ANANTOO KALWAR Vs. RAM PRASAD TIVARI

JUDGEMENT

(1.) The essential facts to be considered may be stated thus: Two brothers, Sahdeo and Jagat, -were members of a joint Hindu family. We must take this fact as established by the findings which have been recorded, although there has been some argument to the contrary before us. Jagat died first, leaving two sons, Ram Das and Ram Prasad, of whom Ram Das was very considerably the older. Sahdeo has died since, leaving one son of the name of Ram Rup, who is a major, and another son named Lalji who was still a minor on the date of the institution of this suit. We may take it that, after the death of Jagat, there was in existence a joint Hindu family consisting of Sahdeo, his two sons Ram Rup and Lalji, and his two nephews Ram Das and Ram Prasad. On the 30 of June 1910 two members of this joint family were majors and the rest were minors. The two major members of the family, Sahdeo and Ram Das, joined in executing a deed of sale by which they conveyed certain property to the defendants in this suit for a consideration of Rs. 699. Of this they took Rs. 39-12-0 in cash, and the balance went to pay off two mortgages previously contracted in the years 1900 and 1905. The former of these mortgages had been jointly contracted by the brothers Sahdeo and Jagat. The other mortgage was contracted by Sahdeo alone, though he purported to act for himself and his two nephews, who were then minors. The present suit was brought in the year 1919 by Ram Rup: and Lalji, sons of Sahdeo, and Ram Prasad, son of Jagat, to have this sale set aside. Ram Das refused to join in the suit and was impleaded as a defendant. Two Courts, after going into the facts ai considerable length, dismissed the suit in its entirety.

(2.) A learned Judge of this Court came to the conclusion that, in view of the decision of their Lordships of the Privy Council in Sahu Bam Chandler's case, the mortgages of 1900 and 1905 could in no event be relied upon as constituting antecedent debts, for the discharge of which Sahdeo and Ram Das, acting as the sole adult members of a joint Hindu family, could alienate property belonging jointly to themselves and to the minor members of the said family. He did not think it neoessary to go further into the history of the transactions between members of this family and their creditors, and he seems to have overlooked the circumstance that he had before him a clear finding, whether right or wrong, that the sum of Rs. 39-12-0 taken in cash as part of the consideration for the sale was taken for family necessity. He has set aside the decrees of both Courts below and has decreed the claim of the plaintiffs for possession over the entire property specified at the foot of the plaint, including the share which Ram Das would have taken on a partition between himself and the other members of the joint family.

(3.) The case has been argued before us at some length; but it must be remembered that sinoe the decision of the learned Judge of this Court was passed their Lordships of the Privy Counoil have reviewed this entire question in the case of Brij Narain Bai V/s. Manxfda Prasad Bed 77 Ind. Cas. 689 : 21 A.L.J. 934 : 46 M.L.J. 23 : 6 P.L.T. 1 : 28 C. W N. 253; (1924) M.W.N. 68 : 19 L.W. 72 : 2 P.L.B. 41 : 10 O and A.L.R. 82; (1924) A.I.R. (P.C.) 50, 83 M.L.T. 457 (P.C.). On the principles laid down in that ruling it seems to us beyond question that the sons of Sabdeo are bound, to the extent of their interest in the joint family property, by Sahdeo's action in alienating the same in order to pay of antecedent debts incurred by himself. We think that Ram Das had a perfect right to join in executing this deed in order to pay off an antecedent debt incurred by his own father Jagat, although we do not think that the decision of their Lordships of the Privy Council goes the length of holding that Ram Das could for this purpose alienate the interest of his own brother in the joint family property. Their Lordships seem to us to draw a very clear distincbion between cases in which the alienation is made by the father and is being contested by his sons, and cases in which alienations made by the managing co-parcener of a joint undivided estate are being contested by ether co-parceners, not the sons of the porson making the alienation. The conclusion we come to, therefore, is that this suit should have been decreed only to the extent of the 1/2 share which the plaintiff Ram Prasad would take in-fche joint family property on a partition. Setting aside the decree the learned Judge of this Court, we give a decree in favour of the "plaintiff Ram Prasad to the extent of a 11 share in the property specified at the foot of the plaint. The parties will pay and receive costs throughout in proportion to failure and success. The costs of both hearings in this Court will include fees on the higher scale.