LACHMI PRASAD Vs. LACHMI NARAIN

JUDGEMENT

(1.) These two second appeals arise out of a suit brought by Lachmi Narain, minor, against his father, Munni Lal, defendant 2 and Ganpat Rai, purchaser of house property from the father, by a sale-deed, dated the 29 April 1927, for possession (by which must be meant joint possession with the father) of the property. The plaintiff alleged that the sale by his father was not binding on him on the ground that the father was insane at the time of execution of the deed. Alternatively he pleaded that the property being ancestral joint property his father could only sell it if the sale was necessary, and that the sale was unnecessary. The defence was that the father was never insane but competent to execute the deed, and that the sale was necessary. It is to be noted that the sale purported to be executed by the father both on his own account and also as guardian of the plaintiff.

(2.) Both the lower Courts have decided that the father was not incompetent on the score of his mental condition to make the transfer, and in second appeal we are bound by this finding of fact which is not impugned. The first Court found that the sale was necessary and for adequate consideration. It, therefore, dismissed the suit. In appeal the District Judge of Ghazipur set aside this finding of the first Court. It held that the sale of the house by the father was not necessary, and that of the total sale price Rs 1,350, the only consideration binding on the plaintiff was Rs. 425 due for principal and interest on a bond, dated the 24 October 1916 due by the family to one Mukund Lal. He held, however, that the defendant 1 had spent Rs. 25,000 in rebuilding the house or houses and was entitled to this sum for improvements under Section 51, Transfer of Property Act. Without giving the option to the plaintiff to recover the property by payment of the present increase in the value of the property by reason of these improvements, he assumed that the plaintiff would not or could not pay this compensation, and accordingly he, in effect, required the plaintiff to sell his interest in the property to the transferee. He held that the plaintiff's interest was the total purchase-money Rs. 1.350 minus the Rs. 425 required to pay the joint family debt existing at the time of the sale.

(3.) Against this decision there are cross appeals. The plaintiff in Appeal No. 1312 maintains that he should have been given a decree for possession of the property on payment of the Rs. 425 found to be valid consideration, and that no account should have been taken of the improvements. I will deal with this appeal first. I consider that in second appeal this Court is bound by the finding of the lower appellate Court that of the whole Rs. 1,350 only Rs. 425 was a debt binding on the family. The lower appellate Court has found that the circumstances were as follows: