PANDHARINATH GOVIND VANI Vs. RAMCHANDRA BANDU VANI

JUDGEMENT

(1.) In these appeals, which are cross appeals, the facts are as follows: The plaintiffs, who are minors, sued the defendants for a declaration that the sale deed dated 11 August 1921, passed by their mother to defendant 1's father, was null and void as against them, and that the defendants be ordered to give up actual possession of the suit house and to recover Rs. 5 per month as future mesne profits. The facts are that the plaintiffs were minors under the guardianship of their mother Sitabai, who was a widow, and their mother had to maintain them by labor, and she also borrowed small amounts from one Lotu who was occupying the house in suit which belonged to the plaintiffs father. In November 1920 she passed a mortgage deed for Rs. 200 in favour of Lotu, and also passed a promissory note for Rs. 100 on 2 December, 1920, on which date the mortgage was registered. The property was thus in mortgage with Lotu, the amount due to him being Rs. 300, Rs. 200 on a mortgage and Rs. 100 on a promissory note. Subsequently Govind, the brother of the present defendant 2 and the father of the present defendant 1, seems to have desired to get this house, and within about nine months of the mortgage Sitabai sold the house to Govind for Rs. 500, out of which he paid Rs. 330 to Lotu, and the balance was paid to Sitabai. The present suit is brought by the plaintiff s, of whom plaintiff 2 is still a minor after the death of their mother, to set aside the sale on the ground that there was no legal necessity for the mother to alienate this ancestral property. The first Court held that the sale deed was null and void as against the plaintiff Section and ordered them to recover possession of the house on paying the defendants Rs. 100. On appeal by the defendants the District Judge of East Khandesh upheld the cancellation of the sale, but raised the amount payable to the defendants from Rs. 100 to Rs. 300. Against this decree the defendants have made S.A. No. 301 of 1928, and the plaintiffs have made S.A. No. 425 of 1928 as regards the amount directed to be paid by them to the defendants, and also raised a question of mesne profits.

(2.) The appeals have been heard together. The facts are fully set out in the judgment of the lower appellate Court. It would be seen that the plaintiffs mother Sitabai owed Rs. 300 to Lotu, Rs. 200 on the mortgage and Rs. 100 on the promissory note. It was all really one transaction, as is shown by the District Judge; and then subsequently in August 1921 there was a sale of the house by Sitabai to the father of defendant 1 for Rs. 500, out of which Rs. 330 were paid to Lotu and Rs. 170 to Sitabai. Lotu being in possession he was not entitled to any interest, yet he was paid Rs. 30 nominally by way of interest, but really for damages, as he was deprived of the house before the stipulated period of five years of the mortgage, of which only nine months had run. Now the view taken by the learned District Judge is this: After referring to certain evidence as to communications between Sitabai and the father of defendant 1, Govind with regard to negotiations for the sale of the house, the Judge holds that there was no necessity for the sale. Sitabai was not in need of money as she had received Rs. 136-8-0 out of the consideration of the mortgage amount only nine months before, and she entered into the bargain with Govind either because she thought it profitable or Govind prevailed upon her by charging her with a breach of promise in mortgaging the house to Lotu for the same amount which he had offered. Whatever be the motive there can be no doubt that the sale was without any justification and there was no need to raise any further sum on the house. But he held the amount of Rs. 300, which the minors were bound to pay should be paid by the plaintiffs to the defendants. The learned advocate for the appellants has referred to a number of cases decided by the Privy Council, all I think in appeals from the High Court at Allahabad, in which they reprobate the practice adopted by that Court of making arithmetical calculations in cases in which necessity is proved for the major portion of the purchase money in cases of alienations by widows.

(3.) The first of these cases to which he has referred is Srikrishan Das V/s. Nathu Ram , in which it was held that where it was proved that the purchaser gave adequate consideration and acted in good faith and ascertained that the bulk of the proceeds was to discharge family debts the question is not a matter of arithmetical calculation, but whether the sale was one which was justified by legal necessity; and a decree setting aside a sale on condition of refund to the purchaser of the amount shown to have been required for necessity is contrary to authority. There is a similar judgment of the Privy Council in the same volume Suraj Bhan Singh V/s. Sah Chain Sukh , and the same principle has been followed by the Privy Council, in Gauri Shankar V/s. Jiwan Singh and Ram Sundar Lal V/s. Lachmi Narain A.I.R. 1929 P.C. 143. The learned advocate has further referred to a case in Chimnaji Govind V/s. Dinkar Dhondev [1886] 11 Bom 320, showing that the position of a widow is different from that of a manager of a joint family and she can do what the body of coparceners can do, subject always to the condition that she acts fairly to the expectant heirs. The same principle has been followed in the case of Venkaii Shridhar V/s. Vishnu Babaji Beri [1893] 18 Bom. 534 and in Naman Mal v. Har Bhagwan . And the contention is that in the present case out of the total consideration of Rs. 500 for the sale, Rs. 300 are proved to have bean for legal necessity, and the Court should not therefore, in the face of these rulings of the Privy Council pass a decree for the setting aside of the sale on the stipulation that the owners minors should repay to the purchaser that portion of the amount which is proved to be for legal necessity.