RAM PRASAD TIWARI Vs. ANANTU KALWAR

JUDGEMENT

(1.) The essential facts to be considered may be stated thus. Two brothers, Sahadeo 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. Sahadeo 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 Sahadeo, 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, Sahadeo 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 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 Sahadeo and Jagat. The other mortgage was contracted by Sahadeo alone, though he purported to act for himself and his two nephews, who were then minors.

(2.) The present suit was brought in the year 1919 by Ram Rup and Lalji, sons of Sahadeo, 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 at considerable length, dismissed the suit in its entirety.

(3.) 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 Ram Chandra's case (1917) I.L.R. 39 All. 437, the mortgages of 1900 and 1905 could, in no event, be relied upon as constituting antecedent debts, for the discharge of which Sahadeo 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 necessary 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 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.