PIARE LAL Vs. SRI THAKURJI

JUDGEMENT

(1.) This is an appeal by the plaintiffs arising out of a suit brought by them for the cancellation of a sale deed executed by their father on the ground that the transfer was not binding on the family.

(2.) The Court of first instance decreed the claim but on appeal the learned District Judge has dismissed it. The findings of the lower appellate Court are that the father is still alive and is really running this case. It has further found that the defendant acted in a bona fide manner when he purchased the property. It has found that the sale consideration was fully paid and was binding on the family in its entirety. It has however pointed out that out of the sale consideration Rs. 1,600 had been left in deposit with the vendee for payment to a named creditor Hira Lal on account of an antecedent mortgage debt of 9 January 1917. The learned Judge has held that subsequent to the execution of the sale-deed, the plaintiff's father served a notice on the vendee informing him that only Rs. 358 remained due to Hira Lal on his bond and requesting that the balance should be paid to the vendor direct. The vendee however did not do so but under a subsequent arrangement, which took place on 1 May 1919, the balance was utilized in payment of certain other previous debts of the vendor, though these had not been mentioned in the sale-deed. The main contention on behalf of the appellants is that if the vendee had made due inquiry he would have come to know that the entire sum of Rs. 1,600 was not due to Hira Lal and that therefore the transfer in lieu of it was not justified.

(3.) It is further urged that inasmuch as the payment of the other debts of the father was not in contemplation at the time when the sale-deed was executed they should be altogether ignored for the purpose of considering whether the transfer was or was not valid. I am unable to accede to the contention of the appellants. It is true that apparently the vendee did not make enquiries from Hira Lal before making the purchase, but when the entire sum of money was left in his hands for payment to Hira Lal, the vendee might very well accept its accuracy provisionally intending to ascertain the exact amount due, at the time of actual payment to the said creditor. When subsequently he discovered that the whole of that amount was not due to Hira Lal, he did not pay if over to the plaintiffs father, but made him agree to utilize the balance in payment of other antecedent debts of his.