Daniels, J.:— This is an appeal by the defendants in a suit in which the plaintiffs sought to recover possession of the property sold by their father Sham, Lal, defendant No. 9, to Musammat Phul Kunwari in 1602 for a sum of Rs. 1,455. It is stated in the judgment of the trial Court that the vendee was the wife of Sham Lal's cousin. The property was joint family property and the plaintiff's case was that the sale was executed without legal necessity. The sale was the subject of a pre-emption suit and the defendants are transferees from the successful pre-emptor. The pre-emption suit was decreed on payment of the full sale price. The sale in dispute was for cash paid in presence of the Sub-Registrar at the time of the execution of the deed to the extend of Rs. 1,301. The remainder of the consideration was left with the vendee for payment of three prior debts.
1. A mortgage debt due to Raghubar Dayal … …
Rs. 20
2. Another mortgage …
Rs. 25
3. To pay off a pronote due to Ganga Prasad … …
Rs. 109
2. The trial Court found that legal, necessity was established to the extent of Rs. 109 only and decreed the suit for possession subject to payment of this amount. The defendants 1 to 8 appealed and the plaintiffs filed cross-objections objecting to the order directing them to pay Rs. 109. The Court below dismissed the appeal and allowing the cross objections gave the plaintiffs an unconditional decree for possession. The defendants 1 to 8 have filed a second appeal to this Court. As regards the first two items of Rs. 20 and Rs. 25 the trial Court found that they were not due from Sham Lal but from his cousin. This finding was not assailed in appeal to the Court below and is final.
3. As to the item of Rs. 101 the finding of the Court below is that it is not proved that there was any such debt due to Ganga Prasad. The Subordinate Judge who tried the case had said in his judgment that the pronote was not proved but added, without referring to any evidence on the point, “I take it that Sham Lal borrowed that money and the ??? of the property for that amount would be to pay up antecedent debt.” The Court below holds that the Subordinate Judge was not justified in making any such presumption. It holds that the debt is not proved. This is a finding of fact which must be accepted in second appeal.
4. The appellants' case as to Rs. 1,301 paid in cash was that it was borrowed to pay off arrears of theka money due from Sham Lal to the Hathwa Raj. Both the Courts below have held that this is not proved. The trial Court held that it was at least possible that the whole transfer was collusive and made in order to save the property from liability to sale in case of the Hathwa Raj obtaining a decree. In the sale-deed it is said that this amount is borrowed to pay off lease money and for other necessities. There was a suit for arrears of lease money pending when the transfer was made. The claim was for Rs. 2,049 but it was ultimately decreed for a sum of Rs. 484 only apart from costs. The sum of Rs. 1,301 was certainly not applied in payment of lease money. The amount due was not realised until 1904 and 1905 (between two or three years later) by attachment and sale of Sham Lal's property. The Additional Judge considers that this throws great doubt on the story put forward by the defendants. After detailing the circumstances the learned Judge says;
“The inference is irresistible that the money borrowed Rs. 1,301 was not borrowed for the purpose of paying off the arrears.”
5. This again is a finding of fact which it is not open to the appellants to challenge in second appeal.
6. The learned Advocate for the appellants has pressed his case on two grounds:—
1. That the vendee advanced the money on the faith of a representation which she in good faith believed, and was justified in believing, that the money was borrowed for this purpose and it is, therefore, immaterial whether it was really so applied or not.
2. That as the property has passed out of family the sons cannot recover it ??? by showing that the consideration was obtained for an illegal or ??? purpose.
7. The first ??? may be disposed of on the simple ground that no case based on a respresentation was set up in either of the Courts below. I am asked to arrive at a finding of fact that such a representation was made though the question was never agitated before the Court of first appeal. If it were open to me to go into the question, the close relationship existing between the vendor and vendee might be a material point in deciding it. No plea as to representation was made in the written statement nor was any issue framed upon it. It is glanced at in one sentence in the trial Court's judgment where the learned Subordinate Judge in dealing with the plea that the money was borrowed to pay up arrears of lease money says that the transferee should have satisfied herself that suit was not a fictitious suit and that the money was actually due from Sham Lal in the sequel, as have already noted, he thought it possible that the whole transfer made by Sham Lal in favour of his cousin's wife was a collusive transaction. In the grounds of appeal to the Court below the only ground which can possibly be treated as bearing on this question is para. 5 which runs:—
“That the lower Court has regarded the fact that the consideration was really spent for legal necessity as not proved is irrelevant. The lower Court ought not to have relied on this fact.”
8. This, however, is not a plea, of representation. It asserts that the plaintiffs ought not to have relied on the omission to pay up the theka money as an argument against the money having been borrowed for this purpose. It does not assert that a representation of the existence of legal necessity was made to the vendee or that she advanced the money after due enquiry under an honest belief of the truth of that representation. It is clear from the detailed judgment of the learned Additional Judge that no such plea could have been argued before him.
9. The second plea is entirely untenable. It is only where property has passed out of the joint family under an alienation in lieu of antecedent debt or in execution of the creditor's remedies for such debt that it lies on the sons to prove that the debt was illegal or immoral. This was laid down in the leading case of Suraj Bunsi Kuer v. Sheo Parsad Singh (1), and was re-affirmed in Sahu Ram Chandra's case (2), and in the very recant case of Brijnarain v. Mangla Prasad Rai (3). The distinction between an alienation incurred in lieu of prior debt and an alienation entered into for cash was the basis of the decision in Chandradeo Singh v. Mata Prasad (4), which was subsequently affirmed by their Lordships of the Privy Council. The principle has been explicitly reaffirmed by this Court in the case of Sahib Singh v. Girdhari Lal (5).
10. At the conclusion of his argument the learned Advocate, relying on a passage in the recent case of Brijnarain v. Mangla Prasad Rai , suggested that if the alienation was otherwise invalid it could at least be enforced against the father's own share in the joint family property.
11. This has never been the law in the fee provinces and in my opinion their Lordships did not intend in the passage relied on to change what has long been settle law so far as these provinces are concerned. The passage is, in my opinion, only applicable to those provinces in which the right of a co-sharer to dispose of his own share is recognised.
12. The appeal, therefore, fails on all the grounds urged and it is, accordingly, dismissed with costs including in this Court fees on the higer scale.
13. Appeal dismissed.