1. This is a plaintiff's appeal arising out of a suit for pre-emption of property transferred under a sale-deed dated 3rd August 1925. The suit was instituted on 1st July 1926. During the pendency of the suit the Vendees obtained a share in the village from the vendor Sukhdeo under a deed which was ostensibly one of gift and was dated 3rd September 1926. A second suit for pre-emption was instituted to pre-empt the gifted property on the allegation that the transaction was really one of sale. The connected appeal arises out of that suit.
2. The first Court found that the ostensible gift was a colourable transaction, but at the same time it decreed the claim for pre-emption. The appellate Court has found that the gift was a transaction of gift and was neither fictitious nor was it a transaction of sale. We are bound by the finding of fact of the lower appellate Court. It has dismissed the suit on the ground that the vendee had become a cosharer on the same footing as the plaintiff by virtue of this gift.
3. In appeal it is contended before us that the gift was made by Sukhdeo of a share in his ancestral property when he had sons alive and was therefore invalid. It is accordingly contended that the defendants had not acquired such title as to enable them to defeat the plaintiff's claim. In a case where the purchaser has acquired an interest in the mahal prior to the institution of the pre-emption suit it is incumbent on him to establish that he has acquired an indefeasible interest (S. 20). The Full Bench in the case of Ram Saran Das v. Bhagwat Prasad : AIR1929All53 has held that 8. 20 does not apply to a case where the gift is taken after the institution of the suit; but that the same result follows by virtue of the provision of Section 19, and a purchaser who has become a cosharer by virtue of a gift taken during the pendency of the suit can successfully resist the plaintiff's claim for pre-emption. In view of this pronouncement it seems to us that such purchaser also must show that he has acquired an indefeasible interest otherwise an illogical result will follow, viz., that a purchaser who takes a gift before the suit would not be entitled to defeat the claim unless the interest taken is indefeasible, but a purchaser taking a gift during the suit need not show that he has acquired an indefeasible right. We have therefore to see whether the interest acquired by the purchaser is an indefeasible interest or whether it is defeasible.
4. Under the Hindu Law, with the exception of certain specified cases, a father cannot alienate family property except for legal necessity or in lieu of his antecedent debt. There can be no legal necessity for a gift in favour of a stranger when no questions of the gift being made to a near relation or at the time of marriage or for the purpose of conferring spiritual benefit or for religious purposes arise. Such a transfer is obviously without authority and can be upset as soon as it is challenged. The word 'indefeasible' has been explained in the case of Deonarain Singh v. Ajudhia Parsad : AIR1927All575 as meaning liable to be defeated and not necessarily that it has already been defeated. A gift by a Hindu father of joint family property when he is not the sole owner of it is prima facie invalid and the defendants cannot take advantage of it without showing that it has become valid in consequence of the consent of all the other members of the family and that no such member is a minor. In the absence of such proof the gift must be deemed to have been invalid.
5. Although the word 'indefeasible' cannot be taken in its widest sense so as to include transactions which have a possibility of being challenged, for instance on grounds of undue influence, coercion, fraud etc., it undoubtedly means that on the obvious facts the transaction must confer a valid title on the transferee. This is not the case here.
6. We would therefore hold that the defendants had not by virtue of this gift acquired an indefeasible interest so as to extinguish the plaintiff's subsisting right of pre-emption at the time of the first Court's decree. The first Court had found that the donor Sukhdeo had sons who were entitled to this property. This finding was not challenged by the defendants in their grounds of appeal before the District Judge. They are therefore not entitled to have the question of supposed consent of the sons determined by the lower appellate Court. The result therefore is that we allow this appeal and setting aside the decree of the lower appellate Court restore that of the Court of first instance with costs in all Courts including in this Court, fees on the higher scale. We extend the time for payment up to six weeks from this date. If the plaintiff fails to deposit the amount within the time allowed, his suit will stand dismissed with costs in all Courts including in this Court, fees on the higher scale.