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B. Shyam Lal and ors. Vs. L. Badri Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All789; 122Ind.Cas.744
AppellantB. Shyam Lal and ors.
RespondentL. Badri Prasad
Cases ReferredHanooman Peasaud Panday v. Mt. Babooee Munraj Koonweree
Excerpt:
- - it was alleged in the plaint that the father was of bad character and a vagabond who had been spending the income of the property for unlawful purposes. 575 had to be raised, and we are satisfied that it could only be raised by a sale. 2. in our opinion the plaintiff failed to establish his case that the sale by his father was not for legal necessity and can be challenged by his minor, son......had been spending the income of the property for unlawful purposes. it is also alleged that the sale deed is fictitious and without consideration. it was found by the court of first instance that the sale-deed was for rs. 1,000 of which the consideration is made up of rs. 525 paid to chandmal on account of certain prior mortgages; rs. 100 paid in advance and sections 375 paid before the sub-registrar for expenses incurred in connexion with certain ceremonies required by the hindu religion for the plaintiff himself and payment of other oral debts. the first court held that there was overwhelming evidence adduced on behalf of the defendants that the sale-deed was executed for legal necessity 'which consisted in paying off old debts and expenses for mundan ceremony of the plaintiff.....
Judgment:

1. This second appeal arises from a suit brought by a minor son of a Hindu for setting aside a sale of a house and a shop by his father Shankar Lal. It was alleged in the plaint that the father was of bad character and a vagabond who had been spending the income of the property for unlawful purposes. It is also alleged that the sale deed is fictitious and without consideration. It was found by the Court of first instance that the sale-deed was for Rs. 1,000 of which the consideration is made up of Rs. 525 paid to Chandmal on account of certain prior mortgages; Rs. 100 paid in advance and Sections 375 paid before the Sub-Registrar for expenses incurred in connexion with certain ceremonies required by the Hindu religion for the plaintiff himself and payment of other oral debts. The first Court held that there was overwhelming evidence adduced on behalf of the defendants that the sale-deed was executed for legal necessity 'which consisted in paying off old debts and expenses for mundan ceremony of the plaintiff himself.' In appeal the learned Additional District Judge reversed this order, and granted the plaintiff a decree on condition that he paid to the vendees a sum of Rs. 95 within 3 months. The main question to be decided in the case of this kind is whether the sale was for legal necessity, that is to say, was there a necessity for the sale of this property. In our opinion it was proved without doubt that a sum of Rs. 525 was actually due on the prior mortgages. This must be regarded as an antecedent debt and the learned Judge of the Court below was in error that he believed that he could go backwards, and find that the only sum due as an antecedent debt was the original sum due on a promissory note prior to the execution of the mortgages. The sum of Rs. 575 had to be raised, and we are satisfied that it could only be raised by a sale. As to the rest of the consideration we have the clear findings of the first Court that it was for legal necessity. The lower appellate Court finds that the sum of Rs. 375 was actually paid before the Sub-Registrar but he declines to give a clear finding as to whether it was for legal necessity or not; possibly his finding may be taken to suggest that he thought that there was no legal necessity, or, at any rate, there was only a necessity for the advance of a smaller sum which he does not specify, but in our opinion in view of the recent decisions of the Privy Council this point is irrelevant. If it is once conceded that the sale was for legal necessity it was not for the vendee to pursue each and every item of the consideration and ascertain how it was applied. We would refer in particular to the decision of their Lordships of the Privy Council reported in Srikrishna Das v. Nathu and their subsequent decision affirming that ruling and further explaining it, reported in Gaurti Shankar v. Jiwan Singh . These judgments merely interpret what Knight Bruce, L.J., said in the case of Hanooman Peasaud Panday v. Mt. Babooee Munraj Koonweree [1855] 6 M.I.A. 393 (at p. 424):

The purposes for which a loan is wanted are often future as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application.

2. In our opinion the plaintiff failed to establish his case that the sale by his father was not for legal necessity and can be challenged by his minor, son. We, therefore, allow this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs throughout.


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