NARO GOPAL KULKARNI Vs. PARAGOWDA BASAGOWDA

JUDGEMENT

(1.) This suit was instituted by the plaintiff s as members of a joint Hindu family of which their father the 2nd defendant was the head to set aside a sale of certain family land being Survey No. 722 measuring 19 acres and 11 gunthas executed by the defendants in favour of defendant 1 on the 19th of September 1901 and to recover possession thereof from the 1st defendant or in the alternative for their 2/3rd share therein by partition or at least for joint possession with the defendant; 1: they alleged that the sale deed was taken from the defendant 2 by undue influence and for no consideration. The learned Judge of the trial Court held that the consideration for the deed was an antecedent debt which though barred by time was acknowledged by the registered sale-deed and further advances aggregating Rs. 1,500 which he held established. He held that even the antecedent debt would authorise an alienation by the father bindjng on the sons and he dismissed the suit with costs.

(2.) His decree was reversed on appeal the learned appellate: Judge holding that as regards the Its. 1,500 representing the further advances they were not proved to have been made and as regards the Rs. 1,500 in respect of the acknowleged time-barred debt the 2nd defendant must have been influenced unduly by the defendant 1 and could not have given his free consent to its inclusion as part of the consideration. He decreed that the plaintiffs and defendant 2 should be restored to possession of the property in suit. It may be conceded that the learned trial Judge was in error in thinking that a time-barred debt could support an alienation by a father of joint family property even against his sons : see Subramunia Aiyar v. Gopala Aiyar (1909) I.L.R. 33 Mad. 308 and as to the Rs. 1,500 representing fresh advances, it may for the purpose of argument be assumed that the appellate Court was right in holding them not proved: the question however still remains whether the time-barred debt acknowledged by the registered deed was not good consideration for the alienation of the defendant 2 s interest in the property.

(3.) Upon the findings of the lower appellate Court the plaintiffs are not, or at all events the adult plaintiff is not, bound by the deed and it may to that extent be treated as a nullity : see Uwni v. Kunchi Ama. (1890) I.L.R. 14 Mad. 28 But it is otherwise with the defendant 2 the executing party whose interest is primia facie bound by his deed. Assuming the deed was obtained from him by undue influence it is only voidable at his option. He however has not sought to avoid it. His right to file a suit for such a purpose has long since been barred by limitation.- His sons have no right to exercise his option. To hold as has been held by the lower appellate Court that he cannot have done willingly what he has explicitly purported to do in his sale-deed is to make a case which was not open to him and which he never tried to make f or himself. The lower appellate Court has not found tha no moneys were expended by defendant 1 for defendant 2 which could be acknowledged. Such a finding would be impos- sible in view of the defendant 2 s admission when called, as a witness on behalf of the plaintiffs. " I was plaintiff in Suit No. 415 of 1887. Naro Gopal (defendant 1) used to assist me with money in that suit. I passed a document for that amount." The learned Judge says that the documents show that the defendant 2 was at least reckless in matters of business and incapable of exercising ordinary prudence. That however is no justification for disregarding the terms of Section 19A of the Indian Contract Act and Article 91 of the Indian Limitation Act. The defendant 2 is, therefore, bound by la s deed and the defendant 1 is entitled to the defendant 2 s interest in the property.