MUKAT NATH Vs. SHYAM SUNDAR LAL

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by three sons of Lallan Lal who along with two of his nephews executed a sale-deed on 9th February 1917, for Rs. 12,500 purporting to transfer two annas share in village Parsauni in the district of Gorakhpur along with a mango tree and one dhur of land in the city of Gorakhpur. This document was presented for registration on 17th February 1917, at the office of the Sub-Registrar of Gorakhpur and inasmuch as on the face of it the deed covered property situated within his jurisdiction he registered it. The plaintiffs claimed that the transfer was without legal necessity and being of ancestral joint family property was not binding on the family. They further alleged that the sale of the mango tree and one dhur of land was wholly fictitious and was never intended to be operative and accordingly the Sub- Registrar of Gorakhpur had no jurisdiction to register the document and the document does not effect a valid transfer. The claim was contested by the defendants. The Court below has found that the property sought to be transferred is joint ancestral property but the sale consideration was all for legal necessity. He has, however, held that the inclusion of the mango tree and the one dhur of land in the sale-deed was entirely fictitious and was merely a device to enable the executants to present the document for registration at Gorakhpur and that it was never the intention of the parties that the interest in that property should pass. As a matter of fact he has gone further and held that the alleged tree probably does not exist at all. The learned Judge has decreed the suit for possession without calling upon the plaintiffs to pay any amount to the defendants. The defendants have appealed and challenge the findings of the learned Subordinate Judge.

(2.) So far as the questions of fact go we are in agreement with his view. There can be no doubt that the entire sale consideration was for legal necessity. Rs. 6,000 had been left with the vendee for payment to one Ram Sewak Upadhia on account of an usufructuary mortgage dated 7 June 1910, executed by the grandfather of the plaintiffs. There is no suggestion that this debt was tainted with immorality. It was an antecedent debt and therefore binding on the family. Another sum of Rs. 4,400 which was paid in cash before the Sub-Registrar had really been borrowed for payment to certain prior creditors who were named in the sale-deed. It is not suggested that these creditors were fictitious. The debts being antecedent debts of Lallan Lal are binding on his sons the present plaintiffs. Similarly the remaining sum of Rs. 2,100 had been set off on account of the amount due on two promissory notes dated 1 February 1916, in favour of the vendee. One of these was executed by the father of the plaintiffs and was an antecedent debt. Out of the property sought to be transferred only half belonged to Lallan Lal and his family and to that extent the consideration was undoubtedly good. The learned Judge has further pointed out that the sum of Rs. 6,000 which had been left with the vendee for redemption of the previous usufructuary mortgage was paid in Court and constituted a valid debt.

(3.) There can also be no doubt that the inclusion of the mango tree and one dhur of land in the sale-deed was a mere device and there was no real intention to transfer this property. The learned Judge has gone further and remarked that probably no tree exists now. There was no such specific allegation in the plaint and it is therefore not necessary for us to uphold this finding. But there can be no doubt that the whole object of including this bit of property was to justify the presentation of the document before the Sub-Registrar of Gorakhpur. The document was executed on 9 February 1917 and on that date admittedly even this mango tree and one dhur of land did not belong to Lallan Lal. There is no suggestion or evidence on the record that in reality a sale of this property had taken place in his favour before that date. On the 16 February i.e., two days before the registration a sale-deed was executed by Mahabir Prasad the scribe of the document in favour of Lallan Lal purporting to transfer this bit of property in favour of Lallan Lal. Mahabir Prasad was examined in this case and stated in favour of the vendee that this property belonged to him. In proof of this assertion the khatauni for 1325-F was filed by the defendants in which the name of one Mahabir Prasad was entered as the owner of a grove. On behalf of the plaintiffs the register from the Collector's office was sent for in order to establish that this Mahabir Prasad was an altogether different person.