DHANRAJ RAI Vs. RAM NARESH RAI

JUDGEMENT

(1.) This is an appeal in a suit in which the plaintiffs sought to set aside on the ground of what of legal necessity two sales of joint family property made in the years 1904 and 1910 respectively. The deed of 1910 has been held by both Courts to be binding on the plaintiffs and the dispute is now confined to the deed of 1904. The two issues to be decided are: Is the suit within time? Was the alienation justified by legal necessity or antecedent debt?

(2.) The family to which the plaintiffs belong consists of four branches headed by the four sons of the common ancestor Jhingur Rai. The deed in suit was executed by the heads of all four branches. Two of the sons of Jhingur Rai, namely Jharap Rai and Dhanraj Rai, were alive and exeouted it. The other two Jadu Rai and Dhanoki Rai were dead but the deed was exeouted by the two sons of Jadu Rai and by the only son of Dhanoki Rai. The executants also admittedly included all the adult male members of the family at the time when the deed was executed. The plaintiffs are all minors Ijorn after the execution of the deed. They are respectively a grandson of Jadu Rai, two grandsons of Jharap Rai and one grandson of Dhanraj Rai. Their suit has been held to be within time because in 1904 a grandson of Jharap Rai named Sita Ram was in existence. This lad died in 1912 at the age of thirteen.

(3.) The consideration for the deed in suit was Rs. 423 and the whole of it except Rs. 25 was taken for payment of antecedent debts. A list of these debts is given in the judgments both of the Subordinate Judge and of the District Judge. The learned District Judge says that in order to establish the necessity for the sale "it is necessary to show that these prior debts were in existence and that they themselves were binding on the family," and he considers that there is no evidence apart from the recital in the deeds that such necessity existed. If the learned District Judge means by this that in order to support an alienation an antecedent debt incurred by an ancestor must have been incurred for purposes constituting legal necessity in the narrow sense his statement is clearly erroneous. With regard to the four of the items which he has marked (b), (c), (d) and (g) the learned District Judge says that "there is not even any proof on the record that the deeds are genuine." If the learned District Judge means by this that in order to prove that the sale consideration was taken in lieu of prior debts, it is legally essential that the prior deeds which were paid off out of the consideration must be produced and formally proved he is again in error. Indeed such a requirement would render proof in respect of an old transaction impossible. Deeds which have been paid off are not retained with the same care as deeds which are still in force. It is not surprising if after a lapse of nearly twenty years such deeds are not forthcoming, and it is quite open to the defendants to prove by other evidence that these debts existed and that the consideration was paid in satisfaction of them.