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Dwarka Ram and ors. Vs. Jhulai Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported inAIR1923All248; (1923)ILR45All429
AppellantDwarka Ram and ors.
RespondentJhulai Pande and ors.
Excerpt:
hindu law - joint hindu family--sale of family property only in part supported by legal necessity--suit to recover property from vendee--form of decree. - - but if a portion of the consideration was good and binding on the plaintiff, he would be entitled to reimburse it to the defendant......that jai gobind singh should pay to the plaintiff rs. 200. which was found not to have formed valid consideration for the sale inasmuch as it was not required for family necessity. according to the findings rs. 1,200 out of the rs. 1,400 was for family necessity. therefore, out of the consideration, for half the property rs. 600 was required for family necessity and is to be deemed to be valid consideration for the sale. as, however, a part of the consideration was not valid the plaintiff would be entitled to a decree for possession subject to his reimbursing to the purchaser the amount in respect of which the sale was a valid sale. if any part of the consideration was invalid and not binding on the plaintiff, the plaintiff would be entitled to have the sale set aside. but if a.....
Judgment:

Grimwood Mears, C.J. and Pramada Charan Banerji, J.

1. This was a suit brought by the son of a vendor who sold certain property for Rs. 1,400. A claim for pre-emption was put forward in regard to this property and the property was pre-empted by the defendant Jai Gobind Singh. The court below has found that half of the property sold by the plaintiff's father was non-ancestral property and the claim, has therefore been dismissed as regards that half. As regards the remaining half the learned Judge of this Court has made a decree to the effect that Jai Gobind Singh should pay to the plaintiff Rs. 200. which was found not to have formed valid consideration for the sale inasmuch as it was not required for family necessity. According to the findings Rs. 1,200 out of the Rs. 1,400 was for family necessity. Therefore, out of the consideration, for half the property Rs. 600 was required for family necessity and is to be deemed to be valid consideration for the sale. As, however, a part of the consideration was not valid the plaintiff would be entitled to a decree for possession subject to his reimbursing to the purchaser the amount in respect of which the sale was a valid sale. If any part of the consideration was invalid and not binding on the plaintiff, the plaintiff would be entitled to have the sale set aside. But if a portion of the consideration was good and binding on the plaintiff, he would be entitled to reimburse it to the defendant. The form of the decree in a case of this kind should, therefore, be a decree for possession in favour of the plaintiff, subject to his paying to the purchaser so much of the consideration as was required for the necessities of the family. This is the form of the decree in a suit of this kind which has always been maintained. In the present case the plaintiff is entitled to a decree for half of the property on condition of his paying Rs. 600 which, as we have said above, was required for family necessity in respect of half the property. We, therefore, vary the decree of this Court and make a decree in the plaintiff's favour for possession of the property claimed by him, on condition that he pays to Jai Gobind Singh defendant Rs. 600 within six months from this date, otherwise the claim will stand dismissed with costs. The appellant will have his costs of tins appeal.


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