MASIT-ULLAH Vs. LALA DAMODAR PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff Damodar Prasad on September 19, 1918, to set aside an alienation effected by his father Janki Prasad on September 17, 1906. Damodar Prasad the plaintiff is a member of a Hindu family subject to the Mitakshara law, and the allegations on which he seeks to have the sale by his father set aside are, in the common form, alleged immorality of the father, jointness of the family, and the absence of necessity for the sale, which is sought to be set aside. The plaintiff made his father Janki Prasad a defendant in the suit. Originally, he was defendant No. 6, but, after the addition of the representatives of some of the vendees, who had died in the meantime, Janki Prasad was made defendant No, 11.

(2.) In his plaint the plaintiff prayed to be put in proprietary possession of the property in suit and for mesne profits. In their answer to the plaintiff's claim the defendants denied that the property was ancestral and they alleged that it was sold to them for Rs. 18,400, which was applied for family purposes, and that the alienation was valid in law and binding on the plaintiff.

(3.) The suit came for trial before the Subordinate Judge of Moradabad who, on February 25, 1920, held inier alia that the plaintiff had failed to prove absolutely the allegations made by him against his father of immorality; he held also that it had been established that out of the Rs. 18,400 over Rs. 16,000 had been applied to the discharge of ancestral debts, the payment of which was binding on the joint family of which the plaintiff was a member. He held further that Janki Prasad, the grandson of Jawahir Lal who had contracted the debts that had been discharged out of the sale proceeds, was "competent to transfer the family property to discharge his deceased grandfather's debts which were not proved in the case to have been taken for any immoral purposes." He also held that Damodar Prasad, the great-grandson of Jawahir Lal, was burdened with the same obligation that lay upon Janki Prasad, But the Subordinate Judge found that, out of the consideration of Bs. 18,400 a sum of Rs. 2,000 odd was not properly accounted for, and that in respect of that amount the plaintiff was under no obligation. He found also that Janki Prasad, on July 9, 1907, transferred his half share in the family property to the plaintiff his son for a consideration of Rs. 40,000 and that although the plaintiff was a minor at the time of this transfer, on attaining majority he ratified the transaction. The Subordinate Judge considered that this transfer had the effect of "disputing" the joint family and that, after this transfer of 1907, the plaintiff and Janki Prasad could not be taken to be "members of a joint Hindu family owning joint property in the true sense of the word in Hindu law." He accordingly held that the sale deed impugned in the case could not be set aside as the major portion of the consideration was used in the discharge of legal debts. The only relief the plaintiff was entitled to was to have "a proportionate property released from the sale deed and only to the extent of his share," He dismissed the claim for mesne profits considering that the claim was unduly delayed. He accordingly made a decree in the following terms :- The plaintiff's claim is decreed for recovery of certain specifled share in the property in suit.