Skip to content


Shankar Narayan More Vs. Tukaram Ranu Bagal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 791 of 1928
Judge
Reported inAIR1932Bom438; (1932)34BOMLR808; 140Ind.Cas.256
AppellantShankar Narayan More
RespondentTukaram Ranu Bagal
DispositionAppeal dismissed
Excerpt:
.....law-debts-father's debts-antecedent debts-joint family property-mortgage by father-subseqnont sale-sale binding on son.;a hindu father mortgaged joint property in 1919 for rs. 500, and in 1921 borrowed rs. 411 on a promissory note. in 1925 he sold the property for rs. 2000 to pay off the mortgage debt as well as the debt due on the promissory note. in a suit by the son to set aside the sale and to recover possession of the property :-;that the mortgage and the promissory note, not having been for an immoral consideration, were antecedent debts, to discharge which the joint family property could be sold validly.;brij narain v. mangla prasad (1923) l. e. 51 i.a. 129 : s.c. i.l.r. 46 all. 95, 26 bom. l.r 500, bhim singh v. bam singh (1924) i.l.r. 46 all. 301, and lal bahadur v. ambika..........suit transaction not binding on him, alleging that defendant no. 2, who is his father, passed the sale-deed in suit to defendant no. 1 for rs. 2,000, without any legal necessity, and being forced to do so by misrepresentation. the other defendants are tenants of defendant no. 1. the first court, the jointsubordinate judge of barsi, held that though it was not shown that the property was sold for an illegal or immoral purpose, there was not shown to be any legal necessity for the sale, and he held that the sale-deed was not binding on the share of the plaintiff, who was entitled to possession of his share of the suit land by partition, together with mesne profits and costs. on appeal, the district judge of sholapur set aside the decree and dismissed the plaintiff's suit with costs. the.....
Judgment:

Baker, J.

1. The plaintiff, a minor, sued to recover possession of the plaint property after cancelling the sale-deed of July 81, 1926, or, in the alternative, for possession of his half share of the property on declaring the suit transaction not binding on him, alleging that defendant No. 2, who is his father, passed the sale-deed in suit to defendant No. 1 for Rs. 2,000, without any legal necessity, and being forced to do so by misrepresentation. The other defendants are tenants of defendant No. 1. The first Court, the JointSubordinate Judge of Barsi, held that though it was not shown that the property was sold for an illegal or immoral purpose, there was not shown to be any legal necessity for the sale, and he held that the sale-deed was not binding on the share of the plaintiff, who was entitled to possession of his share of the suit land by partition, together with mesne profits and costs. On appeal, the District Judge of Sholapur set aside the decree and dismissed the plaintiff's suit with costs. The plaintiff appeals.

2. In this case defendant No. 2 is the father of the plaintiff, and he has passed three documents, Exhibit 46, a mortgage dated June 6, 1919, for Rs. 500, Exhibit 48, a promissory note dated December 5, 1921, for Rs. 421, and the sale-deed, Exhibit 49 which was passed on July 81,1925, for Rs. 2,000 to pay off these two documents together with some cash paid before the Sub-Registrar. Both Courts have held that it is not proved that these debts were incurred for any illegal or immoral purpose, and also that it is not proved that there was any legal necessity for them. But the first Court has relied on Sahu Ram Chandra v.Bhup Singh I.L.R. (1917) All. 437 19 Bom. L.R. 498 L.R. 44 IndAp 128. That is a case which has been modified in thesubsequent Privy Council case of Brij Narain v. Mangla Prasad The learned Diatriet Judge has relied on that ease, and has pointed out that in a case where, as here, the alienations ate by a father the question of legal necessity does not arise. Theseason is bound by the alienations made by the father in satisfaction of antecedent debts incurred by himself, provided feat they were not for illegal orimmotal purposes. In Brij Narain's case the Privy Council lay down a number of propositions, which will be found at p. 104 of this report (48 All.). The only difficulty that arises in the present case is that one of the antecedent debts in this case, the first, is a mortgage, and under the third proposition in Brij Narain's case a mortgage will not bind the estate unless it is to discharge an antecedent debt. As a matter of fact, in this mortgage it is mentioned that the greater part of the consideration was to pay previous debts, but that is a point which the Courts below have not gone into, but the transaction which the plaintiff seeks to avoid, although in so doing he may Challenge the other transactions, is the sale-deed. The sale-deed is passed to pay off the antecedent debts, viz., those created by the mortgage, Exhibit 46, and the promissory note Exhibit 48. In relation, therefore, to the sale-deed by which the father alienated the land in suit, that mortgage Will, under the ruling in Brij Narain's case, be regarded as an antecedent debt, as the learned Ditrict Judge has pointed out. That that is a correct view of the principle laid down by the Privy Council in Brij Narain's case is clear from the case quoted by the learned District Judge, (sic)

3. In these circumstances, the view taken by the learned District Judge appears to be correct. In justice to the first Court it may (sic) been brought to its notice, The appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //