M.P. Mehrotra, J.
1. This appeal and the connected revision arise out of two connected suits, namely, original suit No. 27 of 1945, connected with original suit No, 297 of 1945. Both the suits were consolidated in the trial Court and were disposed of by one common judgment. On appeal the lower appellate court also disposed of the two connected appeals by one common Judgment. Against the Judgment of the lower appellate court the instant second appeal and the connected revision have been filed. The second appeal arises out of original suit No. 297 of 1945 and the connected revision arises out of the original suit No. 29 of 1945. The said suit No. 27 of 1945 was initiated by an application under Section 12 of the U. P. Agriculturists Relief Act whereby the plaintiffs claimed possession over the mortgaged property after redemption of certain mortgages. Against the judgment whereby the said application was disposed of an appeal lay to the lower appellate court but, it seems, no second appeal lay against the judgment of the lower appellate court and hence a revision was filed against the judgment of the lower appellate court. On the other hand, original suit No, 297 of 1945 happened to be a regular suit between the parties which resulted in a decree and, therefore, the connected second appeal was filed in this Court against the judgment of the lower appellate court.
2. The brief facts Involved in the litigation are these : On 28th May, 1936, fourteen persons executed a sale deed for Rs. 16,000/- in favour of Rajnarain and Udainarain who are the defendants-appellants before me in the second appeal and applicants Nos. 1 and 2 in the connected revision. These two persons were defendants Nos. 1 and 2 in the original suit No. 297 of 1945 wherein the plaintiff sought the cancellation of the aforesaid sale deed dated 28th May, 1936. These two persons, namely, Rajnarain and Udainarain were the applicants Nos. 1 and 2 in the redemption suit No, 27 of 1945. By the aforesaid sale deed 43 bighas and odd fixed rate tenancy land was sold to the said two purchasers and the bulk of the sale consideration was left with the vendees for redeeming the prior usufructuary mortgages, four of which had been executed on 30th of Oct. 1907, and the redemption of three of which was claimed by Rajnarain and Udainarain in the redemption suit. One Sakal Bind had four sons by names Todar, Hoal, Sahai and Bhagwan. The plaintiffs in suit No. 297 of 1945 and the defendants second set in the said suit are the descendants of the said four brothers. The details of the four usufructuary mortgage deeds which were executed on 30th Oct., 1907 are as follows :--
1. Todar's son Padarath executed the deed for a sum of Rs. 2,099/15/-.
2. Another mortgage deed was executed by Hoal's son for Rs. 3,199/15/-.
3. The third mortgage deed was executed by Bhagwan's three Sons, namely, Raicchha, Banjhu and Ramlagan for a eum of Rs. 2,499/15/-.
4. The fourth mortgage deed was executed by Lakhraj, the son of Sahai, for a sum of Rs. 2,800/-.
3. The sale deed dated 28th May, 1936 was executed by the heirs of the said mortgagors. An important stipulation of the sale deed was that the vendees would redeem the aforesaid mortgages and after recovering possession of 81 bighas and odd land from the mortgagees, the vendees would keep 43 bighas and odd land with themselves which was the land sold in their favour by the said sale deed and the rest of the land was to be handed back to the vendors who, as stated above, were the heirs of the original mortgagors,
4. It seems that the vendees of the aforesaid sale deed dated 28th May, 1936 did not carry out the terms contained in the said document in full. They made some payments to the creditors of the vendor, secured and unsecured, but the full payments as stipulated therein were not made. Suit No. 39 of 1944 was filed by the vendors of the aforesaid sale deed against the said vendees. The vendor claimed the recovery of unpaid purchase money and damages. In the alternative, reliefs for possession and damages were claimed. This suit was decreed on 20th Feb., 1945 for some of the reliefs claimed. By a sale deed dated 29th June, 1945, Rajnarain and Udainanain, who had purchased 43 bighas and odd land by the earlier sale deed dated 28th May, 1936 sold half of the property purchased by them In favour of the applicants other than applicants Nos, 1 and 2 in suit No. 27 of 1945. A part of the sale consideration was left with the purchasers for being paid to the mortgagees of the three mortgage deeds.
5. The applicants in suit No. 27 of 1945 sought to redeem the first three mortgage deeds detailed above. Possession of the mortgaged property was sought after the redemption of the mortgage deeds. As has been stated above, the said suit No. 27 of 1945 was one under Section 12 of the U. P. Agriculturists Relief Act.
6. Original Suit No. .297 of 1945 was filed by the minors of the Bind family in which they claimed to recover possession over the land sold in favour of Rajnarain and Udainarain by the aforementioned sale deed dated 28th May, 1936 after cancellation of the said deed. The plaintiffs impleaded Rajnarain and Udainarain as the first set of defendants and the defendants second set consisted of the vendors of the said document who were the parents or guardians of the minor plaintiffs. It was alleged that the defendants second set executed the said sale deed without any legal necessity and for wholly inadequate consideration. The transaction was alleged to be fraudulent and the plaintiffs claimed that they themselves had to pay all the creditors. The defendants first set contested the suit, Various pleas were raised in defence. Both the aforesaid suits, as already stated above, were consolidated and tried together. The Issues which were framed in the two suits are 'being reproduced as they will give an idea of the nature of the controversies involved therein : Suit No. 27 of 1945
1. Whether the suit Is bad for multi fariousness ?
2. Whether the plaintiffs are entitled to bring a suit under Section 12 of the A. R. Act?
3. Whether the plaintiffs are vendees from the mortgagors ?
4. Whether any portion of the mortgage money has been paid up and the propor-tionate property redeemed 7
5. Whether there has been a valid discharge of the mortgage deeds ?
6. Whether there is any tacking bond dated 28-8-1916 for Rs. 399/15/-.
7. Is there any simple mortgage deed dated 14-9-1932 If so, what are its particulars and what is its effect ?
8. To what relief, if any, are the plaintiffs entitled ?
9. Whether the vendors of the plaintiffs were competent to sell the property Suit No. 297 of 1945
1. Whether the impugned sale deed was executed for legal necessity or for the payment of antecedent debts by the managers of the respective branches of the family ?
2. Is the suit time barred ?
3 Is the suit barred by Section 11 of the Civil P. C. ?
4. Is the suit barred under Section 42, S. R. Act ?
5. Is the suit frivolous and vexatious If so, are the contesting defendants entitled to special costs ?
6. To what relief, if any, are the plaintiffs entitled
7. The trial court held that suit No. 27 of 1945 was not bad for multifariousness and that the applicants therein were agriculturists and entitled to maintain the action under Section 12 of the U. P. Agriculturists Relief Act. The said court also held that despite the repeal of the said Act the proceedings already initiated in suit No. 27 of 1945 did not abate and could be proceeded with. The said court further held that the impugned sale deed was a binding one and was executed for a legal necessity and for the payment of antecedent debts by the managers of the respective branches of the Bind family. It was next held that the mortgage in the sum of Rs. 2,800/- had been paid off by the applicants of suit No. 27 of 1945 and the proportionate mortgaged property stood redeemed on account of the said payment. On issue No. 5 of the suit No. 27 of 1945 it was held that the claim of the defendants Binds that they had validly discharged the mortgage deeds was not correct. The trial court, however, held that suit No. 297 of 1945 was maintainable and was not hit by Section 11, C. P. C. The judgment in earlier suit No. 39 of 1944 was not res judicata in the said subsequent suit No. 297 of 1945.
8. On the aforesaid findings, suit No. 27 of 1945 was decreed and suit No. 297 of 1945 was dismissed.
9. Two appeals were filed against the judgment of the trial court, arising out of the said two suits Nos. 27 of 1945 and 297 of 1945 and, as stated above, both the appeals were disposed of by the lower appellate court by one common judgment. Civil Appeal No. 12 of 19 :59 arising out of original suit No. 27 of 1945 was allowed and the said suit No. 27 of 1945 was dismissed. A direction was given that the amount deposited for the redemption of the three mortgages would be refunded to the depositors. Civil Appeal No. 6 of 195.8 arising out of original suit No. 297 of 1945 was also allowed and the said suit No. 297 of 1945 was decreed subject to the payment of Rs. 4,839/15/- by the plaintiffs of the said suit to Rajnanain and Udainarain who were the defendants Nos. 1 and 2 therein.
10. Second Appeal No. 711 of 1964 has been filed by Rajnarain Singh and Udainarain Singh and the appellants and it arises out of suit No. 297 of 1945. They also filed the connected revision, being revision No. 308 of 19)64 which arises out of suit No. 27 of 1945.
11. Shri K. C. Saxena, learned counsel for the appellants in the appeal and for the .applicants in the revision contended as follows :
1. The lower appellate court was wrong in holding that the sale deed dated 28th May, 1936 was an imprudent transaction. It may be mentioned here that the said court had held that the transaction taken as a whole was for the benefit of the estate but the vendors of the said document were held to have acted imprudently in entering into a transaction with Rajnarain and Udainarain who were held not solvent parties who could have made payments in terms of the sale deed to the creditors of the vendors. Counsel contended that the sale deed was for legal necessity and a binding one as held by the trial court.
