UMA CHARAN CHAKRAVARTI Vs. GUIRAM BAG

JUDGEMENT

(1.) This appeal is preferred by the defendant. He bought a share in a holding, which belonged to two brothers, Soshi Bhusan Bag and Guiram Bag, by a conveyance executed on Sraban 17, 1316. Soshi was an adult at the time, and he does not deny execution. For Guiram the conveyance was executed by his mother, his natural guardian. Guiram is the plaintiff and his case is that in Sraban of 1316 he was an adult, and his first prayer was for a declaration that the conveyance did not affect his interest, and for an injunction restraining the defendant from disturbing his possession. In the alternative he asked for the cancellation of the document on the grounds that there was no necessity for the sale and that the sale was not for his benefit.

(2.) The first Court found that the plaintiff was an adult in Sraban 1316 and decreed the suit in the terms of the first prayer. On appeal the learned Judge came to a different conclusion as to the plaintiff's age and then proceeded to deal with the question of necessity. He held that the sale was not necessary and that the plaintiff was benefited to the extent of Rs. 46-0-6 only, and he accordingly do-creed the suit on condition that plaintiff should pay that sum to the defendant within one month.

(3.) The decision as to the plaintiff's ago must be accepted as final, and the question therefore is whether the plaintiff is entitled to have the document set aside. The lower Courts hold that the sale was not necessary, and that the circumstances under which it was made are suspicious. It appears however that there was a decree for 92 rupees against plaintiff and his brother and that the property had been put up to sale in execution and bought for 132 rupees. It is also in evidence that an application was made for rateable distribution. The learned Judge is right in refusing to go behind the decree. He thinks however that the elder brother was acting treacherously and that some thing less might have been sold. The idea of treachery seems to be purely conjectural. As for the possibility of selling less, a share in a holding cannot be divided at the will of the seller alone, so that it should yield just the required sum and no more. Moreover there was the matter of plaintiff's maintenance; he was living with his uncle but there is nothing to show that a sum of cash would not be for his benefit. It is true that the surplus may not have been used to his benefit, but that is a matter between him and his mother.