The sons of a coparcener cannot challenge the sale of coparcenary property in execution of a decree against their father for a debt which had been secured for meeting the expenses of succession which was an act beneficial for the coparceners.

JUDGMENT:- This appeal is directed against the judgment and decree of the District Judge, Mandi, dated 23rd February, 1968, whereby the judgment and decree passed by the Senior Sub-Judge, Mandi was reversed and the suit of the plaintiffs was dismissed.

2. The relevant facts for the purposes of this appeal are:-

One Mehar Chand on the basis of a document Exhibit DK/1 obtained a decree for Rs.150/- with costs on 3-5-1953 from the Court of Sub Judge. Sunder Nagar, against Bhawania Chughu and Jeonu. The judgment-debtors failed to make payment of the decretal amount, hence the decree-holder in execution of the decree got 6 biswas of land out of khasra No.3869/1731 measuring 2 bighas 7 biswas situate in Muhal, Sunder attached and auctioned. The property was purchased in the court-auction by the decree-holder himself. He sold this land to Gian Chand for Rs.200/-.

3. The present plaintiff's are the sons of Bhawania, one of the judgment-debtors in the previous suit and also one of the defendants in the suit out of which this appeal has arisen. The plaintiffs filed this suit through their mother as their next friend for a declaration to the effect that the suit property was the joint family property of the plaintiffs and defendants 3 to 6 and it formed a coparcenary property, that the decree and the sale of the same was liable to be set aside as the consideration of the document on the basis of which the decree was obtained by Mehar Chand was not incurred for legal necessity and that the debts were contracted for immoral purposes, and, therefore, they prayed that the sale be set aside and also prayed for injunction that the defendant, Gian Chand, be restrained from interfering with the possession of the plaintiff's.

4. The suit was opposed by the defendants on a number of grounds, giving rise to several issues. The issues which were finally contested and pressed before the trial Court are the following:

Issue No.3: Whether State is a necessary party? (O.P.D)

Issue No.5: Whether the suit is barred by the principles of res judicata? (O.P.D.)

Issue No.6: Whether the plaintiff's are estopped to file this suit? (O.P.D.)

Issue No.8: Whether the plaintiff's and defendants 3 to 6 are coparceners qua the land in suit? (O.P.P.)

Issue No.9: Whether the debt was immoral and not for legal necessity as set out in the plaint? (O.P.P.)

Issue No.10: Whether the plaintiff's are not bound by the decree, dated 17-1-1959? (O.P.P.)

Issue No.11: Whether the transfer in favour of Gian Chand is without consideration and its effect?(O.P.P.)

5. The trial Court held on Issue No.3 that the State was not a necessary party. On Issue No.5 it was held that the present plaintiffs being minors were not parties to the previous litigation between the defendants 1, 2, 3, 4 and Jeonu deceased, and as such they cannot be bound by the decree passed in the litigation. Moreover, the right of sons to challenge an alienation on the grounds of legal necessity and immoral debt cannot be taken away from them merely by reason of a decree having been passed previously, to which they were not a party at all. The other aforesaid issues were also found in favour of the plaintiffs. Hence the suit was decreed, as prayed for.

6. On appeal to the learned District Judge only the findings on Issues 8, 9, 10 and 11 were challenged. The learned District Judge concurred with the findings of the trial Court on Issue No.8 that the suit property was a coparcenary property of the plaintiff's. On Issue No.9 it was held that the plaintiff's had failed to prove that the debt had been incurred for immoral and illegal purposes and that the findings of the trial Court on Issue No.11 were simply based on surmises and conjectures. So, on this basis he accepted the appeal, set aside the judgment and decree and non-suited the plaintiff's. Hence, this second appeal.

7. There are concurrent findings of both the courts below on the point that the plaintiffs were the members of the coparcenary with Bhawania, Chugh