2. The judgment in suit No. 39 of 1944 was res judicata in respect of the subsequent suit No. 297 of 1945. In this connection counsel placed reliance on the sixth explanation to Section 11, C. P. C.
3. The plaintiffs in suit No. 297 of 1945 could not be allowed to take up inconsistent stand after their parents and guardians had affirmed the sale deed dated 28th May, 1936 in the earlier suit No. 39 of 1944. Having elected to affirm the sale transaction in the earlier suit, it was not open to them to repudiate the same in the subsequent suit No. 297 of 1945. Counsel placed reliance on the following cases ;
Lingangowda v. Basangowda , Jagat Narain v Mathura Das : AIR1928All454 , Kishan Sarup v. Brij Raj Singh : AIR1929All726 , Kumara-velu v. Ramaswami , Kazim AH Khan v Om Prakash : AIR1937All731 , Udrej Singh v. Ram Bahal Singh : AIR1946All436 , Nagubai v. B. Shama Rao : 1SCR451 , Mt. Su-denhaiya v. Ram Dass : AIR1957All270 , Smt. Dhana Kuer v. K. N. Chaubey (1967 All WR (HC) 290), Amrit v. Sudesh : 3SCR1002 and Mulla's Hindu Law para. 25.
12. Shri Sankatha Rai, learned counsel for the respondents, supported the judgment of the lower appellate court and rebutted the contentions raised by Shri K. C. Saxena. He contended that the sale deed dated 28th May, 1936 was not for legal necessity or for the benefit of the estate. The judgment in suit No. 39 of 1944 could not be res judicata in the subsequent suit No. 297 of 1945. The earlier suit was filed by the executants of the sale deed dated 28th May, 1936 and they could not challenge the said document except on the ground of fraud. The subsequent suit was filed by the non-executants coparceners of the joint family property who were entitled to challenge the transaction on the ground of want of legal necessity or the benefit of the estate. These grounds were not available to the executants of the sale deed who have filed the earlier suit No. 39 of 1944. Thus counsel contended that the nature and scope of the two suits were separate and Section 11, C. P. C. was not attracted. In case the parent section itself was not attracted, there was no question of applying Explanation VI of Section 11 to the facts of the instant case. Counsel also contended that the parties in the two suits were different. In this connection attention was drawn to the array of the parties in the two suits.
13. Shri Sankatha Rai next contended that the plea based on antecedent debt was not raised in the court below and the only point which was pressed was for the benefit of the estate. Counsel submitted that it was not open to Shri K. C. Saxena to raise questions such as estoppel etc. as there were no pleadings on the said question. Reliance was placed on : 2SCR154 , Gyarsi Bai v. Dhan-sukh Lal and : 2SCR310 , P. Ven-kata Subba Rao v. Jagannadha Rao. Shri Sankatha Rai also placed reliance on Ram Charan v. Bhagwan Das (AIR 1926 PC 68), Jai Narain v. Bechoo Lal : AIR1938All369 , Jagat Narain v. Mathura Das : AIR1928All454 and Mulla's Hindu Law, paras. Nos. 242, 243-A, 245 and 269.
14. The points which arise for determination are these :
1. Whether the lower appellate court was correct in holding that the impugned sale deed dated 28th May, 1936 was an imprudent transaction and as such not binding on the joint families in question.
2. Whether the judgment in suit No. 39 of 1944 would operate as res judicata in the subsequent suit No. 297 of 1945.
3. Whether the plaintiffs in suit No, 297 of 1945 were not entitled to institute the suit on the principles that they could not approbate and reprobate at the same time or on the ground that they had expressed their election in the earlier suit No. 39 of 1944 by affirming the sale deed dated 28th May, 1936 and it was not open to them to resile from the said earlier election in the subsequent suit.
