Chiranji Lal v. Ganga Ram

Rafique, J.:— This appeal arises out of a suit brought by the plaintiffs-respondents for the recovery of possession of a house by cancellation of a sale-deed of 18th March 1914. It appears that the father of the plaintiffs-respondents executed the sale-deed of 18th March 1914 in respect of the house in suit in favour of the defendants-appellants for Rs. 200. It is admitted that the plaintiffs and their father form a joint and undivided Hindu family and that the house in question is ancestral. The plaintiffs stated in their plaint that the sale was made without any legal necessity and was, not, therefore, binding upon them. One of the pleas taken in defence was that the house was sold by the father of the plaintiffs for the benefit of the family, inasmuch as the house itself brought no income and was of no use while in exchange for the price of the house the vendor was given a mortgage on a shop. The learned Munsif in whose Court the suit was filed dismissed the claim. He was of opinion that the house in suit was of no value to the plaintiffs-respondents as it was surrounded by the houses of defendants and that in consideration for the sale a mortgage on a shop was given which was more beneficial to the family. He was further of opinion that such a transaction, in addition to being beneficial to the family, fell under the definition of legal necessity. The learned District Judge reversed the decree of first Court in appeal. The defendants have come here in second appeal. They repeat the arguments contained in the judgment of the first Court in support of the validity of the sale. I fail to see how the sale in suit can be described to have been made for legal necessity simply because in exchange of the sale the vendor got a mortgage on a property that does yield or might; yield income. The fact that the transaction is more beneficial to the family would not help the appellants. A Hindu father has the power of alienation in respect of joint ancestral property only in case of legal necessity. No such necessity has been proved in the present case. The appeal fails and is dismissed with coats.

JUDGMENT

2. Gulzari Lal, the father of the plaintiffs-respondents, having executed a sale-deed in favour of Chiranji Lal, Gopal Das, Sheo Charan Lal and Mohan Lal, appellants, the suit out of which this appeal has arisen, was brought by the plaintiffs for recovery of possession of the property comprised in the sale, on the ground that the property was no joint family property and that there was family necessity for selling it. The Court of first instance dismissed the claim. The lower appellate Court reversed the decree of that Court and made a decree in the plaintiffs' favour but provided in the decree that any improvements and additional constructions which the defendants purchasers may have made in respect of the property sold, may be removed by them within a time fixed, provided that the house was left in the same condition in which it was before the improvements were made. Upon appeal to this Court the decree of the Court below was maintained by a learned Judge. Hence this appeal under the Letters Patent.

3. The main contention on behalf of the appellants is that the family has benefited by the sale, inasmuch as in lieu of the amount of consideration for the sale a mortgage has been granted by the defendants to Gulzari Lal, the father of the plaintiffs, that the house sold was almost useless to the family, and that this mortgage, which is a usufructuary mortgage of a shop, is beneficial to the family. It appears that the sale was for a consideration of Rs. 200, but instead of the amount of the consideration being paid down, the vendees executed a mortgage-deed of a shop under which the vendor was to take possession. We do not think that the mere fact of a mortgage having been executed which would enable the vendor, the father of the plaintiffs, to remain in possession of the mortgaged shop and enjoy the usufruct, can necessarily be deemed to be a benefit to the family.

4. We find that the mortgage was made not only on behalf of adult persons but also on behalf of two minors. There may be considerable difficulty hereafter as to the validity of this mortgage, and in all probability disputes may be raised by the minors on attaining majority. So that instead of the mortgage being beneficial to the family, it might prove a source of loss and trouble to them. If the father of the plaintiffs had purchased for the family property of equal value with the proceeds of the property sold, that might have been a different matter. But that is not the case here. The lower appellate Court was, therefore, in our opinion, right in holding that the mortgage, which was the consideration for the sale, was not beneficial to the joint family, and that, therefore, the sale was without family necessity and was void as against the plaintiffs. Of course the consideration for the sale having failed, the mortgage would be ineffectual and the mortgagors would be entitled to take back the mortgaged property if they have delivered possession of it. In the decree of the learned Judge of the lower appellate Court it was provided, as we have said above, that if any constructions had been made in the house sold, the defendants would be at liberty to remove the materials put by them in the house. We think this would be impossible if the house was to be left in the condition in which it originally was, and, therefore the best course would be to decree to the plaintiffs possession of the house with the improvements, as it stands, and to direct that the parties should bear their own costs of the whole litigation throughout. We accordingly vary the decree of the lower appellate Court to this extent, that we strike out that portion of the decree which directs the appellants to remove the improvements which have been made and the materials which they have put in the house. In other respects, save as to costs, we affirm the decree of the Court below. With regard to the costs, we direct that the parties do abide their own costs in all Courts.

V.B/R.K

5. Decree varied.