MT GAINDA KUER Vs. SRADU RAM

JUDGEMENT

(1.) This is an appeal by Mt. painda Kuer and arises out of a suit for the cancellation of a certain sale deed. The plaintiff in the litigation was Sardu Ram and the principal defendant was Mt. Gainda Kuer. There were two other defendants, Tarif Singh and Udho Ram, but they were more or less pro forma. It appears that there was a man by the name of Jugal Kishore. He had three sons, Tariff Singh, Udho Ram and Sardu Ram, in strict order of seniority. On 13 June 1927 a sale deed was executed by Tarif Singh and Udho Ram in favour of Mt. Gainda Kuer of certain house property. Tarif Singh in the sale deed purported to act on his own behalf and as the guardian of his minor brother Sardu Ram. He also called himself the karta of the family. The sale consideration was Rs. 15,800. The plaintiff Sardu Bam, within three years of his attaining majority, brought the present suit against Gainda Kuer for the cancellation of the sale deed executed by his elder brothers Tarif Singh and Udho Ram and alleged that the sale was not justified by legal necessity and therefore the plaintiff was entitled to recover back his share in the property sold. By reason of certain admissions made by the parties and by reason of certain amendments made in the plaint about which there is no controversy before us, the plaintiff's share in the property detailed at the foot of the amended plaint came to one-sixth. The trial Court went into the question of the existence and the legal necessity of the various items of the sale consideration and came to the conclusion that Rs. 1500 alone was supported by legal necessity. The defendant Gainda Kuer after obtaining the sale deed made certain improvements in the house and those improvements were assessed by the trial Court at Rs. 4200. The stamp of a mortgage deed in lieu of which principally the sale deed was executed was for Rs. 185. The position, therefore, was that the plaintiff before he could recover his share of the property sold had to pay his proportionate liability in the improvements (Rs. 4200) and in the item of sale consideration which was found to be for legal necessity (Rs. 1500) and a proportionate share of the expenses of the mortgage deed (Rs. 185). The plaintiff has to pay a sixth of all these items which comes to Rs. 955. The trial Court, therefore, on 22 April, 1937 passed the following decree: That the plaintiff's suit for possession over the property detailed at the foot of the plaint as amended, is decreed subject to the plaintiff's paying to defendant 1 or depositing in Court in the name of defendant 1 Rs. 955 up to 31 July 1937.

(2.) It also passed an appropriate order regarding costs. On appeal to the lower appellate Court the learned civil Judge confirmed the decree of the trial Court and dismissed the appeal filed by the defendant. He further directed that the plaintiff respondent should pay the sum of Rs. 955 till 8 May 1938. The defendant Mt. Gainda Kuer has come to this Court in second appeal, and Mr. Pathak has argued the case on behalf of the appellant with great ability. We have made it clear that Jugal Kishore was the father of the plaintiff Sardu Ram and of the two pro forma defendants Tarif Singh and Udho Ram and that the sale was made by these two persons on 18 June 1927. The sale consideration of Rs. 15,800 is made up of the following items:

(3.) The lower appellate Court in agreement with the trial Court has come to the conclusion that legal necessity has not been proved in respect of item 1 of the sale consideration, namely Rs. 3550. It has also held that Rs. 250 said to be paid as earnest money was not paid in order to meet the expenses of execution and registration of the sale deed and therefore that item was also not supported by legal necessity. It then proceeded to discuss the last item of the sale consideration, namely Rs. 12,000. This sum was due on the basis of a mortgage deed of Rupees 10,000 executed on 8 December 1922 by Jugal Kishore and Tarif Singh. The mortgage in its inception was a usufructuary mortgage, but it is clear that the mortgagees did not enter into possession of the mortgaged property because in the course of five years when the sale deed was executed interest was calculated upon it and the mortgage money swelled to Rupees. 12,000. We may therefore take it that the mortgage of 8 December 1922 was for all practical purposes a simple mortgage carrying interest. The mortgage consideration is made up of the following items: