1. On the question which has been referred to us by a Bench we are of opinion that in this particular case the sale should not be set aside but should be confirmed in favour of the purchaser. The consideration which is mentioned in the sale-deed is Rs. 5,995 and it is found that for only a sum of Rs. 259-15-0 out of this sum no legal necessity has been established. In our opinion this item is an insignificant sum which should be left out of consideration in deciding the question whether the sale should or should not stand. The sale was a sale of a 2 annas share out of a 5 annas 4 pies share and we have no reason to suppose that the precise sum for which legal necessity existed could have been realised by a sale of any less share than that of 2 annas.
2. We need not discuss the case law on the subject. The latest case to which we have been referred will be found in Daulat v. Sankatha Prasad 86 Ind. Cas. 91 : 47 A 355 : 23 A.L.J. 55 : L.R. 6 A.167 Civ. : (1925) A.I.R. (A.) 324. That refers back to recent decisions which are to be found in Jai Narasn Pande v. Bhagwan Pande 80 Ind. Cas. 1006 : 44 A. 683 : 20 A.L.J. 621 : (1922) A.I.R. (A.) 321 and Sanmukh Pande v. Jagaranath Pande 83 Ind. Cas. 838 : 46 A. 531 : 22 A.L.J. 417 : L.R. 5 A. 289 Civ. : (1924) A. 1. R. (A.) 708. The whole case-law on the subject has been referred to in one or other of these rulings. The only authority on which Mr. Shiva Prasad Sinha for the respondent relies is the case of Dwarka Ram v. Jhulai Pande 72 Ind. Cas. 134 : 45 A. 429 at p. 431 : 9 O. & A.L.R. 494 : (1923) A.I.R. (A.) 248. We do not wish to criticise the merits of that decision for we are satisfied that on the merits the decision was a perfectly correct one, if we may say so, but we are of opinion that there are certain expressions in the judgment which cannot be accepted literally and which are expressed too widely. We refer to the passage at page 432 Page of 45 A[Ed.] of the report which runs as follows:
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 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.
3. We do not think it is correct to say that if any part of the consideration, however insignificant, was invalid and not binding on the plaintiff, the plaintiff is entitled to have the sale set aside. On the contrary there is plenty of authority for the proposition that where the portion of the consideration for which no legal necessity can be proved is insignificant the sale will stand. That was laid down in the case of Girdhari Lal v. Kantu Lal 12 A. 321 : 22 W.R. 56 : 14 B.L.R. 187 : 3 Sar. P.C.J. 380 (P.C.) and the relevant passage of that judgment will be found quoted in the Bench decision reported as Jai Narain Pande v. Bgagwan Pande 80 Ind. Cas. 1006 : 44 A. 683 : 20 A.L.J. 621 : (1922) A.I.R. (A.) 321. Nor again do we think it is correct to say that the form of the decree in a suit of this kind which has always been maintained is the form by which the plaintiff is given a decree for possession subject to his paying to the purchaser so much of the consideration as was required for the necessities of the family. On the contrary there are cases in which the suit of the plaintiff has failed altogether, i.e. cases where the portions of the consideration money for which no legal necessity could be found were so inconsiderable as to be liable to be ignored.
4. Then only other matter upon which we are called upon to express an opinion is whether in the circumstances of this case the purchaser is liable to pay to the plaintiff a sum of Rs. 259-15-0 for which no legal necessity has been held to be established. In our opinion the vendee in this case ought not to be made liable to pay this sum. It seems to have been held that this amount was actually paid to the father of the plaintiff, and that being so, we can see no good reason why the vendee should be required to pay the money over again.
5. Let this answer be returned to the Referring Bench.
Mears, C.J. and Mukerji, J.
6. The facts of this case will appear from our order, dated 24th of June 1925, referring a point of law to a Full Bench. The point referred to is also stated in that order.
7. The Full Bench have now decided the point and have held that the sale impeached by the son, who was the plaintiff-respondent in this Court, should be upheld in its entirety without any condition attached to the decree.
8. We accordingly allow the appeal and dismiss the plaintiff-respondent's suit with costs throughout. The costs in this Court will include Counsel's fees on the higher scale.