BHAGWAT Vs. SALAMAT KHAN

JUDGEMENT

(1.) The plaintiffs, minor members of a joint Hindu family sued for the setting aside of a sale-deed executed by the major members of the family. The suit was decreed by the learned Subordinate Judge in a very careful judgment. He heard the evidence and was in a position to estimate the value of the oral evidence. The District Judge set aside the decree and decreed the plaintiffs suit on condition of payment of nearly the entire sale consideration. Hence the plaintiffs have appealed. The learned Judge's procedure has been somewhat hasty. He did not notice that out of the vendees only two had appealed. It is not clear why the payment of the entire sale consideration should be made to two of the vendees only. The other vendees had submitted to the decree of the trial Court and no decree was passed by the lower appellate Court with reference to the defendants who did not appeal. Under these circumstances the plaintiffs have filed the second appeal against two of the defendants only Salamat Khan and Hubdar Khan, who had appealed to the lower appellate Court.

(2.) The trial Court has given the detail of the sale consideration. The consideration was practically paid in cash. Rupees 1,600 was paid in cash before the Sub-Registrar. Rs. 200 was left with the vendees for payment to one Babban Lal. Rs. 1,432 was not paid at that time but is alleged to have been paid subsequently from 1915 to 1918. This sum was secured to the vendors by pro- notes executed by every one of the vendees. The balance of the sale consideration left with the vendees has admittedly not been paid. The District Judge did not notice the strictures made by the trial Court on Babban Lal. Those strictures will be found to be justified if Babban Lal's statement is read. Babban Lal was a witness for the defendants and was the only one who said anything about the sale consideration. I do not believe that any money was due to Babban Lal at the time of the execution of the sale-deed. He seems to have busied himself about the transfer and probably obtained this sum as a reward for his negotiation of the sale. The conflict in his testimony between the examination-in chief and the cross- examination discloses the sort of unreliable man that he is. As the evidence stands there is no oral testimony whatsoever that all this large amount of cash was required by the vendors for family necessity. What is noticeable is that not a single vendee has come in the witness box to state on oath that all these sums were apparently necessary for the common interest of the family to be borrowed. The District Judge has decided the matter in a manner which would abrogate all the tenets of the Hindu law framed for the purpose of saving the interest of the minor members of a joint Hindu family. He is of opinion that when all the adult members of a joint Hindu family enter into a transaction, the burden of proving want of legal necessity falls on the minor members who appear subsequently to challenge the action of the major members. It is true that when all the major members join in a transaction an inference favourable to the vendees may be drawn, if further circumstances in support of valid necessity exist to entitle a Court to hold that valid necessity did exist. It is a piece of evidence but nothing more. I have examined the cases quoted by the learned Counsel on behalf of the respondents: Balvant Rav Sanatoram V/s. Babaji [1884] 8 Bom. 602, Shamsher Datt Singh v. Lalla Singh A.I.R. 1924 Oudh 300, B. Bhagwan Das V/s. Allan Khan and Dhanraj Rai V/s. Ram Naresh Rai A.I.R. 1924 All. 912.

(3.) The coincidence appears to be curious that the last three judgments in two different Courts were delivered by the same learned Judge. In all those cases there was reason for the vendees on the face of the transaction to believe that the debt was contracted for the common interest of the family, for instance debts had to be paid off or there was a ruined building or the vendors shop required reconstruction. In all those cases there was evidence which would lead a transferee reasonably to suppose that the transaction entered into by the transferrers was really necessary for the common interest of the entire family. In the present case as mentioned above not one of the vendees has come forward to state what the circumstances were which gave him an apparent assurance of the existence of a necessity when all the major members of a joint Hindu family joined in the transfer. A vendee may be excused from making further detailed enquiries but to start with there must he certain circumstances in front of him to give him the impression of the probability of the existence of a valid necessity. In the present case no vendee has come forward to stated what the circumstances were. The oral testimony of the solitary witness Babban is worthless. All that can be said in favour of the vendees is that there was a recital in the sale-deed that money was wanted for the payment of a decree of 29 July 1914, and for further litigation connected therewith, for the marriage of a daughter and for the building of a house. A copy of the alleged decree is not on the file. There is nothing to show that the marriage of a daughter was pending nor has any of the vendees come forward to swear that he saw ruined house which required building or a building in preparation. A large portion of the sale consideration was not promptly paid and that ought to have raised a suspicion in the mind of the vendees that all these alleged necessities were not urgent. There cannot be the slightest doubt that all the necessities mentioned in the sale-deed were false.