1. This is an appeal by the defendants arising out of a suit for possession of the zamindari property in mauza Masgawan, district Hamirpur, and also for mesne profits on the following allegations. The plaintiffs and their deceased father Piare were members of a joint family. Piare had contracted a debt and the family was in involved circumstances. Piare applied, to the Commissioner under Section 6, Bundelkhand Encumbered Estates Act (Act 1 of 1903, Local), that the provisions of this Act be applied to him. The provisions of the Act were applied, and the Commissioner directed an enquiry to be made by the Special Judge, and the latter duly published a notice to all claimants in accordance with the provisions of Section 9 of the Act.
2. On the 2nd September 1911 Piare entered into an agreement with Durga, father of defendants 1 and 2, to sell the property in suit to him for a sum of Rs. 1,300. After this Piare appears to have changed his mind, and he sold the property to defendant 3, Sigdar, on 17th November 1911, for an ostensible sum of Rs. 2,500. Thereupon Durga sued Piare and Sigdar for specific performance of the contract dated 2nd September 1911. This suit was instituted on 19th March 1912 and was decreed on 27th July 1912. On 23th December 1912 an appeal, was preferred but it was dismissed on 12th November 1013. A sale-deed was executed through the Court on 21st March and it was compulsorily registered on 16th May 1914. In the meanwhile, on 16th May 1914, the Commissioner, under Section 28 of the Act, declared that Piare had ceased to be subject to the disability mentioned in S 10, Sub-section 2, aforesaid Act. Piare, the father of the two plaintiffs, and Durga, father of defendants 1 and 2, were dead on 17th November 1923 when the present action was commenced.
3. The plaintiffs sought to recover possession of the property which had passed out of the family by reason of the enforcement of the contract to sell, which had been entered into by the plaintiffs' father on 2nd September 1911. The plaintiffs challenged the sale-deed on the following grounds that it was executed without consideration, without any legal necessity, and that both the contract to sell and the consequential sale were void under Section 10, Sub-section 2 Bundelkhand Encumbered Estates Act.
4. Defendants 1 and 2 contested the claim on the grounds that the plaintiffs were not the legitimate sons of Piare, that the sale was not for consideration, that it was made to discharge antecedent debts and for the benefit of the family, that the suit was barred by the rule of res judicata, and that at the time of the decree for specific performance, and also at the time of the completion of the sale, Piare was no longer subject to the provisions of the Act, and, therefore, the sale did not contravene any provision of the said Act.
5. The Court below held that the plaintiffs are the legitimate sons of Piare, that the sale was made for consideration and legal necessity, that the defendants were not entitled to raise the plea of res judicata and that the suit was not barred by Section 11, Civil P.C. The Court, however, hold that on 2nd September 1911, Piare was absolutely disqualified, not only to sell, but to enter into an agreement to sell the property, that the said agreement was void ab initio and could not be ratified by the subsequent cessor of disability, and that the sale was a nullity and not binding upon the plaintiffs. It further held that the Court had no jurisdiction to entertain the suit for specific performance in contravention of the provision of Section 10, Sub-section 2, Clause (b) of the Act. The disability ceased on 17th September 1913. A decree for specific performance was passed on 27th July 1912 when the disability had not ceased. The Court, therefore, did not possess the legal competency to entertain the suit either on the date of the institution of the suit, or on the date of the passing of the decree. An appeal was preferred on 28th August 1912. On this date the disability of Piare had not terminated. The appellate Court by affirming the decision of the primary Court could not clothe it with a legality that it did not possess. It is on this finding that the learned Subordinate Judge has decreed the plaintiffs' suit for possession and for mesne profits for three years at the rate of Rs. 100 per year.
6. Defendants 1 and 2 appealed. The plea that the plaintiffs were not the legitimate sons of Piare has been challenged in the grounds of appeal but has not been pressed.
7. On 7th April 1921 Durga, the father of defendants 1 and 2, appears to have sued Piare, the father of the plaintiffs, for arrears of rent, treating him as an ex-proprietary tenant of a certain holding appertaining to the zemindari property in dispute. It is alleged that Piare not having contested the suit on the ground that the sale in favour of Durga was a nullity in view of Section 10, Sub-section 2, Bundelkhand Encumbered Estates Act, the plaintiffs were precluded from challenging the sale-deed on the ground that the matter could be agitated by Piare himself under Section 11, Expl. 4, Civil P.C., and that the present plaintiffs were also precluded from attacking the sale-deed on that ground because the suit against Piare was a representative suit.
