JAWAHIR SINGH Vs. UDAI PARKASH

JUDGEMENT

(1.) This is an ex parte appeal from a decree of the High Court at Allahabad, dated July 3, 1922, and arises out of a suit brought by the plaintiffs on September 14, 1919 for a declaration that a sale effected by their father, Harbans Singh, in 1906, in favour of one Dalip Singh, was not justified by any such necessity as would validate the transaction against the other members of the joint family of which Harbans Singh was the head. Dalip Singh's interests have been acquired by the present appellant, Jawahir Singh. The trial Judge held that the plaintiffs had not made out a sufficient case to invalidate the sale to Dalip Singh. He was also of opinion that the plaintiffs claims were barred by the Statute of Limitation (Act IX of 1908) as Fateh Singh, their eldest brother, had attained majority long ago and had not questioned the sale. He accordingly dismissed the plaintiffs suit.

(2.) On appeal to the High Court the learned Judges overruled the plea of limitation. They relied on the decisions of their own Court and differing from the view taken by the Madras High Court (Vigneswara V/s. Bapayya (1893) I.L.R. 18 Mad. 436 and Doraisami Serumadan Nondisami Saluvan (1912) I.L.R. 38 Mad. 118) on which the Subordinate Judge had rested his judgment, they held that the conduct of Fateh Singh, the eldest brother, did not affect the undoubted rights of the plaintiffs. They also held that, save and except Rs. 1,400, the defendant appellant had failed to establish that the consideration for the transfer of the property to Dalip Singh was for any such necessity as would make the transaction valid against the sons. They accordingly set aside the order of the First Court and made a decree in favour of the plaintiffs for recovery of the property in suit, subject to their paying into Court within three months from the date of their decree, for the benefit of the defendant, Jawahir Singh, the sum of Rs. 1,400. They further directed that if payment should not be made within the prescribed period the suit should stand dismissed with costs throughout.

(3.) From this decree Jawahir Singh has appealed to His Majesty in Council, The same contentions that were urged in the High Court have been advanced before the Board. It becomes necessary, therefore, to set out some of the facts which have either been established or admitted in these proceedings.