1. This case is one of some importance and raises in a pronounced question of principle which appears never to have been decided by the courts in this country, namely, where a sale has been made by a father and manager of a joint Hindu family without legal necessity, and the sons afterwards repudiate and set the transaction aside; from what date ought the purchaser to be held accountable for mesne profits?
2. The defendants in this case purchased certain property from the plaintiff's father who was manager of the family property on the 18th of October, 1900. It was property of a joint Hindu family, and the sale was made without legal necessity. The plaintiffs, who are two sons of the vendor, the vendor having died before the Institution of the proceeding, brought a suit to set aside the sale shortly after attaining their majority. The transaction was, of course voidable, and on the title 30th of April, 1913, it was set aside and the plaintiffs obtained a decree for possession. On the 10th of August, 1914, the present suit was instituted for mesne profits. I will deal in a moment with the question of bringing two suits in such a case. The lower appellate court has decreed mesne profits from the date when possession was obtained by the plaintiffs. This is clearly wrong. But it does not follow from that, that the plaintiffs are right. They have brought this appeal in assertion of the principle that mesne profits are payable from the date of the defendants' original purchase. Ordinarily speaking this would be so. It has been found by the court below that the defendants purchased in good faith, if that is the correct expression to use when they take the risk, as they did here, of the sale being subsequently challenged. But it is clear law that the good faith of the defendant is no answer to a claim for mesne profits by a man who has been kept out of his lawful property and has lost the proceeds of it. The purchaser, who has acquired no title against the true owner, has his remedy against his vendor. That was the ground of the decision in an old case reported in Mugun Chunder Chuttoraj v. Surbessur Chuokerbutty (1867) 8 W.R. 479, where the purchaser had been deceived by the vendor, and had to pay mesne profits from the date of his purchase. But in my opinion the class of case with which we are now dealing must be treated as an exception to the general rule. The sale need never be avoided unless it is repudiated by a member of the family. The defendants had a title, though a defeasible one. It might be years before the children repudiated, and in any case the sale did not dispossess them of property to which at the time they were entitled in their own right. I think it is the position of the plaintiff, and the existence of their option to avoid the sale, which makes the difference and creates an exception to the general rule. The bond fides of the defendants is material in the sense that it enables them to avail themselves of the exception, but it does not create it. I think the fair and equitable conclusion is that the possession of the defendants becomes wrongful, and they are therefore answerable to the plaintiffs as from the date of the repudiation by the plaintiffs by the institution of the suit, namely, on the 11th of December, 1912. From that moment the defendants continue in possession and dispute the claim at their peril. The question appears to be res integra. The respondents relied upon what was said by the Privy Council in Dakhina Mohan Roy v. Saroda Mohan Roy (1893) I.L.R. 21 Calc. 142. Although the point in that case was quite different and the defendant who had been in possession under a binding order of a competent court was made answerable for what he had actually received with a credit for salvage and expenses, still the principle is recognized that the court is entitled to deal with a question of this kind with a free hand, and to do what seems most in accordance with equity and justice. I would further refer to a dictum of the Privy Council in Grish Chunder Lahiri v. Shoshi Shikhareswar Roy (1900) I.L.R. 27 Calc. 951 : L.R. 27 I.A. 110 in which Lord Hobhouse says: 'Mesne profits are in the nature of images which the court, may mould according to the justice of the case.' I am fortified, if not altogether persuaded, in adopting the view I do in this particular matter by the concurrence of Mr. Justice Sundar Lal who has the advantage of his intimate knowledge and experience of what one may call the equitable considerations which arise when persons who deal in joint Hindu family property have to surrender it with a valueless remedy against their vendor or his estate.
3. I am at a loss to understand why the plaintiffs were allowed in their original suit for cancellation of the deed to drop this claim and bring a second action against the defendants. They were allowed do so by the court, otherwise the second suit would have been altogether barred, so there is nothing to be said on the question of right. But Presumably they did it for their own I think such procedure should be severely discountenanced And although I would allow the appeal to the extent; of modifying decree of the court below by giving the plaintiffs mesne profits from the 11th of December, 19 12, I think they ought to have no costs either of the suit or of the appeal.
Sundar Lal, J.
4. I am of the same opinion. The sale by the father and manager of a joint Hindu family is not necessarily void, though it may be avoided on certain grounds by other members of, of the family. It may be a sale advantageous to the family, though not for a legal necessity, which the minor members of the family may decide to adhere to. Sales like this are frequently made in good faith by the head of the family. Until avoided I think the sale holds good. The plaintiffs avoided the sale-deed by their suit filed on the 11th of December, 1912. They obtained a decree for possession. The claim for mesne profits is subject to equities in favour of the purchaser, and in many cases the courts in this country have made the price paid by the purchaser a charge on the vendor's share of the property and given to the plaintiffs a decree for possession of their share of the property as separate property. In this case I think the plain-tiffs were entitled to avoid the sale-deed and to obtain mesne profits from the date on which they gave notice of their option to avoid it to the purchaser. That date in this case is the 11th ox December, 1912, and I think that it is from that date the plaintiffs are entitled to mesne profits. In an ordinary Hindu family no member of a joint family is entitled to an account from the head of the family and the plaintiffs would not have been entitled to obtain an account of their share of the profits from the father, nor are mesne profits awarded in a partition suit except under very exceptional circumstances. I think where the purchaser from the head of a family has purchased in good faith the property, he is entitled to treat the sale as binding until one of the members of the family exercises his option to avoid if and on that ground I agree entirely in the judgement just pronounced by my brother Mr. Justice Walsh.
5. By the Court. We allow the appeal, reverse the decree of the lower appellate court, and the give the plaintiffs a decree mesne profits from the 11th of December, 1912, until possession was given up to the plaintiffs, viz., the 23rd of December,-19l3, Each party will pay his own costs of the suit in all courts, and of this appeal. We remand the case under Order XLI, Rule 23, to the lower appellate court to ascertain the correct sum of mesne profits on the basis of this decree. The term mesne profits is to exclude any sum for interest.