Judgement

Appeal (No. 31 of 1932) from a decree of the High Court (November 18, 1929) reversing a decree of the Subordinate Judge of Allahabad (December 4, 1924).

On September 12, 1922, respondents Nos. 1 to 11, sons and grandsons of Mathura Prasad, who died in 1919, sued to set aside a sale deed of property of the joint family for Rs.6000, executed by Mathura Prasad on September 13, 1910. The defendants were the purchaser and his sons (appellants), and a son and a grandson (a son of a deceased son) of Mathura Prasad (respondents Nos. 12 and 13) who had witnessed the deed.

The facts appear from the judgment of the Judicial Committee.

Both Courts in India found that the deed had not been obtained by fraud or undue influence, also that Rs.6000 was a fair price. The Subordinate Judge dismissed the suit; he found that there was legal necessity to borrow the Rs.6000, and that defendant No. 1 had made sufficient inquiries. Upon appeal to the High Court the learned judges (Sulaiman and , Kendall JJ.) held that Rs.2600 out of the Rs.6000 represented , debts of members of the family other than Mathura Prasad, and that the discharge of them was not a legal necessity of the family ; they were not satisfied that defendant No. 1 had made sufficient inquiries on that point. They said that it was not disputed that before the plaintiffs could obtain possession they must make good to the vendor that part of the consideration which was found to be for necessity. The learned judges made a decree for possession on payment of Rs.3346, which included Rs.65, a proportionate amount of the expenses of executing and registering the deed.

On an application to the High Court for a certificate that the case was a fit one for appeal, the question of valuation was referred to the Subordinate Judge, who reported that at the date of the suit the value of the property was Rs. 11,500 and that on February 17, 1930, it was worth Rs.12,500.

1933. Nov. 16, 17, 19, 23. Wallach and W. Dutt for the appellants. The Subordinate Judge rightly dismissed the suit. The evidence shows that the purchaser acted in good faith and after proper inquiries as to the necessity for the sale. The whole Rs.6000 was required for family necessity; but even if part of it did not represent debts binding upon the family, the purchaser having made proper inquiries was entitled to have the suit dismissed Krishn Das v. Nathu Ram (( 1926) L. R. 54 I. A. 79.) ; Niamat Rai v. Din Dayal (Ibid. 211.); Gauri Shankar v. Jiwan Singh. (( 1927) 32 C. W. N. 257

(P. C).) Moreover the suit was instituted twelve years less one day after the date of the deed, and the evidence of members of the family who would have knowledge of the facts was withheld from the Court; the inference is that the suit was collusive Masit Ullah v. Damodar Prasad (( 1926) L. R. 53 I.

A. 204.) ; Ram Sunder Lal v. Lachhmi Narain. (( 1929) I. L. R. 51 A. 430 (P. C).) Parikh for the respondents Nos. 1 to 11. It being established that the family was joint the onus was upon the purchaser to prove that the alienation was valid. The evidence showed that part of the Rs.6000 represented debts which the plaintiffs were under no pious obligation to discharge. It was therefore not established that there was any legal necessity to sell the entire interest of the family in the property. It was not proved that the purchaser made adequate inquiry ; the evidence shows inquiry only as to the mortgage. The fact that the junior members were charging the senior members with being parties to an improper alienation accounts for the delay in bringing the suit, and for the senior members not being called. Wallach replied.

Dec. 18. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is a suit of the usual character to set aside a sale of joint family property by one Mathura Prasad, from whom the plaintiffs and the fourth and fifth defendants are descended, as shown in the following pedigree —

Mathura Prasad (die d 1918).

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