1. The suit out of which this appeal arises was instituted on 15th April 1925. The delay in obtaining a final decision appears to me to be due to the fact that points which do not really arise have been considered by the Judges. Darbari, a Gond, owned a 4 annas share of mouza Neharia: he died and after him his sons Manju and Hammu died. The plaintiffs are two of the four sons of Manju. They alleged that the four brothers owned only a 2 annas share out of the 4 annas share, the remaining 2 annas being the property of Hammu's widow, Mt. Fagni. It is not material whether the plaintiffs are entitled to a larger share than they claim: Mt. Fagni is not a plaintiff. The defendants have admitted that in 1924 the plaintiffs and their brothers owned as much property as the plaintiffs alleged they did. On 10th July 1924 a deed was executed by the plaintiffs' brothers, Jiansa and Najaria, and by Mt. Kajaria in the capacity of the guardian of the two plaintiffs who were then minors, in favour of the defendant Dharamchand: by this deed a 2 annas share of the village purported to be transferred for a consideration of Rs. 400. Two days later, a deed of surrender with respect to some of the sir fields of the village was executed by the same persons. The plaintiffs sued for a declaration that the sale deed and surrender did not affect their rights. The reason given as regards the sale deed was that there was no legal necessity for sale. In the trial Court there does not seem to have been any plea that Mt. Kajaria, the mother of the minor plaintiffs, was not their guardian according to the law governing Gonds: the suit was dismissed by the trial Judge.
2. In first appeal an argument was raised that, under the Succession Act of 1865, a person could act on behalf of minor heirs only by taking out letters of administration to the estate of the person dying intestate.
3. It was held by the learned District Judge that this question could not be raised for the first time in appeal, and the appeal was dismissed.
4. In second appeal it was held that this ground should have been considered. It was also held that another ground which urged that the deed of sale and the deed of surrender constituted a single transaction and were void, should have been decided; the case was remanded to the Court of the District Judge. Mr. Digby, the District Judge, found that the transactions of the sale and surrender constituted a single transaction and that as there was in reality no apportionment of consideration, the whole transaction was void. He also held that because of the Succession Act, Mt. Kajaria could not act as guardian of the minors. Finally he held that the provisions of the Succession Act prevented the plaintiffs from suing for possession, but did not prevent them from suing for a declaration that the sale deed was void: he therefore granted the plaintiff a declaration that the sale was invalid so far as the shares of the plaintiffs were concerned. The defendant has filed a second appeal.
5. The grounds, which urge that Mt. Kajaria, as guardian of the minor plaintiffs, was competent to sell the estate for legal necessity, are not well framed, but it seems clear that the finding of the lower appellate Court is based on misapprehension. It is the case of both parties that, at the time of the transaction, the plaintiffs were owners of certain property. It does not appear to me material whether any of their ancestors had died intestate. If the ancestors had died intestate 50 years before, the provisions of the Succession Act could obviously have no application. I cannot see how the facts that deaths were more recent and that the plaintiffs are minors make the Act applicable. The case must be decided in accordance with the pleadings of the parties and it was the case of both parties that, at the time of the transaction, the plaintiffs were owners of the property they claim, and Mt. Kajaria was their guardian. There is a finding of fact that the transfer was effected for legal necessity and the transfer is therefore valid unless it contravenes a provision of the Tenancy Act.
6. It is admitted before me that the sale and surrender formed a single transaction. In view of the decision in Bhagwat v. Anandra A.I.R 1925 Nag. 302 , 86 I.C 515 , 22 N.L.R 136 this could not well be disputed. But it is urged that the legal and illegal portions of the transaction can be separated and only that part which relates to the surrender of the occupancy rights is void. The decision of the learned District Judge on this point appears to be based on a substantial error in procedure. No reference has been made to the pleadings of the parties. The family debts amounted to Rs. 920; the parties to the transaction transferred the share for Rs. 400 and surrendered the fields for a consideration of Rs. 520. There is no plea that Rs. 400 did not in fact represent the sum paid for the share. In the absence of such a plea it must be considered that the sums mentioned in the deeds represented the consideration for the transactions. It is obvious that, if after executing the sale deed on 10th July 1924 the transaction regarding the surrender had for some reason fallen through, the executants could not have avoided the sale deed without even alleging that the consideration had been entered as Rs. 400 because of an agreement regarding another transaction. The decree of the lower appellate Court must therefore be set aside; the plaintiffs' claim is dismissed; the surrender is invalid, but there is no necessity to grant the plaintiffs a declaration to that effect. I understand that the defendants are not in possession; the plaint shows this was the case at the institution of the suit. In view of the course taken by this litigation I direct that the plaintiffs will bear their own costs and half of the costs incurred by the defendant throughout. Counsel's fee in this appeal Rs. 30.
K.N/R.K
7. Order accordingly.