Judgement

Appeal (No. 183 of 1924) from a decree of the High Court (May 30, 1921) reversing a decree of the Additional District Judge of Aligarh which reversed a decree of the Subordinate Judge of Aligarh.

The suit was brought by the respondents in 1918 to set aside a sale of joint property made in 1902 by their father; he was made a defendant but did not contest the suit.

The facts, which were no longer in dispute, appear from the judgment of the Judicial Committee.

The Subordinate Judge set aside the sale, but an appeal to the District Court was allowed and the suit dismissed.

On a second appeal to the High Court (Lindsay and Kanhaiya JJ.) the decree of the District Court was set aside and a decree made for possession conditionally upon the plaintiffs paying into Court the sum of Rs.3000. The reasons of the learned judges are stated in the present judgment.

1926. Nov. 1. Dube for the appellant.

Hyam for the respondent.

[In addition to the cases referred to in the judgment reference was made to Phool Chand Lal v. Rughoobuns Suhaye (( 1868) 9 Suth. W. R. 108.); Mutteeram Kowar v. Uopaul Sahoo (( 1873) 11 Ben. L. R. 416.); Jainarain Pande v. Bhagwan Pande. (( 1922) I. L. R. 44 A. 683.)]

Dec. 10. The judgment of their Lordships was delivered by

LORD SALVESEN. This is an appeal from a judgment and decree dated March 30, 1921, of the High Court of Judicature at Allahabad which on second appeal reversed a judgment and decree dated February 1, 1919, of the Additional District Judge of Aligarh who had set aside a judgment and decree dated August 30, 1918, of the Subordinate Judge of Aligarh.

The petition of plaint was at the instance of Nathu Ram and his brothers, sons of one Dungar Mai, and was directed against Kanhaiya Mal who had purchased ancestral property from the plaintiffs father in the year 1902, and the main relief sought was that the sale deed dated December 23 in that year should be declared invalid, and the plaintiffs awarded proprietary possession of the property thus alienated by their father. The property sold consisted of (1.) One moiety share in a 6 biswa, 5 biswansi zamindari share of a property in mauza Daulatpur. (2.) A proportionate share in 51 bighas, 18 biswas, 13 biswansis " pukhta " of a zamindari property in the same mauza both situated in the district of Aligarh.

The plaintiffs were members of a Hindu joint family of which their father Dungar Mal was manager, and were minors at the date of the sale deed, and the eldest of them only attained majority some short time before the suit was brought. The plaintiffs father, Dungar Mal, was made a party to the action but did not defend. He was alive at the date of the trial, but has since died.

The facts found by the District Judge of Aligarh, which are admittedly conclusive, may be summarized as follows (1.) The sale deed in favour of the defendant No. ls father was executed in December, 1902, and the consideration therein stated of Rs.3500 was paid in cash. (2.) The property in question had been previously sold by auction, but on January 5, 1902, Dungar Mal paid Rs.1300 to get this sale set aside, and shortly before that he had spent a sum of about Rs.4000 on his sisters wedding. (3.) In order to meet part of his indebtedness thus incurred Dungar Mal had borrowed on promissory notes from Kewal Ram, a moneylender, two sums of Rs.1000 and Rs.1600. (4.) These two sums, with interest, bringing the total up to Rs.3000, were discharged out of the consideration money paid by the vendee, and the promissory notes delivered up. (5.) Before purchasing the property from the Hindu father the vendee ascertained the facts above mentioned. (6.) There was no evidence as to how Dungar Mal applied the Rs.500, the balance of the purchase price, and he did not tender himself as a witness. (7.) The Additional Judge accepted the conclusion of the Subordinate Judge that the sale was made for adequate consideration, and indeed, that the seller got a good price for it. (8.) He appears als