MAMUJI Vs. DALPAT

JUDGEMENT

(1.) RESPONDENT Dalpat is the father of respondents 2, 3 and 4 who ate minors. They form a joint Hindu family. The family possessed amongst other property field Survey 125, pot hissa 3 and some other fields. Dalpat sold his three fields to Akaji on 21st April 1919, for Rs. 3,999. Later on Akaji re-conveyed field Survey 125, pot hissa 3 to Dalpat by a sale-deed dated 4th June 1920. Thereupon the present appellant Mamuji in his capacity of a co-sharer in the survey number sued Dalpat for pre-emption and obtained a pre-emption decree against him for possession of the said field subject to payment of Rs. 2,000. That decree was dated 21st October 1921. The decree-holder got formal possession through Court on 26th March 1922. He thereafter leased the field to Gangaram and others who were obstructed in their possession by Dalpat and his sons. Hence the present suit for possession against Dalpat; liter on his sons have also been impleaded as co-defendants 2 to 4.

(2.) THE first Court found that the sale dated 21st April 1919, to Akaji in respect of all the three fields for a consideration of Rs. 3,999 could bind defendants 2 to 4 to the extent of Rs. 3,128-6 the amount paid to Nathusa Pasusa in satisfaction of an antecedent decretal debt. It accordingly granted to the plaintiff a decree for unconditional possession of the 1/4th share of Dalpat and held that defendants 2 to 4 were liable to pay Rs. 1,173-2-3 and interest on account of their share of the valid consideration, and that defendant 1, was liable for Rs. 400 on account of mesne profits, and passed a decree directing defendants 2 to 4, to pay the above sum within six months failing which they were to forfeit their 3/4th share to plaintiff. Neither party was satisfied with this decree. Plaintiff preferred an appeal and defendants 2 to 4, filed cross-objections to the Court of the District Judge, Amraoti, who, allowing the cross-objections of the defendants 2 to 4, dismissed the suit. Plaintiff has, therefore, come up in second appeal.

(3.) IT is next contended that the finding that the property was sold for its proper price arrived at in the suit for pre-emption to which Dalpat alone was a party, should be held binding as against the latter's sons, although they were not parties to it. I think the District Judge has given very sound reasons for holding that Dalpat could not represent his sons in that suit, in so far as the determination of questions, which were personal to the sons, was concerned, as their personal defence could not be set up by their father. Dalpat could not in the nature of things represent them in respect of all matters which could be urged by the sons in respect of their special plea that the sale dated 21st April 1919, to Akaji did not affect their interest. Inasmuch as the question, that the property was sold in 1919 at an undervalue and even the re-transfer in 1920 was at an undervalue, had a very material bearing on their plea that the sale to Akaji was not binding on them, the District Judge was right in holding that the decision against Dalpat in the pre-emption suit, as regards the proper value of the property, was not a bar to that question being re-agitated in the present suit by defendants 2 to 4, and his decision, that the property was sold and part of it re-purchased at an undervalue being supported by evidence proper for consideration, cannot be impeached in second appeal.