CHANDRIKA SINGH Vs. BHAGWAT SINGH

JUDGEMENT

(1.) This is an appeal in a suit in which the plaintiff Bhagwat Singh suing as a minor, through his next friend Ram Autar sought to recover possession of property sold by his father Gajadhar Singh on the ground that the property was the joint family property of the plaintiff and his father and that the sale was made without legal necessity. The sale was effected on 9 December 1914 fora sum of Rs. 2,499-11-3. The Court below has held that Rs. 1,780 of the sale price was for legal necessity or antecedent debt and has given the plaintiffs a decree subject to re- payment of this amount. There were a number of defendants to the suit, Gajadhar Singh himself, the original vendees, and subsequent transferees, but the only one with whom we are now concerned is the appellant Chandrika Singh. Chandrika Singh filed a pre-emption suit on the basis of the sale-deed executed by the plaintiff's father and obtained the property under a preemption decree dated the 7 August 1916.

(2.) The two points urged in this appeal have been: 1. That the burden of proving legal necessity was wrongly placed by the Court below on the defendant; 2. That even on the findings of the Court below the sale should have been maintained.

(3.) The question of - the burden proof was the main issue argued both the Courts below. The Trial Court placed the burden on the plaintiff under the impression that the ruling in Sahu Ram Chandra V/s. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom.L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 1 26 (P.C.) required it to be so placed. The learned Additional Judge held that the Trial Judge had misunderstood the passages of the ruling on which he relied and that the real effect of the ruling was in such a case as the present clearly to place the burden of proof on the defends ant. In my opinion the learned Additional Judge was right. Where property has passed out of the hands of the family either in lieu of antecedent debt or under an execution sale in respect of a debt of the father the sons can only recover the property by showing that the debt was either illegal or immoral, but it is now so well-established as to need no citation of authority that this rule does not apply to a sale for cash. As regards the portion of the sale price which is now in dispute the sale was a sale for cash. The sum in regard to which the Court below finds that legal necessity was not established amounts to roughly Rs. 700 out of an item of Rs. 900 taken in cash at the time of registration of the deed. The ostensible object of the loan was to pay-the marriage expenses of certain members of the family. The finding of the lower Appellate Court is that there was legal necessity only for a sum of Rs. 200 and that the balance of Rs. 700 was taken without any necessity. There is now a long chain of authority for the view that when a transaction such as this is impeached by the sons it is for the creditor in the first instance to prove either legal necessity or at least such inquiry as would have satisfied a prudent man that the necessity existed. The appellant does not dispute this proposition where the defendant is the transferee. He urges that a different rule should be followed where the defendant is not the original transferee but a preemptor. The pre-emptor stands in the shoes of the original vendee. It is true that he is not himself a party to the transaction impeached, but I know of no authority, and none has been cited to me, for holding that this circumstance alone is sufficient to transfer the burden of proof from him to the, sons. I hold, therefore, that the burden of proof has been rightly laid by the Court below.