8. The defendants did not produce the necessary materials to support the contention of res judicata. Certified copies of the pleadings and the judgment and decree in the rent suit were not filed. The record of that suit, however, was called for by the trial Court to enable the plaintiffs to prove from an admission of Durga himself, contained in a certain document marked as Ex. 10, that the plaintiffs were the legitimate sons of Piare. The defendants asked the Court that the judgment and the decree of the rent suit be copied and placed on the record. This application was made at a very late stage of the suit, and the Court was perfectly justified in not acceding the request. One of the present plaintiffs was no party to the suit for rent, and there was not a scintilla of evidence on the record to prove that the rent suit was directed against the plaintiffs to that suit in a representative capacity. In the absence of evidence to show that the plaintiffs in the rent suit had been sued in a representative capacity with reference to acts done which were beneficial to the family and binding upon those members, it would be most unsafe to hold that the other members of the family should be saddled with the consequences of the said suit. The present plaintiffs, however, did not derive their title to the property from their father but had an independent title from the date of their birth in the joint family property. Under the circumstances I hold that the suit is not barred by the rule of res judicata.
9. The appellants have mainly centered their attack on the finding of the learned Subordinate Judge that the sale-deed in favour of Durga was void by the application of Section 10, Sub-section 2, Sub-Clause A and B of the Bundelkhand Encumbered Estates Act. It is contended that Sub-section 2, Clause (1), does not disqualify a proprietor from entering into an 'agreement to sell his proprietary rights without the consent of the Commissioner, and that if a disqualified proprietor enters into a contract to sell during the pendency of his disability the contract could be enforced upon the cessation of the disability, and that the sale-deed in the present case having been obtained in execution of the appellate decree, which was admittedly passed when the disability had ceased, it was a valid sale-deed and was binding upon the plaintiffs. It was further contended that a suit for specific performance of a contract is a suit against the right of a proprietor in respect of a private debt contracted by him after the publication of the notice under Section 9 of the Act, and that, therefore, the decree for specific performance was passed by a Court having jurisdiction. There can be no doubt that under Section 10, Sub-section 2, Cl.(a), a proprietor is absolutely disqualified from selling his property without the consent of the Commissioner. It follows from this that he is equally prevented from entering into any agreement to sell without the consent of the Commissioner. An agreement to sell is an initial step in a transaction which terminates in a sale and it is inseparable from it. It cannot be argued that during the pendency of a disability such an agreement can be specifically enforced. No Court of law would be justified in entertaining a suit for specific performance of an agreement to sell the interests of a disqualified proprietor during the pendency of the disability. An agreement of this description is opposed to public policy and as such is not enforcible in law. It has been provided in Section 2, Clause (g), Indian Contract Act, that an agreement not enforcible by law is void. There can be no doubt, therefore, that this agreement, which formed the basis of a subsequent suit for specific performance, was unenforcible by law and was void ab initio.
10. It is to be noticed that when the suit for specific performance was launched, the disability had not come to an end and on the date when the decree was passed by the primary Court the disability continued. Therefore, the decree was based upon a cause of action which was unlawful, which offended against public policy, and the decree, therefore, could not bind the plaintiffs as regards the joint ancestral property. It cannot be argued that the agreement lends itself to the construction that it was an agreement to transfer property specified therein at the termination of a disability. If the agreement be construed that way, even then it does not advance the case of the defendants, because an agreement of this description is unlawful and unenforcible.
