SUMERA Vs. MORMUKAT

JUDGEMENT

(1.) This second appeal has arisen from a suit brought by the two minor plaintiff- respondents for setting aside a sale-deed, dated 14 August 1928, in favour of the defendant-appellants by defendants 5 and 6, who are respectively the father and mother of the plaintiffs, and for possession of the property to which that deed relates. The plaintiffs mother (defendant 6), acquires an interest, in the property in dispute under a deed of gift, dated 3 June 1920, executed by her husband, the father of the plaintiffs. (Defendant 5). The lower Courts found that the deed of gift conferred a life interest on the donee, the plaintiffs mother, and that the sale- deed, relied on by the appellants, validly conveyed only her life interest to them. As regards the remaining interest, the sale-deed has been declared to be invalid as against the plaintiffs, who will be entitled to recover possession from the appellants after their mother's death. The defendants assail the decree of the lower Courts, claiming an absolute interest in the property in dispute under the sale-deed. The trial Court had held that the sale was made by the plaintiff's parents for legal necessity, as money was required for the family business, which consisted of a grocery shop, but that it did not affect the rights of the parties. The lower appellate Court has recorded no finding on this part of the case.

(2.) The property in dispute is a house which belonged to the ancestors of the plaintiffs father, so that, if there had been nothing else in the case, the plaintiffs would have acquired an interest by birth and held it as a member of a joint Hindu family with their father. But on 3 June 1920, when the father executed the deed of gift in favour of his wife, he was the sole owner of the house as none of his sons were in existence till then. Plaintiff 1 was born in 1922, and plaintiff 2 in 1924. On the date of suit they were respectively 9 and 7 years of age. The sale-deed obtained by the appellants on 14 August 1928 was executed by both the parents of the plaintiffs obviously because the mother had obtained an interest in certain property, including the house in dispute, under the deed of gift, and as the father was the original owner thereof and was probably believed to have some interest in spite of the deed of gift. The appellants obtained possession of the property purchased by them; but about three years after the sale-deed the minor sons of the vendors instituted the suit which has given rise to this appeal, challenging the validity of the alienation made by their parents. Their case, as set out in the plaint, is that the house in dispute is part of the ancestral property belonging to the plaintiffs and their father, that the deed of gift executed by the latter in favour of the plaintiffs mother was fictitious and conveyed no ttle to the donee and that the sale-deed executed by the parents of the plaintiffs on 14 August 1926, was void, there being no legal necessity for the alienation. It-was pleaded by the appellants in defence that the gift in question was genuine and given effect to, under which the donee acquired an absolute interest in the property conveyed thereby. It was pleaded in the alternative that there was legal necessity for the sale and that, assuming the deed was fictitious, the sale is binding on the plaintiffs. Both the lower Courts have found that the deed of gift represents a genuine transaction intended to take effect and that the donee acquired thereunder the title which it purports to convey. This finding has not Tbeen. challenged by either side in this Court. In view of the finding of the trial Court that there was legal necessity for the-sale, it, is no longer to the interest of the plaintiff to maintain that the gift was fictitious, because if that finding stands and the deed be accepted to be fictitious, the sale-deed which was executed by the plaintiffs father must be upheld. If the deed of gift be assumed to be fictitious, the property remained with the father; and though his sons took an interest by birth, a transfer by him for necessary purposes, as found by the trial Court, is valid. As however the lower appellate Court has recorded no finding on the question of legal necessity and as both the Courts have found that the gift was genuine, I do not think it will be right to pin down the plaintiffs to their case in the plaint that the gift was fictitious. I Think this appeal ought to be disposed of on the assumption that the gift conveyed such title as it purports to transfer.

(3.) The principal question in the case is what right the deed of gift conferred upon the plaintiffs mother. If she became the absolute owner under that deed the sale in favour of the appellants cannot be challenged by the plaintiffs, who could acquire no interest-by birth in the property acquired by their mother from their father before they were born. The father was the sole owner before the plaintiffs birth and could transfer any part of the family property to anyone by sale or gift. The sons could acquire an interest by birth only in such property as remained in the family at the time of their birth.