid on the occasion of 'lohdi' had not been paid at all. THE plaintiff further alleged that his father Daulatram had no need to sell the land as he had no debts to repay and that the land had been given on 'theka' and fetched an income of Rs. 600/- per annum and Daulatram was himself an earning member of the family, and, consequently, the sale was entirely without any legal necessity, and, therefore, void and inoperative against him. It was also mentioned in the plaint that Bishansingh, the other son of Daulatram and brother of the plaintiff was un-traceable having disappeared some two years prior to the institution of the suit and, therefore, he was impleaded as a defendant. On these allegations, the plaintiff who was a minor aged ten years brought this suit in forma pau- peris with his mother Mt. Prasanni as his next friend, and prayed that the sale-deed in question be cancelled and declared to be inoperative against him and that a decree for possession with respect to the land in dispute be also awarded in his favour.

(3.) TURNING next to the Bombay High Court in Nagindas v. Md. Yusuf, AIR 1922 Bom 122, the facts were that the adult co-parceners of a joint Hindu family contracted to sell to the plaintiff a house belonging to the family which was in a ruinous condition and which did not fetch any rent. When the plaintiff sued for specific performance of the, contract to sell, the minor co-parceners objected on the ground that there was 110 necessity for sale and that therefore the contract should be held to be inoperative against their interests. It was found that it was not necessary to sell the house as the family was in affluent circumstances. It was held in effect that the transaction was for the benefit of the estate inasmuch as the house was in a dilapidated condition and that the defendants had received a notice from the municipality to pull it down. It seems that the learned Judges were treating the terms "legal necessity" and "benefit of the estate" as interchangeable, and, therefore, they proceeded to hold that the benefit to the family may under certain circumstances mean a necessity for the alienation. One of the learned Judges Shah J. observed however that the expression "kutumbharthe" used in the Mitakshara must be interpreted with due regard to the conditions of modern life.