Judgement

Appeal (No. 22 of 1924) from a decree of the High Court (May 3, 1922) varying a decree of the Subordinate Judge of Meerut (August 6, 1920).

The respondents, the two younger sons of Harbans Singh, brought the suit in 1919, to recover possession of a moiety share in a village which had been sold by their father Harbans Singh in circumstances which appear from the judgment of their Lordships. Harbans Singh, his eldest son Fateh Singh, and the respondents constituted a joint Hindu family governed by the Mitakshara. The appellant-defendant was successor in title to Dalip Singh, the purchaser. The plaintiffs joined as defendants their father (since deceased), also their elder brother Fateh Singh. Plain tiff-respondent No. 1, who attained his majority on July 9, 1919, sued on behalf of himself and his younger brother.

The Subordinate Judge held that the deed was executed for an antecedent, debt and was binding upon the plaintiffs. He found that it was not established that the purchase money was applied to immoral purposes. He was also of opinion that the suit was barred by limitation.

On appeal to the High Court the learned judges (the Chief Justice and Piggott J.) found that Harbans Singh owed Rs. 1400 to Dalip Singh before the sale in question, and that he could alienate ancestral property only for the purpose of discharging that debt. They further held that the suit was not barred by limitation, following upon that question previous decisions of their own Court in preference to decisions of the Madras High Court applied by the trial judge. In the result they made a decree for the recovery of two-thirds of the property in suit subject to the payment of Rs. 1400.

1925. Oct. 30. Dube for the appellant. On the question of limitation it is submitted that the view of the Madras High Court in Vigneswara v. Bapayya (I. L. R. 16 M. 436.) and Doraisami v. Saluvan (I. L.

R. 38 M. 118.) was correct, and the decision in Ganga Dayal v. Mani Ram (I. L. R. 31 A. 156.) erroneous. But as Harbans Singh was alive when the suit was brought, Fateh Singh had not been managing member; it is conceded therefore that the failure of Fateh Singh to bring a suit probably did not render the present suit barred. The sale was, however, valid, since it was made " in order to raise money to pay off an antecedent debt" Sahu Ram v. Bhup Singh. (( 1917) L. R. 44 I. A. 126, 133, 134.) The judgment in that appeal is not affected in that respect by the judgment in Brij Narain v. Mangla Prasad. (( 1923) L. R. 51 I. A. 129.) It was not necessary for the purchaser to see that the money was applied in discharge of the antecedent debts ; it is immaterial that the debts were discharged before the purchase money was paid over. The respondents did not appear.

Dec. 4. The judgment of their Lordships was delivered by

MR. AMEER ALI. This is an ex parte appeal from a decree of the High Court at Allahabad dated July 3, 1922, and arises out of a suit brought by the plaintiffs on September 14, 1919, for a declaration that a sale effected by their father, Harbans Singh in 1906, in favour of one Dalip Singh, was not justified by any such necessity as would validate the transaction against the other members of the joint family of which Harbans Singh was the head. Dalip Singhs interests have been acquired by the present appellant, Jawahir Singh. The trial judge held that the plaintiffs had not made out a sufficient case to invalidate the sale to Dalip Singh. He was also of opinion that the plaintiffs claims were barred by the Indian Limitation Act (IX. of 1908), as Fateh Singh, their eldest brother, had attained majority long ago and had not questioned the sale. He accordingly dismissed the plaintiffs suit.

On appeal to the High Court the learned judges overruled the plea of limitation. They relied on the decision of their own Court in Ganga Dayal v. Mani Ram (I. L. R. 31 A. 156.), and differing from the view taken by the Madras High Court Vigneswara v. Bapayya (I. L. R. 16 M. 43