SRI NATH Vs. JAGANNATH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for recovery of possession of immovable property by avoidance of a sale-deed dated 13 September 1910, executed by Mathura Prasad, the ancestor of the plaintiffs, in favour of defendant 1. Defendants 2 and 3 are the sons of the vendee and are joint with him. Almost all the members of Mathura Prasad's family, eleven in number, excluding one son Ram Partap and one grandson Bhairon Prasad who have been impleaded as pro forma defendants, have joined in the suit. A large number of these plaintiffs are still minors. The case put forward in the plaint was that Mathura Prasad was a very old, deaf and blind person and was a member of a joint Hindu family which owned the property in dispute jointly; that the defendant obtained a sale-deed from Mathura Prasad of property worth Rs. 10,000 on the date mentioned above without any legal necessity or without any need for the payment of any antecedent debt for a sum of Rs. 6,000 only, which was not binding on the family. There was a further allegation that even out of Rs. 6,000 a good part had been entered fictitiously. There was not any specific allegation of any fraud or undue influence having been committed on Mathura Prasad, though it was alleged generally that he had been induced to enter into this transaction. The contesting defendants pleaded that the sale was for legal necessity, and denied that any part of the Rs. 6,000 was fictitious, and further denied that property was worth anything like Rs. 10,000. They urged that the sale consideration was required for the payment of antecedent; debt and lawful necessity of the plaintiffs family and that the transaction had been entered into with the advice and consultation of Ram Pratap that after the completion of the document no member of the family ever took any objection in respect of it or of the possession of the defendants and that the family had accordingly acquiesced in the transfer. The learned Subordinate Judge has found that the family was joint at the time when the sale took place and that the property transferred was joint family property. He has also found that there was no evidence to prove any fraud or undue influence. These findings are not challenged before us in this appeal. He has further found that the sale deed was executed for family necessity and for the payment of certain antecedent debts. He has not recorded any finding as to the value of the property transferred and has not expressed his opinion whether the consideration was or was not inadequate. Examining the sale consideration in detail he has come to the conclusion that all the items of it were either for antecedent debts or for family necessity. Some of the debts which had been paid off by the defendants were debts incurred on documents executed, not by Mathura Prasad himself, but by some of his sons and grandsons, and with regard to these the learned Subordinate Judge has expressed the view that Ram Partap and Bhairon Prasad were really managing the affairs of the family and were practically transacting all its business and that these debts, having regard to the fact that Mathura Prasad in the sale- deed acknowledged his liability to pay them, must have been incurred for the family and were therefore binding on the family. He has in the alternative held that the acknowledgment of these debts by Mathura Prasad in the sale-deed would in any case make them antecedent debts, so as to justify his alienation of the family property in order to pay them off.

(2.) There was no specific plea in the written statement that the defendants had made due enquiry before the sale and were satisfied that legal necessity existed. There was also no specific issue on this point. "When two of the plaintiffs were examined, no questions were put to them on behalf of the defendants to show whether any enquiry had been made from them. But the question was assumed to be covered by issue 5 which related to the existence of legal necessity. The learned Subordinate Judge has believed defendant 1's statement that he had made enquiries as to these previous debts and was satisfied that they existed andthat in fact he had paid them off. On these findings the learned Subordinate Judge has dismissed the plaintiffs suit in its entirety. The plaintiffs have accordingly come up in appeal and on their behalf most of these findings are challenged.

(3.) The sale-deed of 13 September 1910 was executed by Mathura Prasad for Rs. 6,000. Out of this Rs. 900 were paid in cash before the Sub-Registrar. Rs. 119 were taken in order to meet the expenses of execution and registration of the deed. The rest was left in the hands of the vendee in order to payoff certain named creditors and to discharge certain named debts. This sale-deed was attested by the executant's son Ram Partap and his grandson Bhairon Prasad. His son Ram Partap was also present at the time of its registration.