KAMTAPRASAD Vs. MADHORAO

JUDGEMENT

(1.) THE judgment in this appeal will govern the decision of the cross-appeal No. 470 of 1927--Madhorao v. Kamtaprasad and Ors. At the beginning of 1914 one Ramrao held a two annas share in Mouza Lachanpur in the Bilaspur District as his ancestral property. He had two sons, Baburao since deceased and Madhorao, the plaintiff in this case. On 14th February 1914 he sold the share to Mt. Pilibai, the pre-decessor-in-title of the defendants. In the suit out of which this second appeal arises Madhorao sought possession of the entire two annas share alleging that the consideration was taken for immoral purposes, or in the alternative, was not supported by legal necessity. He stated that Biburao is dead and Ramrao could not be traced so that he was entitled to possession of the entire share. The defendants urged that the right to avoid the transfer so far as Baburao's share was concerned abated on his death and that Ramrao was alive and the plaintiff could not claim his share. They alleged that the sale to Pilibai was supported by legal necessity and also that Pilibai made due enquiries regarding the existence of legal necessity before purchasing the property.

(2.) THE lower appellate Court has held in para. 3 of its judgment that the sale was not effected to obtain money for immoral purposes but was not justified by legal necessity; out of the purchase money Rs. 450 was used for the acquisition of tenancy right in certain lands at Mohtari there was no legal necessity to acquire these lands, but as the plaintiff was in possession of the lands the sale was valid against him to the extent of Rs. 450; there was no proof that the remainder of the consideration was obtained in order to benefit the family estate; it is not proved that Mt. Pilibai made any enquiries regarding necessity;. Ramrao was alive and still entitled to his share; and the right of Baburao to avoid the sale abated on his death.

(3.) I first deal with the second appeal filed by the defendants, S.A. No. 422 of 1927. It is first urged that the entire consideration of the sale-deed was taken for legal necessity and for the benefit of the estate. This ground attacks a finding of fact. Apart from the recitals in the sale-deed, there is no good evidence in support of the ground. Eamrao has admittedly been a spendthrift and the recitals in the saledeed carry a little weight. I see no reason to interfere with the finding of the lower appellate Court on this point.