Judgement

Appeal from a decree of the High Court (February 22, 1924), reversing a decree of the District Judge of Darbhanga (March 9, 1921).

The suit was brought by the respondent against the appellants, members of a joint Hindu family, including the karta, Ramsaran Mandar, who died pending the appeal to the High Court. The claim was for the specific performance of an agreement alleged to have been made by the karta for the sale of certain family property, or for damages—namely, the return of earnest money with interest.

The trial judge found that the alleged agreement was not proved. The High Court (Das and Ross JJ.) found to the contrary, and made a decree against the surviving members of the family for the return of the earnest money with interest.

The facts relevant to the present decision appear from the judgment of the Judicial Committee.

1926. Nov. 1, 2, 4. Sir George Lowndes K.C. and Abdul Majid for the appellants.

De Gruyther K.C. and Dube for the respondents.

The arguments were to a great extent devoted to the question of fact whether execution of the alleged agreement was proved, also to the question of law whether the document required registration, which questions their Lordships found it unnecessary to decide. As to the liability of the son and grandsons of the karta reference was made for the respondent to Mayne, para. 327, and Masit Ullah v. Damodar Prasad. (( 1920) L. R. 53 I. A. 204.) For the appellant reference was made to Ma Shwe Mya v. Maung Ho Hnaung (( 1921) L. R. 48 I. A. 214.), it being contended that the nature of the suit could not be altered by amendment.

Nov. 29. The judgment of their Lordships was delivered by

LORD SINHA. This is an appeal from a judgment and decree dated February 22, 1924, of the High Court of Judicature at Patna, which reversed a judgment and decree, dated March 9, 1921, of the District Judge of Durbhanga and made in Suit No. 835 of 1919.

That suit was instituted by the plaintiff, Mahabir Sahu, against six defendants, all members of a joint Hindu family, constituted as shown in the pedigree below—

Ramsaran Mandar Ranglal Mandar a deceased brother of

Defendant 1 Defendant 1

| |

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Narain Thakur Lachminarain

Defendant 2 Persad Defendant 4

| Defendant

| 3

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Raj Ram

Kumar Kumar

Defendant Defendant

5 6

Defendants 4, 5 and 6 were all minors at the time the suit was filed, but defendant 4 attained majority before judgment. Defendant 3 died before filing any written statement.

The plaint alleged that Ramsaran (defendant 1), as head and karta of the above joint family, entered into an agreement with the plaintiff to sell certain houses and lands belonging to the said family for Rs. 11,000, and on August 20, 1919, executed an agreement for such sale (ex. 5 in the case) on receipt of Rs.9000 as earnest money, " affixing a stamp with his signature and thumb impression thereon," and stipulating to execute and register a regular conveyance within three weeks on receipt of the balance of the consideration. Ramsaran failed to execute the conveyance though called upon to do so, and the plaintiff prayed for specific performance of that agreement on payment of Rs.2000, or " if for any reason a decree for specific performance be not possible in the opinion of the Court, Rs.9000, the principal amount of the earnest money, with interest thereon, at Rs.2 per month by way of damages may be awarded to the plaintiff against the defendants."

By his written statement Ramsaran denied that he entered into any such agreement, or that he executed the document (ex. 5) as alleged or "received a single farthing as earnest money." He asserted that it was a false case altogether, put forward by one Kisorilal, in the name of his father in law, the nominal plaintiff, with a view wrongfully to obtain the properties in suit which he had unsuccessfully claimed in previous litigation; that the value of the properties was at least Rs. 21,000, and the story of an agreement to sell them for Rs. 11,000 was false and fra