Mears, C.J and Mukerji, J.:— This is the appeal of Lal Bahadur Lal who, on the 25th of April, 1918, bought a 2 anna share in village Phulpur from Adit Bahadur, the father of the plaintiff. The plaintiff commenced a suit for the setting aside of the sale on the ground that there was no leal necessity for it and that, in truth, there was no consideration. The learned Subordinate Judge analysed the six items which made up the consideration of Rs. 5,995 and we have followed the same course dealing with each and every item because either the appellants or the respondent challenged one or other of them. We need not go into the details of these because they present no special features.
[Their Lordships went through the various items constituting the consideration for the deed in question and thus continued:—]
The addition of all these items allowed comes to Rs. 5,735-1-0 and, therefore, Rs. 259-15-0 is declared to be the amount for which there was no legal necessity.
When these figures were arrived at, there naturally arose the question as to the form of the decree and our attention has been called to what undoubtedly is a conflict of opinion. We think it desirable that this case should be considered and that a Full Bench should be asked to say whether on the figures as found by us the sale should be set aside on payment by Kamleshar Nath of Rs. 5,735-1-0 or whether the sale should be confirmed to Lal Bahadur Lal on his paying to Kamleshar Nath Rs. 259-15-0 or whether a third course should be taken of giving no relief to Kamleshar Nath at all.
The difference between the view taken by Benches of this Court will appear from a perusal of the following cases:—
Ram Dei Kunwar v. Abu Jafar.
Bachchan Singh v. Kamta Prasad, towards bottom of p. 396.
Jai Narain Pande v. Bhagwan Pande.
Dwarka Ram v. Jhulai Pande.
Sanmukh Pande v. Jagarnath Pande.
Musammat Allah Jilai v. Qabiz decided by.
Mr. Justice Mukerji and Mr. Justice Dalal, on the 11th June, 1924.
Jiwan Singh v. Gauri Shankar, decided by Mr. Justice Lindsay and Mr. Justice Kanhaiya Lal on the 30th of March, 1925.
Reference might also be made to Thirumalai Appa Mudaliar v. Nainar Theven(5), and to Girdharee Lall v. Kantoo Lall(6).
On the return of the opinion of the Full Bench let this matter be put up before us again for final orders.
Lindsay, Kanhaiya Lal and Daniels, JJ.:— On the question which has been referred to us by a Bench, we are of opinion that in this particular case the sale should not be set aside but should be confirmed in favour of the purchaser. The consideration which is mentioned in the sale-deed is Rs. 5,995 and it is found that for only a sum of Rs. 259-15-0, out of this sum, no legal necessity has been established. In our opinion this item is an insignificant sum which should be left out of consideration in deciding the question whether the sale should or should not stand. The sale was a sale of a 2 anna share out of a 5 anna 4, pie share and we have no reason to suppose that the precise such for which legal necessity existed could have been realized by a sale of any less share than that of 2 annas.
We need not discuss the case law on the subject. The latest case to which we have been referred will be found in Daulat v. Sankatha Prasad(7). That refers back to recent decisions which are to be found in Jainarain Pande v. Bhagwan Pande and Sanmukh Pande v. Jagarnath Pande. The whole case law on, the subject has been referred to in one or other of these rulings. The only authority on which Mr. Shiva Prasad Sinha for the respondent relies is the case of Dwarka Ram v. Jhulai Pande. We do not wish to criticize the merits of that decision, for we are satisfied that on the merits the decision was a perfectly correct one, if we may say so, but we are of opinion that there are certain expressions in the judgement which cannot be accepted literally and which are expressed too widely. We refer to the passage at page 432 of the report which runs as follows:—
“If any part of the consideration was invalid and not binding on the plaintiff, the plaintiff would be entitled to have the sale set aside. But if a portion of the consideration was good and binding on the plaintiff, he would be entitled (sic?) to reimburse it to the defendant. The form of the decree by a case of this kind should, therefore, be a decree for possession in favour of the plaintiff, subject to his paying to the purchaser so much consideration ax was required for the necessities of the family. This is the form of the decree in a suit of this kind which has always been maintained.”
We do not think it is correct to say that if any part of the consideration, however insignificant, was invalid and not binding on the plaintiff, the plaintiff is entitled to have the sale set aside. On the contrary, there is plenty of authority for the proposition that where the portion of the consideration for which no legal necessity can be proved is insignificant, the sale will stand. That was laid down in the case of Girdharee Lall v. Kantoo Lal, and the relevant passage of that judgement will be found quoted in the Bench decision in Jainarain Pande v. Bhagwan Pande. Nor again do we think it is correct to say that the form of the decree is a suit of this kind which has always been maintained is the form by which the plaintiff is given a decree for possession subject to his paying to the purchaser so much of the consideration as was required for the necessities of the family. On the contrary, there are cases in which the suit of the plaintiff has failed altogether, i.e, cases where the portions of the consideration money for which no legal necessity could be found were so inconsiderable as to be liable to be ignored.
The only other matter upon which we are called upon to express an opinion is whether in the circumstances of this case the purchaser is liable to pay to the plaintiff a sum of Rs. 259-15-0 for which no legal necessity has been held to be established. In our opinion the vendee in this case ought not to be made liable to pay this sum. It seems to have been held that this amount was actually paid to the father of the plaintiff, and that being so, we can see no good reason why the vendee should be required to pay the money over again.
Let this answer be returned to the referring Bench.
[On receipt of the opinion of the Full Bench, the following judgement was delivered:—]
Mears, C.J and Mukerji, J.:— The facts of this case will appear from our order, dated the 24th of June, 1925, referring a point of law to a Full Bench. The point referred to is also stated in that order.
The Full Bench have now decided the point and have held that the sale impeached by the son who was the plaintiff respondent in this Court, should be upheld in its entirety without any condition attached to the decree.
We accordingly allow the appeal and dismiss the plaintiff respondent's suit with costs throughout.
Appeal allowed.