Judgement

Appeal (No. 28 of 1925) from a decree of the High Court (June 20, 1922) varying a decree of the Subordinate Judge of Moradabad. The suit was instituted by the respondent to set aside a sale made by his father Janki Prasad in 1906 of joint family property for Rs. 18,400. The purchasers, from whom the property was claimed, and Janki Prasad were made defendants. The appellants, the purchasers, pleaded, among other pleas, that the sale was for necessity, and in satisfaction of antecedent debts.

Jowahir Lal, the grandfather of Janki Prasad, had mortgaged the property in 1895 for Rs. 11,000 to Abid Ali Khan ; and in 1903 had executed further mortgages in favour of Sri Koer and Ganeshi Lal. It was concurrently found by both Courts in India that out of the consideration money Rs. 12,900 was applied to discharge the first of the above mortgages, and Rs. 3122 to discharge the two mortgages last mentioned, which both Courts found were made for legal necessity.

The decrees made by the Subordinate Judge and by the High Court on appeal appear from the judgment of the Judicial Committee, in which the facts are more fully stated. The learned judges on appeal (Mears C.J. and Piggott J.) were of opinion that the payment of Rs. 12,900 to discharge the mortgage by Jowahir Lal could not be treated as for necessity, as although Janki Prasad was under an obligation to discharge the debt of his grandfather, the plaintiff was not under an obligation to discharge the debt of his great grandfather.

1925. March 23. De Gruyther K.C. and Abdul Majid for the appellants.

The respondent did not appear.

June 22. The judgment of their Lordships was delivered by

MR. AMEER ALI. This appeal arises out of a suit brought by the plaintiff Damodar Prasad on September 19, 1918, to set aside an alienation effected by his father Janki Prasad on September 17, 1906. Damodar Prasad the plaintiff is a member of a Hindu family subject to the Mitakshara law, and the allegations on which he seeks to have the sale by his father set aside are, in the common form, alleged immorality of the father, jointness of the family, and the absence of necessity for the sale, which is sought to be set aside. The plaintiff made his father Janki Prasad a defendant in the suit. Originally, he was defendant No. 6, but, after the addition of the representatives of some of the vendees, who had died in the meantime, Janki Prasad was made defendant No. 11.

In his plaint the plaintiff prayed to be put in proprietary possession of the property in suit and for mesne profits. In their answer to the plaintiffs claim the defendants denied that the property was ancestral, and they alleged that it was sold to them for Rs. 18,400, which was applied for family purposes, and that the alienation was valid in law and binding on the plaintiff.

The suit came for trial before the Subordinate Judge of Moradabad who, on February 25, 1920, held (inter alia) that the plaintiff had failed absolutely to prove the allegations made by him against his father of immorality ; he held also that it had been established that out of the Rs. 18,400 over Rs. 16,000 had been applied to the discharge of ancestral debts, the payment of which was binding on the joint family of which the plaintiff was a member. He held further that Janki Prasad, the grandson of Jawahir Lal who had contracted the debts that had been discharged out of the sale proceeds, was " competent to transfer the family property to discharge his deceased grandfathers debts which were not proved in the case to have been taken for any immoral purposes." He also held that Damodar Prasad, the great-grandson of Jawahir Lal, was burdened with the same obligation that lay upon Janki Prasad. But the Subordinate Judge found that out of the consideration of Rs. 18,400 a sum of Rs. 2000 odd was not properly accounted for, and that in respect of that amount the plaintiff was under no obligation. He found also that Janki Prasad, on July 9, 1907, transferred his half shar