GOVIND JAGESHWAR Vs. KASHIRAO

JUDGEMENT

(1.) THIS judgment will also dispose of Second Appeal No. 186-B of 1926. One Goma mortgaged his two fields, Nos. 25 and 15/2, to one Jageshwar in 1906. Jageshwar filed Suit No. 153 of 1913, but he died before obtaining a final decree for foreclosure. He left behind him the present plaintiff, Govind, whom he had adopted as a son to himself. He was brought on record and the final decree was passed in his name on 29th September 1916, Ex. P-10. Plaintiff was then a minor and his natural father, Diwaker Nagorao, acted as his guardian and managed his affairs. Consequently for the purposes of that suit the said Diwaker Nagorao figured as Govind's next friend. Jageshwar had left a will dated 11th October 1915 (Ex. P-1) whereby he bequeathed an 8-annns share in the estate to his adopted son and the remainder was distributed by him amongst several persons of whom Diwaker Nagorao got two shares. Thus, although the final decree stood in the plaintiff's name alone, other persons were interested in the same as co-legatees with him, his individual share therein being only eight annas. Diwaker Nagorao purporting to act as guardian of Govind and for self, executed two sale-deeds, one dated 29th April 1918 Ex. P-II and the other dated 29th June 1918 Ex. P-12 in favour of Bhagwanji Thakare for Rs. 1,350 and Rs. 400 in respect of Survey Nos. 15/2 and 25 respectively. These sale-deeds recite that the consideration was required to satisfy an antecedent debt due by Jageshwar to one Krishnaji Tarar's, legal representative one Lahnu. The purchaser was put in possession of the property purchased by him. The plaintiff alleging that the sales were without legal necessity, instituted the present suit on 3rd May 1924 for setting aside the alienations and recovering possession as 'owner thereof.

(2.) THE defence was that the sales were supported by legal necessity inasmuch as property was sold to pay off debt due to one Krishnaji. Defendants also pleaded bona fide enquiry. Their further plea was that Diwaker Nagorao was appointed a guardian and manager of plaintiff's estate by the terms of Jageshwar's will and, therefore, his acts were binding on the latter. It was also pleaded that, under the terms of the will, Jageshwar had bequeathed 2-annasshare in the money-lending business and fields acquired by that business after the date of the will, and that, as the fields in suit were the after acquisitions, Diwaker had 2-annas share, therein and plaintiff could not question the sale in respect of that 2-annas share belonging to Diwaker.

(3.) SO far as the defendants' appeal is concerned I think there is absolutely no room for any interference with the decision appealed against. The Courts below have concurrently found that the sales were not for legal necessity and that there was no bona fide enquiry, and that the recital in the sale-deeds, that money was required to pay off an antecedent debt, was only a formal recital to give the transaction the appearance of legal necessity. In short, the Courts have drawn the conclusion and I think rightly, that the sales were made under circumstances which could not constitute legal necessity so as to bind the plaintiff. The defendants' appeal, so far as it relates to 8-annas share in the fields in suit, must, therefore, stand dismissed with costs.