1. We think the Courts below are right and this appeal must fail. The facts are those : Chhabbe Mal, the father of the defendants executed a sale-deed on the 6th of November 1902 in favour of the plaintiffs Bansidhar and Ram Dayal and their father Sanwal Das. The sale comprised zamindari property and arrears of profits for the years 1308 and 1309 Fasti, alleged to have been due by Ram Ghulam the lambardar. The sale-deed contains this recital: 'If through any act on my part the vendees sustain any loss in regard to the profits, I shall make good the loss with legal interest from my person and every kind of property.' The plaintiffs brought a suit against the lambardar for the profits sold to them; but their suit was dismissed on the 16th of October 1903 on the ground that the profits had been collected by one Dhunni Mal who was the agent for the vendor and the lambardar and that the lambardar had not received more than his share of the profits. This decree of the Court of first instance was confirmed in appeal. Thereupon, the suit out of which this appeal has arisen was brought by the plaintiffs for recovery of the profits for the years 1308 and 1309 Fasti, of the costs incurred by them in the suit in the Revenue Court and the amount paid by them as costs awarded to their opponent the lambardar. The Court of first instance made a decree in the plaintiffs' favour for the amount of consideration for the sale of the profits and for the costs incurred by them in the litigation in the Revenue Court. This decree has been affirmed by the lower appellate Court, Hence this appeal.
2. It is contended that the plaintiffs ought to have exhausted their remedy against Dhunni Mal and were not entitled to maintain the present suit. We are unable to agree with this contention. The father of the defendant made a representation to the vendees in the sale-deed that profits were due to him by Ram Ghulam the lambardar, who, it was alleged, had made collections. No right was conferred on the plaintiffs to recover any debt due by Dhunni Mal to the vendor. Therefore, the plaintiffs could not sue Dhunni Mal for the profits which were sold to them. As the profits sold were found not-to be due to the plaintiffs' vendor there was a failure of consideration as regards the sale of the profits, and, therefore, apart from the covenant in the sale-deed by which the vendor undertook to recoupe any loss which the vendees might sustain, the latter were entitled to sue for a refund of the money paid, as price of the profits sold on the ground of failure of consideration. In our opinion, therefore, the first ground of appeal has no force.
3. The second ground is equally untenable for the reasons we have already stated. We are also of opinion that the other pleas in appeal carry no force. This was not a case of embezzlement or misappropriation by the father of the defendants. It has been found that he and the defendants were members of a joint family. He sold property belonging to the joint family and a debt alleged to be due to that family. The consideration for the sale came to the use of the members of the joint family and was appropriated by the defendants also. As under the sale the purchasers of the profits acquired nothing, they are entitled to a refund of the sale price by which the members of the joint family have all benefited. The defendants, therefore, cannot claim exemption from liability.
4. For these reasons we dismiss the appeal with costs.