PARBHU DAYAL Vs. RAM SAHAI

JUDGEMENT

(1.) The plaintiff is the son of Ajudhia Prasad and seeks to impeach the sale of certain property, effected by the latter in favour of Ram Sahai, Musammat Mathura, the wife of Ram Sahai, and Nathu Ram, a minor relative of theirs, on the 22nd of April, 1913. The sale was effected in lieu of Rs. 1,500, out of which Rs. 238 were to be credited towards certain prior oral debts, Rs. 312 were to be credited towards a prior unregistered bond of the 25 of February, 1913, and Rs. 950 were paid before the sub-registrar.

(2.) The property sold was the ancestral property of the family to which the plaintiff and his father, Ajudhia Prasad, belong. The allegation of the plaintiff was that the sale in question was made without any legal necessity, and that it was fictitious and without consideration. The court of first instance found that out of the sum of Rs. 950 paid before the sub-registrar, Rs. 272 had been taken for legal necessity, that the previous debts specified in the sale-deed were fictitious, and that the balance of the sale consideration was not taken for any family purposes. The lower appellate court, however, held that Rs. 350 had been taken for legal necessity. A decree in favour of the plaintiff for possession of the property subject to the payment of the said amount followed.

(3.) The main point urged on behalf of the defendants appellants is that in view of the fact that Rs. 950 had actually been paid to Ajudhia Prasad, the father of the plaintiff respondent, the sale ought not to have been set aside without protecting the rights of the defendants vendees in regard to that portion of the consideration which was found not to have been taken for legal necessity, by making it a charge on the share of Ajudhia Prasad in the family property comprised in the sale. On their behalf reliance is placed on the decisions in Mahabeer Prasad V/s. Ramyad Singh (1873) 12 B.L.R. 90 and Jamna Parshad V/s. Ganga Perahad (1892) I.L.R. 19 Calc. 401, but in each of those cases the sale in question had been effected in execution of a decree, to which, as held by their Lordships of the Privy Council in Deendyal Lal V/s. Jugdeep Narain Singh (1877) I.L.R. 3 Calc. 198, different considerations were applicable, The rules governing an auction sale in execution of a decree are not necessarily identical with those applicable to a voluntary sale. The decision in Bunwari Lal V/s. Daya Shankar Misser (1909) 13 C.W.N. 815 has also been relied on, but in that case the disputed property had been purchased in the name of the person who had afterwards made the transfer, and it was held that he was bound to make good to the purchaser the representation he made that he had a power to charge the same.