Judgement

Appeal (No. 60 of 1926) from a decree of the High Court (February 21, 1922) reversing a decree of the District Judge of Ferozepore.

The suit was brought by respondents Nos. 1 and 2, two minor members of a Hindu joint family, to set aside a sale of part of the ancestral property made by the managing member.

The trial judge dismissed the suit, but on appeal to the High Court (Rossignol and Abdul Qadir JJ.) the sale was set aside.

The facts of the case and the grounds of the decision appear from the judgment of the Judicial Committee.

1927. Feb. 14, 15. Dube for the appellants. The High Court took a mistaken view of the facts. The evidence shows that Rs.38,400 out of the Rs.43,500 sale price was applied to discharge debts existing at the time of the sale. The purchasers were not bound to account for the balance and were entitled to have the suit dismissed Krishn Das v. Nathu Ram. (( 1927) L. R. 54 I. A. 79.) The High Court wrongly gave weight to a supposition that the money could have been better raised by mortgage Phool Chand Lal v. Rughoobuns Suhaye. (( 1865) 9 Suth. W. R. 108.) Further that part of the price which was not applied to discharge debts was applied to carrying on the family business. The manager had authority to borrow money for that purpose.

De Gruyther K.C., and Wallach for the respondents Nos.1 and 2. The burden of the proving that there was necessity for the sale was upon the appellants Sham Sundar Lal v. Achhan Kunwar. (( 1898) L.

R. 25 I. A. 183.) That onus was not discharged for the reasons given by the High Court. The business had practically failed; the manager was not entitled to borrow in order to support it. In effect he was establishing a new business; he was not entitled, as against the minors, to do that Sanyasi Charan Mandal v. Krishnadhan Banerji. (( 1922) L. R. 49 I. A. 108.) Dube. It was not contended in India that the business was a new one, and the evidence shows that it was not.

March 11. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is an appeal from a decree of the High Court at Lahore reversing the decree of the District Judge of Ferozepore in a suit which was brought on behalf of Din Dayal and Bansari Basil, who were minors, to recover certain lands, the property of the joint family, which had been sold by Lachhman Das, the managing member of the family, to defendants 2 to 6, under a sale deed dated January 1, 1913. Lachhman Das was made the first defendant, and Musammat Dhani, the mother of the minor plaintiffs, who had joined in executing the sale deed, was also impleaded as the seventh defendant. The suit was instituted by Dal Chand, the minors brother-in-law, as their next friend. He stated to the Court that he had brought it at the instance of the elder minor, who shortly afterwards attained majority, and was brought on the record as the first plaintiff and next friend of the minor second plaintiff. The plaint alleged that the sale had been made for a nominal sum of Rs,43,500, that Lachhman Das, the first defendant, had not received the whole of the consideration, and that the sale was made without legal necessity and was not for the benefit of the minors. The price, Rs.43,500, was shown to have been a very favourable one, and the District Judge found that it had been paid in full and that the sale was justified by necessity, as the family debts amounted to Rs.38,400. This was the only question argued on the appeal to the High Court, who accepting the contention of the appellants family counsel that at the time of sale the family debts were not shown to have exceeded some Rs. 22,000 or Rs.23,000, held that the sale was made without legal necessity, and reversed the decree of the District Judge and decreed the suit without making it a condition that the plaintiffs should refund that portion of the consideration which was applied in the discharge of debts binding on the joint family.

A petition was presented for review of judgment, and in their order d