PERSOTTAM PATAK Vs. SHEO SHANKER KOLAPURI

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiffs as the sons and grandsons of one Matadin for a declaration that certain property was owned and possessed by the plaintiffs and the defendants had acquired no proprietary interest in the property under a sale-deed dated the 12 of August 1895, and in the alternative for possession of the property. The plaintiffs alleged that the sale- deed was made by Matadin, that Matadin was incapable from mental incapacity of making the same, that fraud was practised on him (Matadin), that there was no consideration for the deed and that the items of antecedent debts mentioned in the deed were fictitious and had no foundation in fact. They farther submitted that even on the assumption that there was no fraud and that there was consideration for the deed, as there was no previous debt payable by Matadin and as Matadin did not execute the sale-deed as the managing member of the family or for the benefit of the family, it was not binding on them. The defendants pleaded, inter alia, that Matadin, who was the real owner of the property and the managing member of the family, executed the sale-deed to pay off debts to previous creditors and received the consideration which was adequate, valid and lawful and that they were in possession under the sale-deed. The Court of first instance found that the sale-deed was made to pay off antecedent debts, some of which were secured by mortgages and which the vendee had to pay. The sale-deed is on the record and we have looked at it. It purports to have been made not for money advanced at the time of the execution of the deed but in respect of antecedent debts. Two mortgages of prior debts are on the record. The first Court dismissed the plaintiffs suit. The plaintiffs appealed on a number of grounds. The judgment of the lower appellate Court is not very satisfactory. Dealing with the question of consideration the Court says: "Further it is urged that the sale. deed of 12 of August 1895, was fraudulent, collusive and without consideration. Moreover, it is argued that the defendants-respondents have failed to prove that the sale by Matadin was for legal necessity. Now no evidence has been shown by the pleader for the appellants in respect of his contention that the sale-deed of the 12 of August 1895, was fraudulent, collusive and without any consideration, It is indeed admitted by him that the allegations with regard to fraud, collusion and want of consideration as made in the plaint are not proved by any reliable evidence." It is pretty clear that the arguments in the lower appellate Court proceeded on the following ground, namely, that the property could only be alienated by Matadin for legal necessity and that the onus " of showing that there was legal necessity lay on the defendants, reliance being placed on the recent Pull Bench ruling in the case of Chandra Deo Singh V/s. Mata Prasad 81 A. 176 : 6 A.L.J. 263 : 1 Ind. Cas. 479. The only ground taken in the memorandum of appeal here is to this effect, namely that it was for the vendee to show that Matadin sold the property in question for legal necessity. In our judgment the lower appellate Court intended to hold, and we ourselves are quite prepared to hold, that the consideration for the sale to the defendant was antecedent debts of Matadin at least. The debts are not shown to have been ancestral debts or incurred for family necessity; but the evidence undoubtedly establishes that the sale was for at least the private antecedent debts of Matadin. If we treat the plaintiffs suit as being purely a suit for a declaratory decree to remove a cloud from their title, we think that the onus lay on the plaintiffs of showing that this sale-deed, executed as it was by their father in the year 1895, was invalid. The father of a joint Hindu family is at least prima facie the manager thereof. If we treat the suit as a suit in which the plaintiffs claim to recover possession of property in wrongful possession of the defendants, then it follows that the sale having been made in consideration of antecedent debts of Matadin, the onus lay on the plaintiffs, who are the sons and grandsons of Matadin, to show that such debts were tainted with immorality. THIS proposition is clearly established by the cases of Girdhareelal V/s. Kantoolal 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 and Suraj Bunsi Koer V/s. Sheo Persad Singh 6 I.A. 88 : 5 C. 148 : 4 C.L.R. 226. In the last mentioned case, Sir James Colvile, referring to the case of Girdhareelal V/s. Kantoolal 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56, observes at page 106 of the report: "THIS case is undoubtedly an authority for these propositions: First, that where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off antecedent debt, or under a sale in execution of a decree for the father's debts, his sons by reason of their duty to pay their father's debt cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted". In the case of Nanomi Babusain V/s. Madun Mohun 13 C. 21 : 13 I.A. 1, their Lordships of the Privy Council say: Destructive as it may be of the principle of independent co- parcenary rights in the sons, the decisions have for some time established the principle that the sons cannot sot up their rights against their father's alienation for ah antecedent debt or against his creditor's remedies for their debts if not tainted with immorality." The appeal fails and is dismissed with costs including in this Court fees on the higher scale.