Findings of fact by an appellate court on contract execution are upheld if fraud was not specifically pleaded. Subsequent purchasers discharging mortgages are entitled to a charge on the property, and non-party family members retain the right to challenge a manager's authority in a joint family sale.

Lord Phillimore. -

This is a suit brought for the specific performance of an alleged contract to sell land. The contract is said to be contained in two documents, one stated to have been signed by the son of Defendant No. 3, who was the managing member of the Hindu family which owned the property ; the other, dated the next day, said to have been signed by the father. The suit was brought against the father and against two persons who claimed that they had purchased the property under a subsequent contract and who denied the existence and validity of the first con tract.

The Subordinate Judge found that the contract relied upon by the plaintiff was either a forgery or a fraud, and further, that it was an improvident sale which could not be supported against the other members of the family and for which, therefore, no specific performance could be decreed.

On appeal the High Court at Allaha bad came to a different conclusion. The Chief Justice and Gokul Prasad, J., held that the plaintiff had made out his case for the actual execution of the contract and that it was not an improvident sale. They further doubted whether the subse quent purchasers could raise the question of improvidence. It is from this decree that the present appeal is brought.

The first question is one of fact. There are many difficulties in the plaintiff's way and these were recognized by the Judges in the appellate Court and have been brought before their Lordships in a most forcible argument. But being so recognized by the appellate Court, they did not appear to the learned Judges to be sufficient to displace the case of the plaintiff or to counterbalance the diffi culties in the rival story. Their Lordships do not propose to refer these matters in de tail. Perhaps the most striking observation made by the Judges in the appellate Court is that the case of the defendants involving forgery or fraud was not poin tedly put in the defendants' written statement, and, though perhaps open under the general words of the defence and on the third issue, it was put without detail or colour, was not raised in the cross-examination of the plaintiff or his witnesses, and, as far as can be seen, was only disclosed when defendants' witnesses after an interval of several months, came into the witness box.

This being so their Lordships, on the whole cannot advise His Majesty to reverse the finding of the appellate Court on this point.

Then as to the question of the provi dence of the bargain, it should be ob served in limine, that the only appellants before the Board are the subsequent pur chasers. It is suggested on behalf of the appellants that under their purchase they acquired all the rights of the family and can use, therefore, any defence open to any members of the family. The Judges in the appellate Court thought that this was not so and that the point was one which could not be taken by the present appellants. Their Lordships are not satisfied that the Judges in the appel late Court were right upon this ; but they do not feel it necessary to pronounce upon this point or upon any point which may be said to involve the locus standi of the present appellants in this matter, because upon the whole, they cannot advise His Majesty to reverse the decision of the High Court on this second question of fact.

It is no doubt true that the present appellants, acting, as both Courts have found, with a knowledge of the plaintiff's claim, contracted for a larger sum of purchase money than the plaintiff had agreed for ; but there seems to have been a reason why they should be anxious to get the whip hand of the plaintiff, and if the matter be looked at apart from the question of the higher bid made by the appellants, the sale to the plaintiff would seem to have been at a handsome price.

The decree of the High Court must, therefore, stand.

There are, however, two points which may have been intended to have been provided for in the working out of the preliminary decree which the High Court has