Judgement

Appeal (No. 125 of 1929) from a decree of the High Court (May 14, 1928) reversing a decree of the District Judge of Benares, which affirmed a decree of the Additional Subordinate Judge.

The appellants, and their father Paltu (pro-forma respondent No. 7) brought a suit against respondents Nos. 1 to 6 to recover a house in Benares which had formed part of the ancestral property of their Hindu joint family. Paltus father, who died in 1919, had transferred the house to his son in law Phalgu, by a deed of 1915, which the plaintiffs alleged was fictitious and without consideration. The defendants were in possession under a purchase in 1919 from Phalgu. The appellants were both minors in 1919.

The facts are more fully stated in the judgment of the Judicial Committee ; the terms of s. 41 of the Transfer of Property Act, 1882, also there appear.

The trial judge made a decree for possession subject to the payment of Rs.1046 which the defendants had paid to discharge a mortgage upon the house.

The defendants appealed to the District Court; there was no appeal by the plaintiffs as to the Rs.1046.

The District Judge dismissed the appeal. He affirmed the findings of the trial judge that the house was joint family property and that it had been alienated without consideration by what he described as a sham transaction, and that Paltu had not consented to the deed of 1915. He held that the purchaser had made no inquiries as to Phalgus title, and that therefore s. 41 of the Transfer of Property Act was no protection to the defendants.

An appeal by the defendants to the High Court was allowed. The learned judges (Kendall and Bennet JJ.) held that Paltu was estopped by s. 41 of the Transfer of Property Act, 1882, from maintaining the claim, and that the appellants were equally estopped. They found that Paltu by not taking steps to set aside the transfer of 1915 had impliedly consented to Phalgu being the ostensible owner. Further, that the finding of the District Judge as to the absence of inquiries by the purchaser was made without proper consideration of the evidence, that consequently under s. 103 of the Code of Civil Procedure it was not binding, and that upon the evidence sufficient inquiry had been made.

1931. Feb. 9, 10. Wallach for the appellant. The decision of the High Court should be reversed on the following grounds. First, because Paltu was not competent to give express or implied consent on behalf of his minor sons to ostensible ownership by Phalgu. Secondly, because the findings of the District Judge were binding upon the High Court under the Code of Civil Procedure, ss. 101, 102. Thirdly, because there was no ground for applying s. 103, and the finding of the High Court was wrong upon the evidence. As to the first ground. By s. 11 of the Contract Act a minor is incompetent to contract, and he is therefore by s. 7 of the Transfer of Property Act not competent to transfer property or to consent to it being transferred ; further, the transfer not being for necessity was invalid. The minors disability precludes his father, even if guardian, from consenting on his behalf so as to raise an estoppel under s. 41 Dalibai v. Gopibai (( 1902) I. L. R. 26 B. 433.); Dambar Singh v. Jawitri Kunwar (( 1907) I. L. R. 29 A. 292.); Abdullah Khan v. Bundi. (( 1911) I. L. R. 34 A. 22.) The last two cited decisions were by the High Court at Allahabad. Further, in Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I. A. 129.) the Board exhaustively considered the power of a father to deal with the property of the joint family so as to bind his son, and it was not suggested that the father by his laches could bind his son in relation thereto.

Their Lordships desired that the first ground should be argued for the respondents before proceeding with the others.

Dube for the respondents Nos. 1 to 6. Munnu Lal and after his death Paltu were managers of the joint Hindu family. In that capacity, and as to Paltu, as father, they were competent to consent