Ram Dayal v. Suraj Mal

1. The facts which have given rise to this second appeal are as follows:

2. One Ganga Ram had three sons, namely Ram Dial, Badam and Bansi who were at one time joint with him. The family owned 1 biswa 10 biswansis 16 kachwansis and 13 nanwansis share in Mauza Semri which stood recorded in the name of Ganga Ram. Prior to 1901 Ganga Ram executed a hypothecation bond in respect of 6 biswansi share in favour of one Balkishun. Balkishun obtained a decree on the basis of his bond and in execution of that decree had the mortgaged property proclaimed for sale.

3. On 26th February 1901 Ganga Ram executed a hypothecation bond in favour of Shib Sahai for Rs. 200, the consideration of which was said to consist of Rs. 128-12-0 for a prior debt due to Shib Sahai and Rs. 71-4-0 taken in cash for the payment of the decree of Balkishun.

4. The bond of 26th February 1901 was given prior to the sale of the property in execution of the decree of Balkishun. Ganga Ram did not pay off that decree and the property was sold and purchased in the name of Bansi who was at the time a minor. In 1906 Shib Sahai obtained a decree for sale on the basis of his bond of 1901. In 1906 Ram Dial, plaintiff appellant 1, brought a suit in the Court of the Munsif of Sahaswan against Shib Sahaij Ganga Ram, Badatn and Bansi for a declaration that the entire property recorded in the name of Ganga Ramwas ancestral property out of which Ram Dial wad in possession to the extent of ¼th as his share and for a further declaration that the debt of Shib Sahai was fictitious and was not binding on him (Rain Dial). The latter was successful in his suit. Subsequently Shib Sahai obtained a decree under S. 89, Act 4 of 1882 in respect of ¾ths of the property hypothecated to him releasing the ¼th as the share of Ram Dial. 15 biswansis out of the 1 biswa share hypothecated to Shib Sahai were put up to sale in execution of his decree. But before the sale could take place Ganga Ram executed a sale deed on 15th Inarch 1910 in respect of 4 biswansis out of the said 15 biswansis in favour of Suraj Mal and Rewa Ram, the sons of Shib Sahai, in lieu of Rs. 600. It was Said in the sale deed that out of this consideration money of Rs. 600 the gum of Rs. 409-3-0 was to be appropriated towards the decree of Shib Sahai, and the rest, namely Rs. 190-13-0, was to be paid to the vendor. According to the endorsement of the Sub-Registrar the sum of Rs. 190-13-0 was paid in cash to Ganga Ram. On 27th March 1911 Ram Dial alone instituted a suit in the Court of the Munsif of Sahaswan for the cancellation of the sale deed of 15th March 1910 and, for the recovery of possession of the 4 biswansis conveyed by sale. He impleaded as defendants in the suit the vendees as also Ganga Ram and his two other sons and two other persons who were said to have brought a suit for pre-emption. Ram Dial stated in his plaint that he, his father and brothers formed a, joint undivided Hindu family, that the property recorded in the name of Ganga Ram was the joint ancestral zamindari property, and that the sale made by Ganga Ram was made without any legal necessity and for no consideration and was not therefore binding on him and was null and void. The principal defence was made by the vendees who denied the joint character of the family and in the alternative maintained the validity of the sale deed, on the plea that it was made for legal necessity by Ganga Ram as the head of the family who as such was according to Hindu law and statutory enactments competent to sell the property in suit. They further pleaded that the sale could not be set aside under the law. During the pendency of the suit the other sons of Ganga Rim, namely Bansi and Bad am, were taken out of the array of defendants and included in that of the plaintiffs on their own application. The learned Munsif held that the family was joint and that the sale could be set aside but only on payment by the plaintiffs of the whole consideration of Rs. 600. He further held that the sum of Rs. 409-13-0 constituted an antecedent debt and the remaining sum of Rs. 190-3-0 was neither an antecedent debt nor borrowed for legal necessity. But he thought it inequitable to order cancellation of the sale on the payment of the amount of the antecedent debt only.

5. Two of the plaintiffs preferred an appeal to the District Judge and the defendants-vendee filed cross-objections. In their cross-objections the defendants-vendees did not challenge the joint character of the family. All that they contended for was that the burden of proving that there was no legal necessity for Rs. 190-3-0 lay on the plaintiffs and that the sale could not be cancelled. The learned Judge agreed with the first Court in holding that the sum of Rs. 409-13-0 was the only sum which could be said to be an antecedent debts and that the balance was not borrowed for legal necessity. He however disagreed with the first Court as to the payment of which the sale was to be cancelled. He was of opinion that the sale should be cancelled on payment by the plaintiffs of Rs. 409-13-0 instead of Rs. 600. The decree of the first Court was modified accordingly. The plaintiffs have come up to this Court in second appeal and the defendants-vendees have filed cross-objections. The plaintiffs contend that the sum of Rs. 409-13-0 does not consbitute an antecedent debt inasmuch as in a prior litigation between Ram Dial and the father of the defendants-vendees and some others, it was found that the bond of 26th February 1901 was fictitious and without consideration. That finding is said to conclude the question as to the character of the debt, in other words it is a matter which is res judicata between the parties. In support of this contention the judgment of the Munsil of Sahaswan, dated 6th September 1906, is relied upon. It is true that in one place in that judgment the learned Munsif does remark that the bond of 26th February 1901 is fictitious. But the operative part of his judgment is as follows:

“The bond of defendant 1 is without consideration so far as plaintiff is concerned and was intended to benefit defendants 3 and 4 at the expense of the plaintiff.” On this finding we are unable to say that the question as to the character of the bond of 26th February 1901 is res judicata in the sense in which the appellants contend. We therefore hold that the appeal fails. As to the cross-objections the contention that the sum of Rs. 190-3-0 was borrowed for legal necessity is not sound. It raises a question of fact which is disposed of by the finding arrived at by the two lower Courts against the defendants-vendees. The next point urged is that under the law the sale deed in question cannot be set aside on payment of path of the consideration only. It is contended that the sons of Ganga Ram by reason of their pions duty are bound to pay the whole debt of their father, and the creditor of their father can, by a separate suit, proceed against him and after obtaining a decree can bring the entire property to sale in satisfaction of the debt. Under these circumstances it is said that it will be better to allow the cancellation of the sale on payment of the whole of the consideration. In support of this contention the case of Hasmat Rai v. Sunder Das (1) is relied on. That case no doubt supports the contention of the defendants-vendees. But in this Court it has always been held that a son in a joint Hindu family can ask for the setting aside of an alienation made by his father provided the consideration for the alienation is not an antecedent debt or for legal necessity. We will refer to two cases, viz. Manbahal Rai v. Gopal Misra (2) and Ram Dial v. Ajudhia Prasad (3) which seem to us in paint. The same principle seems to follow from the judgment of the majority of the Judges in this Court: Chandradeo Singh v. Mata Prasad (4). We, therefore, disallow the contention of the respondents and reject the cross-objections. The result is that both the appeal and the cross-objections fail. We dismiss them with costs including in this Court-fees on the higher scale. As for the payment of Rs. 409-13-0 by the plaintiffs we extend time to three months from today. In default of payment within that period the plaintiffs' suit will stand dismissed with costs.

V.B/R.K

6. Appeal dismissed.