GAYA PRASAD Vs. DURGA SINGH

JUDGEMENT

(1.) This is an appeal by the defendants arising out of a suit for possession of the zamindari property in mauza Masgawan, district Hamirpur, and also for mesne profits on the following allegations. The plaintiffs and their deceased father Piare were members of a joint family. Piare had contracted a debt and the family was in involved circumstances. Piare applied, to the Commissioner under Section 6, Bundelkhand Encumbered Estates Act (Act 1 of 1903, Local), that the provisions of this Act be applied to him. The provisions of the Act were applied, and the Commissioner directed an enquiry to be made by the Special Judge, and the latter duly published a notice to all claimants in accordance with the provisions of Section 9 of the Act.

(2.) On the 2 September, 1911 Piare entered into an agreement with Durga, father of defendants 1 and 2, to sell the property in suit to him for a sum of Rs. 1,300. After this Piare appears to have changed his mind, and he sold the property to defendant 3, Sigdar, on 17 November 1911, for an ostensible sum of Rs. 2,500. Thereupon Durga sued Piare and Sigdar for specific performance of the contract dated 2 September, 1911. This suit was instituted on 19 March 1912 and was decreed on 27 July 1912. On 23 December 1912 an appeal, was preferred but it was dismissed on 12 November 1013. A sale-deed was executed through the Court on 21 March and it was compulsorily registered on 16 May 1914. In the meanwhile, on 16 May 1914, the Commissioner, under Section 28 of the Act, declared that Piare had ceased to be subject to the disability mentioned in S 10, Sub-section 2, aforesaid Act. Piare, the father of the two plaintiffs, and Durga, father of defendants 1 and 2, were dead on 17 November 1923 when the present action was commenced.

(3.) The plaintiffs sought to recover possession of the property which had passed out of the family by reason of the enforcement of the contract to sell, which had been entered into by the plaintiffs father on 2 September, 1911. The plaintiffs challenged the sale-deed on the following grounds that it was executed without consideration, without any legal necessity, and that both the contract to sell and the consequential sale were void under Section 10, Sub-section 2 Bundelkhand Encumbered Estates Act.