11. A void agreement cannot be ratified by an act of the Court. The execution and compulsory registration of a sale-deed in enforcement of a void agreement is, therefore, of no legal effect. To allow a party to institute a suit upon a void agreement, after the termination of a disability, would be opposed to recognized judicial principles. There is no legal process whereby an agreement which was void, could be developed into a legal contract. It must be held that the defendants, by virtue of the sale-deed executed in favour of their father, acquired no rights in the property in dispute. The sale cannot be legally disassociated from the decree for specific performance. The sons do not impugn the sale on the ground of immorality, and they have failed to establish that the sale was without legal necessity. But there is nothing to preclude the sons from challenging the legality of the sale on the ground that their father was legally incompetent to transfer the property in contravention of Section 10, Sub-section 2, Clause (a). The fact that the property had passed out of the family did not limit the right of the sons to controvert the validity of the sale-deed merely upon the ground of immorality on the part of the father. The right to challenge the sale-deed on the ground that the father could not by reason of his disability sell the property was unquestionably open to them.
12. In this view I hold that the sale-deed in dispute contravenes the provisions of Section 10, Sub-section 2, Clause (a), referred to above.
13. The lower Court has held that under Section 10, Sub-section 2, Clause (b), the suit for specific performance of the agreement to sell was not cognizable by any civil Court during the continuance of the disability. An elaborate argument has been addressed to us by Mr. Peary Lal Banerji in support of the view of the lower appellate Court. It is doubtful whether a suit to enforce a right to specific performance can be treated as a suit against the rights of a proprietor in respect of a private debt contracted by him. It is true that the sale was for satisfaction of a private debt, but the suit was not directed against the property in enforcement of a private debt. Without, however, going into this question I would uphold the decision of the Court below on the other ground which has been already dealt with.
14. Out of the sale consideration, Rs. 100, which was paid by way of earnest-money, did not constitute an antecedent debt. The finding of the lower appellate Court is that the whole of the balance, namely, Rs. 1,200, was borrowed either to pay antecedent debts or for legal necessity. This finding is not impugned by the other side. I hold that inasmuch as the sale-deed was executed to satisfy debts which were binding upon the family, the sons in the present action could not impeach the sale-deed without being put upon such terms as the equities of the case call for.
15. I hold, therefore, that the decree for possession as passed by the Court below be maintained subject to this condition, that the plaintiffs pay Rs. 1,200 to defendants 1 and 2 within three months from the date of our decree. In view of the fact that the sale was executed in discharge of debts which were binding upon the family, I do not think that the Court below was justified in passing a decree for mesne profits in favour of the plaintiffs. I accordingly discharge this part of the decree.
16. The result is that I would allow the appeal in part to the extent indicated above.
17. The appellants before this Court are the sons of a transferee Durga, who obtained a sale-deed from the father of the plaintiffs-respondents on 21st March 1914. The sons of Piare brought the suit, out of which this appeal has arisen, to recover the entire property sold on the following allegations: They said that the sale was made by the father when he was under a disability to effect it under the provisions of the Bundelkhand Encumbered Estates Act (Act 1 of 1903), that the sale was without legal necessity and for a value which was much below the market value of the property. The defence was that the sale was a good one and it was executed for legal necessity, and is, therefore, binding on the plaintiffs. The learned Subordinate Judge found on the question of legal necessity that the sale was supported by it. On the question whether the father was under a disability to execute the sale-deed, the learned Judge held that he was. He held that the sale was null and void so far as the plaintiffs were concerned, and he decreed it.
18. In this Court the defendants have tried to controvert the decree of the Court below on substantially three grounds. The first ground is that the sale is not illegal, the second ground is that the sons, at any rate, cannot challenge the sale without establishing that there was no legal necessity for the sale or that the consideration was tainted with immorality, and, lastly, that in any case the sons cannot succeed without refunding the sale price.
19. The first question is to be decided by taking into consideration certain fasts which are as follows:
20. When the Bundelkhand Encumbered Estates Act came into force, Piare applied for relief under the provisions of that Act. Under Section 10, Bundelkhand Encumbered Estates Act, Clause 2, the proprietor, that is to say, Piare was incompetent to exchange, give, or without the consent of the Commissioner, sell, mortgage or lease his proprietary rights in the land or any part thereof. While he was admittedly under this disability, he contracted with Durga to sell the property in question, on the 2nd September 1911. The disability of Piare was removed on the 17th September 1913. Although Piare agreed to sell the property and received earnest-money, he did not execute the document of sale. On the other hand, he proceeded to sell the property to one Sigdar, who has been made a defendant in this suit, though unnecessarily. Thereupon Durga brought a suit for specific performance of contract against both Piare and Sigdar. This suit was instituted on the 19th March 1912. It was successful throughout although there was an appeal against the decree of the Court of first instance. The appeal was dismissed on the 12th November 1913, after the disability of Piare had ceased. When the appellate decree was passed, Piare executed a sale-deed in the terms agreed upon but refused to register the document. The document was compulsorily registered by the order of the Court on the 16th May 1914. Thus, we find, that the sale-deed in question was actually executed after Piare's disability had ceased, but the sale-deed was executed in pursuance of an agreement which was entered into while the disability existed.
