NIAMAT RAI Vs. DIN DAYAL

JUDGEMENT

(1.) This is an appeal from a decree of the High Court at Lahore reversing the decree of the District Judge of Ferozpore in Suit No. 40 of 1915, which was brought on behalf of Din Dayal and Bansari Basil, who were minors, to recover certain lands, the property of the joint family, which had been sold by Lachhman Das, the managing member of the family, to defendants Nos. 2 to 6, under a sale- deed dated January 1, 1913. Lachhman Das was made the first defendant, and Mussamat Dhani, the mother of the minor plaintiffs, who had joined in executing the sale deed, was also impleaded as the seventh defendant. The suit was instituted by Dal Chand, the minors brother-in-law, as their next friend. He stated to the Court that he had brought it at the instance of the elder minor, who shortly afterwards attained majority, and was brought on the record as the first plaintiff and the next friend of the minor second plaintiff. The plaint alleged that the sale had been made for a nominal sum of Rs. 43,500, that Lachhman Das, the first defendant, had not received the whole of the consideration, and that the sale was made without legal necessity and was not for the benefit of the minors. The price, Rs, 43,500, was shown to have been a very favourable one, and the District Judge found that it had been paid in full and that the sale was justified by necessity, as the family debts amounted to Rs. 38,400. This was the only question argued on the appeal to the High Court, who accepting the contention of the appellants family counsel that at the time of sale the family debts were not shown to have exceeded some Rs. 22,000 or Rs. 23,000, held that the sale was made without legal necessity, and reversed the decree of the District Judge and decreed the suit without making it a condition that the plaintiffs should refund that portion of the consideration which was applied in the discharge of debts binding on the joint family.

(2.) A petition was presented for review of judgment, and in their order dismissing it the learned Judge observed that there was admittedly an arithmetical error in the body of the judgment, as the finding of the Court was that the debts binding on the family were not shown to have exceeded Rs. 30,000 (not Rs. 22,000 or Rs 23,000), so that the sale was unnecessary so far as Rs. 12,600 were concerned. As regards the omission to direct the repayment of the Rs. 30,900, the learned Judges observed that it had been admitted by the respondents counsel at the hearing of the appeal that they were not entitled to insist on this, and that in these circumstances the judgment, though bearing hardly on the petitioners, could not be remedied by review, but only by appeal.

(3.) The onus was, of course, on the defendants to show that the sale was justified, but it must be borne in mind, that in this case the first defendant, Lachhman Das, and the minor plaintiff's were the members of a joint family, who had succeeded to what is known as a joint family business-that is to say, a business carried on with joint family funds for the benefit of the joint family, that the properties of the joint family, both moveable and immoveable, including the shares of minor members of the family, are liable for debts incurred in carrying on the business, and that it is within the powers of the managing member in a proper case to sell immoveable as well as the moveable property for the purpose of discharging such debts or enabling the business to be carried on.