SHANKAR NARAYAN MORE Vs. TUKARAM RANU BAGAL

JUDGEMENT

(1.) The plaintiff, a minor, sued to recover possession of the plaint property after cancelling the sale-deed of July 81, 1926, or, in the alternative, for possession of his half share of the property on declaring the suit transaction not binding on him, alleging that defendant No. 2, who is his father, passed the sale-deed in suit to defendant No. 1 for Rs. 2,000, without any legal necessity, and being forced to do so by misrepresentation. The other defendants are tenants of defendant No. 1. The first Court, the Joint Subordinate Judge of Barsi, held that though it was not shown that the property was sold for an illegal or immoral purpose, there was not shown to be any legal necessity for the sale, and he held that the sale-deed was not binding on the share of the plaintiff, who was entitled to possession of his share of the suit land by partition, together with mesne profits and costs. On appeal, the District Judge of Sholapur set aside the decree and dismissed the plaintiff's suit with costs. The plaintiff appeals.

(2.) In this case defendant No. 2 is the father of the plaintiff, and he has passed three documents, Exhibit 46, a mortgage dated June 6, 1919, for Rs. 500, Exhibit 48, a promissory note dated December 5, 1921, for Rs. 421, and the sale-deed, Exhibit 49 which was passed on July 81,1925, for Rs. 2,000 to pay off these two documents together with some cash paid before the Sub-Registrar. Both Courts have held that it is not proved that these debts were incurred for any illegal or immoral purpose, and also that it is not proved that there was any legal necessity for them. But the first Court has relied on Sahu Ram Chandra V/s. Bhup Singh, s.c. 19 Bom. L.R. 498. That is a case which has been modified in the subsequent Privy Council case of Brij Narain V/s. Mangla Prasad, s.c. I.L.R. 46 All. 95, 96. P.C. The learned Diatriet Judge has relied on that ease, and has pointed out that in a case where, as here, the alienations ate by a father the question of legal necessity does not arise. The season is bound by the alienations made by the father in satisfaction of antecedent debts incurred by himself, provided feat they were not for illegal or immotal purposes. In Brij Narain's case the Privy Council lay down a number of propositions, which will be found at p. 104 of this report (48 All.). The only difficulty that arises in the present case is that one of the antecedent debts in this case, the first, is a mortgage, and under the third proposition in Brij Narain's case a mortgage will not bind the estate unless it is to discharge an antecedent debt. As a matter of fact, in this mortgage it is mentioned that the greater part of the consideration was to pay previous debts, but that is a point which the Courts below have not gone into, but the transaction which the plaintiff seeks to avoid, although in so doing he may Challenge the other transactions, is the sale-deed. The sale-deed is passed to pay off the antecedent debts, viz., those created by the mortgage, Exhibit 46, and the promissory note Exhibit 48. In relation, therefore, to the sale-deed by which the father alienated the land in suit, that mortgage Will, under the ruling in Brij Narain's case, be regarded as an antecedent debt, as the learned Ditrict Judge has pointed out. That that is a correct view of the principle laid down by the Privy Council in Brij Narain's case is clear from the case quoted by the learned District Judge, (sic)

(3.) In these circumstances, the view taken by the learned District Judge appears to be correct. In justice to the first Court it may (sic) been brought to its notice, The appeal is dismissed with costs.