21. The question then is whether the sale-deed should be treated as having been executed under a disability. I am clearly of opinion that we cannot separate the sale-deed from the agreement to sell. I need not consider what would have happened if the agreement had been to the effect that Piare would sell the property after his disability ceased. That question has not arisen and I am not going to answer it. In the present case Piare agreed to sell the property at once, and as a man of his word he ought to have executed the sale-deed then and there. Instead of doing what he had agreed to do, he transferred the property to a third party, with the result that the agreement had to be put into force through the agency of the Court.
22. In my opinion it must be taken that the sale followed the agreement, and for its validity it must date back to the date of the agreement. The mere fact that there was a delay in the working of the machinery of the Court, and in the meanwhile the disability ceased, should he of no avail either to Piare or Durga. In this view, which I take of the circumstances under which the sale-deed was executed, it is not necessary for me to consider the other provisions of the Bundelkhand Encumbered Estates Act.
23. The second question is whether the sons can impeach the sale. There can be no doubt that the decree stands good as against Piare. Piare was bound to raise the question of his disability in the course of the suit that was brought against him. He did not raise the question and he is precluded from raising it again. The Court was not deprived of the jurisdiction to hear the suit simply because Piare was under a disability to sell his property. There is no prohibition against a Court taking cognizance of a suit to enforce an agreement like this to sell. The Court having jurisdiction, the decree stands good as against Piare. It is contended that the decree being as against Piare, Piare was bound to execute the sale-deed, and that, therefore, the sons have no right to impeach it.
24. The sons' position is this. They are as much the owners of the property as their father, the property being ancestral. They say that the descendants of Durga are trespassers and they are in possession as trespassers. The title is with the sons, and unless Durga's sons can show a better title, they are bound to be ejected. Durga's sons have relied on a sale-deed which is bad against all except Piare and Sigdar. It is not possible, therefore, for the vendee's sons to rely on the sale-deed. If the sale-deed had stood good in the eye of the law, the further question would have arisen whether it was executed for legal necessity. The stage at which the question of legal necessity could be gone into does not arise where the sale itself is bad in law. The learned Counsel for the appellants has argued that under the famous ruling of their Lordships of the Privy Council (Girdhari Lal's case), the sons could impeach the sale only on the ground of immorality, and that, as the Court in this case has found that there were antecedent debts of the father, the sale must stand. But in the case before their Lordships no question as to the validity of the sale itself arose, apart from the question of its binding character as against the sons. The sale in the present case being prohibited by law is not binding on the sons. The respondents, therefore, must succeed.
25. Coming to the third point: it seems to me to be perfectly clear that the sons cannot obtain possession of the property without refunding the appellants' money so far as they have been benefited by it. The parties admit that the plaintiff's have been benefited to the amount of Rs. 1,200.
26. The result is that I would allow the appeal in part and would subject the decree passed by the Court below to the condition of payment of Rs. 1,200 by respondents 1 and 2. There will be no decree for mesne profits as the possession of the appellants must be held to be good till the payment of the sum of Rs. 1,200 to them. I would, therefore, further modify the decree of the Court below by expunging the order as to the payment of mesne profits.
27. The decree of the Court below is modified in this way: that the claim for mesne profits will stand dismissed. The claim for possession will be subject to this condition: that the plaintiffs pay to defendants 1 and 2 the sum of Rs. 1,200 within three month of this date. In case of default of payment, the suit will stand dismissed with costs throughout. In case of payment, the plaintiffs shall receive three-fourths of their costs throughout, and the contesting respondents shall receive one-fourth of their costs throughout.