Judgement

Appeal (No. 15 of 1924) from a decree of the Court) of the Judicial Commissioner of Oudh reversing a decree of the Subordinate Judge of Gonda.

The suit was instituted by the respondents and their youngest brother (since deceased) to set aside a sale of a share of a zamindari which was part of the property of their joint family. The sale had been made by their grandfather.

The defendants, who were purchasers, or their representatives, pleaded that Rs. 11,894 out of the purchase price was applied in discharging antecedent debts, and that the balance was applied in payment of Government revenue, the purchase of bullocks and household expenses. They also relied on the Limitation Act.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the suit was barred by limitation; he was further of opinion that the sale was valid.

Upon appeal the Court of the Judicial Commissioner held that only the first item mentioned in the present judgment, amounting to Rs.1633, constituted an antecedent debt within the meaning of Hindu law. It was held, however, that the usufructuary mortgage for Rs.8000 was binding upon the plaintiffs and supported the sale. The plea of limitation was rejected. In the result the Court made a decree declaring the plaintiffs title to the equity of redemption in the said mortgage, but subject to their paying Rs.1633 within two months.

1925. May 8, 11. Dunne K.C., Hyam and Srivastava for the appellants. The appellate Court based their decision upon the obiter observations in Ram Chandra v. Bhup Singh (( 1917) L. R. 44 I. A. 126.), which were explained subsequently in Brij Narain v. Mangal Prasad. (( 1923) L. R. 51 I. A. 129.) Under the latter decision the mortgages constituted antecedent debts. But in any case, as the plaintiffs were not born until after the mortgages were made, they were binding upon the plaintiffs interest, and part of the estate could be sold validly to discharge the incumbrance. Further, the plaintiffs father was alive when the suit was brought in 1919, but his claim was barred by limitation in 1916; his sons claimed derivately through him, and their claim is also barred.

De Gruyther K.C., and Parikh for the respondents. Upon the facts there was no necessity for the sale. The purchasers were bound to establish necessity Sham Sunder Lal v. Achhan Kunwar (( 1898) L. R. 25 I. A. 183.); Jogi Das v. Ganga Ram (( 1917) 21 Cal. W. N. 957.); Banwari Lal v. Mahesh (( 1918) L. R. 45 I. A. 284.); Mayne, paras. 366, 369, 654. The sale deed does not recite that there was any necessity, and it was not established that any money was applied to the payment of revenue or for any necessity. On the question of antecedent debt Brij Narain v. Mangal Prasad (L. R. 51 I. A. 129, 136.) is not applicable, as that decision related to a father and his sons. The vendor had two sons and the plaintiffs were under no pious obligation to discharge their uncles debts. Further, on the evidence as to age, the suit was barred. Dunne K.C. replied.

July 23. The judgment of their Lordships was delivered by

LORD BLANESBURGH. Two only of the questions which in this case were dealt with by the trial judge remain for consideration by their Lordships, and the facts which raise or surround them can be shortly stated.

The respondents are members of a joint Hindu family governed by the Mitakshara law. Ram Din, their grandfather, and his brother Pateshwari were in 1895 the managers of the joint family property, and on August 6 in that year they executed in favour of one Chote Lal, a predecessor in interest of the present appellants, two mortgages—the first, a simple mortgage of a portion of the ancestral family property to secure an advance of Rs.2000 and interest; the second, a usufructuary mortgage for Rs.8000 upon another portion of the family property—namely, a 4-anna share in the village of Tendwa Takya.

Ram Din, one of these joint managers, had two sons, Awadh Behari and Jantri Prasad. In 1895