JOGANNATH Vs. SHRI NATH

JUDGEMENT

(1.) This is a suit of the usual character to set aside a sale of joint family property by one Mathura Prasad, from whom the plaintiffs and defendants 4 and 5 are descended, as shown in the following pedigree : It was alleged in the plaint that Jagannath, defendant 1, had induced Mathura Prasad, who was blind and deaf and a very old man, to execute a sale deed in his favour on 13 September 1910, of zamindari property belonging to the joint family, and worth Rs. 10,000, without any lawful necessity, for an inadequate consideration of Rs. 6,000, which was in great part fictitious. It was also alleged that he had cleverly induced defendants 4 and 5, Ram Pratap, one of Mathura's sons, and Bhairon Nath, one of his grandsons, to witness the sale deed by tempting and misleading them.

(2.) Defendant 1 in the written statement filed on behalf of himself and his minor sons, defendants 2 and 3, denied that the property was joint family property, and alleged that the sale deed had been executed by Mathura for the payment of antecedent debts and for the lawful necessities of the joint family by the advice of, and in consultation with, his son, Ram Pratap, and his grandson, Bhairon Nath, defendants 4 and 5. Rs. 6,000 was a fair and proper price, and none of the consideration was fictitious. The sale had not been questioned during the lifetime of Mathura, the vendor, who had survived for nine years, and the suit, which was filed on the last day before it would have become statute-barred, was barred by acquiescence. The chief reason for bringing it was that Jagtamba Prasad, plaintiff 2, had recently passed the muktarship examination and begun to carry on litigation.

(3.) None of the plaintiff's family who knew anything about the sale or the circumstances attending it were put into the box. Only three witnesses were called for the plaintiffs: of these, plaintiff 1, Sri Nath, had been living elsewhere for seven or eight years before the sale, and plaintiff 2, the aforesaid Jagtamba, was only twelve at the date of the sale. They and another witness gave evidence that the suit property was ancestral. Jagtamba also deposed that Mathura was blind and deaf for some years before the execution of the sale deed. In cross-examination he stated that Mathura's sons, Sidh Narain who, according to the plaint pedigree was 33 at the date of the sale, Ram Pratap who was 36, and his grandson Bhairon Nath, who was 26, had never made any attempt to get back the property. He himself had instituted this suit within a year of his beginning to practise as a mukhtar, but could not say why Ram Pratap and Bhairon Nath, who were the eldest members of the family, had not joined as plaintiffs as he had never asked them. Nor could he say how they were induced and tempted to witness the sale deed as alleged in the plaint. He had inquired, but had been told it was a secret. Their Lordships have set out this evidence because in their opinion it has an important bearing on the case which has not been noticed in the judgment of the High Court, which reversed the judgment of the Subordinate Judge and decreed the suit.