15. So far as the first question is concerned, I feel that the lower appellate court was not justified in holding the transaction to be imprudent. The lower appellate court came to the said conclusion on the ground that the purchasers In the aforesaid sale deed dated 28th May, 1936 were not solvent parties and they were not in a position to pay the amounts which, they had undertaken to pay in the aaie deed to the creditors of the vendors. In this connection, the lower appellate court has discussed the evidence on the record. Ordinarily, such a finding would be a finding of fact binding in a second appeal. However, in the instant case the important point is that the plaintiffs in their suit No. 297 of 1945 did not raise the aforesaid plea and, therefore, no issue was framed on the said controversy and the parties did not go to trial on such controversy, A perusal of the plaint will show that while various grounds have been set out to contend that the impugned transaction was not for legal necessity or for the benefit of the estate, it was never either expressly or by implication, alleged that the purchasers were not solvent parties or did not have sufficient means to pay the secured or unsecured debts of the vendors which they had undertaken to pay in the terms of the deed. Unless such a plea was raised in the plaint questioning the solvency or the means of the purchasers, in my opinion, they were under no obligation to adduce evidence in support of their solvency or means to pay. The lower appellate court has referred to the statement of Mahadeo Singh, father of the purchasers, in support of its finding that the purchasers, namely, his sons did not have the necessary means. I think this approach is wrong. When the necessary pleadings were not there and no issue was joined between the parties on the said ground, it is not permissible to give any evidence on the said question. Such evidence has to be disregarded as laid down by the Privy Council. Moreover, the lower appellate court has not referred to any evidence on behalf of the plaintiffs of suit No. 297 of 1945 in support of the finding that the purchasers had no means to pay the debts in question. When the plaintiffs in the said suit did not lead evidence on the said point it was not for the purchasers-defendants to lead any evidence in rebuttal on the said question. In my opinion, in these circumstances the finding of the lower appellate court that the purchasers had no means to pay has to be set aside. It has already been stated above that both the courts below concurrently held that in the circumstances of the case the transaction was for the good and welfare of the joint families in question. In these circumstances, in my opinion, the plaintiffs' suit No. 297 of 1945 deserves to be dismissed because the impugned sale deed has to be held to be binding on the joint families inasmuch as it was for their benefit.
16. In view of the aforesaid finding it is really not necessary to enter into the other questions which have been raised in this litigation. However, since I have been addressed arguments on the said questions I am expressing my views on the same. In my opinion, if a traesac-tion of sale has been entered into on behalf of a joint Hindu family selling the joint family property then in case the managing members of the joint family as the vendors file a suit affirming the said transaction and to such a suit the minor members of the joint family are impleaded through their guardians, then it is open to the latter to question the transaction of sale. If they fail to do so then, in my opinion, they cannot be allowed to file a subsequent suit seeking to repudiate the sale transaction. The subsequent suit has to be held to be barred by the principles of res judicata. Explanation IV to Section 11 lays down as follows :
'Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.'
17. Explanation VI of the said section Is as follows :
'Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'
18. Reading these two Explanations along with the parent section, it seems to be that where a suit is filed affirming the sale transaction entered into on behalf of the joint family and to such a suit the minor members are also made parties (even though as in the present case they were described as pro forma defendants), it has to be held that the suit is on behalf of the entire joint family and the minors should be held to be bound by the verdict of the suit. As the minors are themselves parties to such a suit it is open to them to question the transaction. Indeed, they were bound to have raised a plea in defence that the transaction of sale, which was sought to be enforced by the plaintiffs, was not binding on the joint family being not for legal necessity or for the benefit of the estate. In terms of Explanation IV of Section 11 such a plea might and ought to have been made a ground of defence and, therefore, it would be deemed to be a matter directly and substantially in issue in such a suit. If the minors did not raise such a plea in the suit then they cannot be allowed to file a subsequent suit raising such a plea therein.
However, despite the aforesaid approach, so far as the facts of the present case are concerned, I have found it difficult to come to any definite conclusion in view of the fact that the trial court has made certain observations about the array of parties and about the fact that the earlier suit was not being prosecuted in a bona fide manner. The said court has further observed that the parties to the two suits are not the same and the subject-matter of the dispute also is not identical. It will be seen that there was not one joint family in the picture. In the plaintiffs' Suit No. 297 of 1945 it was said that there were 12 such joint families being branches from a common ancestor, Unless the array of the parties in the earlier suit be compared with the array of the parties in the subsequent suit and unless it be shown as to which of the 12 joint families were parties in the earlier suit and which of them are not parties in the instant suit, it is not possible to give any finding on the question of res judicata in the present case. I have, however, expressed my views on the general approach to the problem and I leave the matter there.
19. I am not entering into the third aspect of the matter which has been raised in the instant appeal.
20. In view of my aforesaid finding, this appeal and the revision have to be allowed. The judgment and decrees of the lower Appellate Court in Civil Appeal No. 6 of 1958 and in Civil Appeal No. 12 of 1959 of the said court are set aside. The trial court's judgment and decrees passed in original Suit No. 27 of 1945 and Original Suit No. 297 of 1945 are hereby restored. I make the costs of the second appeal and the connected revision easy.