Judgment

KASLIWAL

( 1 ) THIS Civilby special leave has been filed by the defendants Manibhai, Dhyaneshwar, and Waman Rao Narayan Raoaggrieved against the judgment and decree of Bombay High court dated 20/11/1979.

( 2 ) BRIEFLY stated the facts are that one Vithoba had two sons Beni Ram and Maroti. A partition took place on 14/07/1947 by a registered document between Vithoba, his son Beni Ram and two grandsons of predeceased son Maroti. In accordance with the above partition Beni Ram got agricultural lands survey Nos. 1, 3, 18 and 19 measuring 11. 69 acres, 00. 06 acres, 4. 48 acres and 8. 40 acres respectively, situate in Village Kharbi Tehsil and district Nagpur. Apart from the above agricultural lands Beni Ram also got a house No. 83 situate in Telipura, Itwari, Nagpur. After receiving the above properties in partition Beni Ram along with his two minor sons Hemraj and Ramdass executed a deed of conditional sale on 22/04/1948 (Ex. 48 of their properties in favour of Narayan Dass for a sum of Rs. 5,500. 00. Thereafter, by a re conveyance deed (Ex. 48 dated 11/02/1953 Beni Ram, Hemraj and Ramdass got the properties reconveyed in their favour by Narayan Dass. On the same day i. e. 11/02/1953 Beni Ram and his four minor sons executed a sale deed. (Ex. 40 of house property and agricultural land survey Nos. 3 and 18 in favour of Manibhai, the brother of Narayan Dass for a consideration of Rs. 5,500. 00. By another sale deed (Ex. 41 of the same date Beni Ram and his four minor sons sold 10. 69 acres of land out of survey No. 1 in favour of Vithal and his brother Vishwanath for a sum of Rs. 5,345. 00. Beni Ram and his minor sons then by sale deed (Ex. 61 sold the remaining one acre of land of survey No. 1 and 8. 40 acres of survey No. 19 for a sum of Rs. 3,000. 00 on 19/07/1954 in favour of the abovementioned Vithal and Vishwanath. Manibhai subsequently sold the house properly in favour of Waman Rao Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao.

( 3 ) SIX sons of Beni Ram along with their mother Sona Bai filed a suit on 10/02/1965 against Manibhai (defendant 1, Vithal and Vishwanath (defendants 2 and 3, Waman Rao, Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao (defendants 4 to 8 and Beni Ram (defendant 9 for a decree for possession of the agricultural lands and house which came in their share as members of Joint Hindu Family. The case of the plaintiffs as set out in the plaint was that Beni Ram, father of the plaintiffs 1 to 6 and husband of the plaintiff 7 was a person given to heavy drinking and gambling and a satoria. Due to all these vices he used to spend away everything whatever he used to earn in his business of grain dalali. The business of grain dalali did not require any capital. In the partition of ancestral properties made on 14/07/1947 Beni Ram was allotted the properties as given in para 3 of the plaint, and details of which have also been mentioned above. It was further alleged in the plaint that the entire properties allotted to the share of Beni Ram in theaforesaid family partition were ancestral and the plaintiffs had acquired an interest in such properties by birth.

( 4 ) ACCORDING to the plaintiffs all these alienations in favour of the defendants were illegal and invalid and were not binding on them. Plaintiffs further alleged that none of these sales were for any legal necessity or for the benefit of the estate or for the benefit of the minors. The sales were not for preserving or recovering any part of the estate of the plaintiffs. None of defendants 1, 2 and 3 made any reasonable, proper or bona tide enquires as to the existence of any necessity before entering into the aforesaid transactions with defendant 9. The plaintiffs further stated that the sale proceeds were not applied for the benefit of the minors or their estate by defendant 9 and were squandered by him on his vices.

( 5 ) IT was further alleged in the plaint that defendant 1 sold a portion of the house to defendants 4 to 7 vide