Skip to content


ishdak Tewari and anr. Vs. Tameshar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in79Ind.Cas.296
Appellantishdak Tewari and anr.
RespondentTameshar and ors.
Cases ReferredPeare Lal v. Sunder Singh
Excerpt:
.....of the court below that earn murat has no cause of action to contest the sale, but this result follows clearly from the second finding referred to above. they urge that the fact of parmeshwar dutt executing a hypothecation-bond to pay oft a previous mortgage executed by mukat nath, and then both brothers joining in a sale-deed to finally clear off the transaction is sufficient to raise a strong presumption that the transactions were really entered into by both brothers for purposes which would justify the alienation......in the understanding of the case: naipal | ___________________________________ | | parmeshwar dutt mukat nath | | ram murat ________________ | | ish dutt asharfi dult pltff. pltff. (age 8)2. the trial court dismissed the suit altogether. the lower appellate court dismissed the appeal of earn murat but allowed that of ish dutt in respect of one item of the sale consideration. the plaintiffs appeal and the defendants have filed cross-objections. the lower court's findings of fact are:(1) that the family was joint when the sale was executed.(2) that a separation took place on the very next day after the date of the sale-deed.(3) that ish dutt's age was 20 at the time of suit.3. the third finding is interpreted by both parties as meaning that ish dutt was alive at the execution of.....
Judgment:

Daniels, J.

1. In this case the plaintiffs appellants, Ish Dutt and Ram Murat, seek to set aside a sale-deed of joint family property executed by their respective fathers Mukat Nath and Parimeshwar Dutt on 28th May 1901 as having been made without legal necessity.

2. The following pedigree will assist in the understanding of the case:

Naipal

|

___________________________________

| |

Parmeshwar Dutt Mukat Nath

| |

Ram Murat ________________

| |

Ish Dutt Asharfi Dult

Pltff.

Pltff. (age 8)

2. The Trial Court dismissed the suit altogether. The lower Appellate Court dismissed the appeal of Earn Murat but allowed that of Ish Dutt in respect of one item of the sale consideration. The plaintiffs appeal and the defendants have filed cross-objections. The lower Court's findings of fact are:

(1) That the family was joint when the sale was executed.

(2) that a separation took place on the very next day after the date of the sale-deed.

(3) that Ish Dutt's age was 20 at the time of suit.

3. The third finding is interpreted by both parties as meaning that Ish Dutt was alive at the execution of the deed but that the suit was filed within three years of his attaining majority and is, therefore, within, time. From the second finding it follows that, there being no longer any joint family in existence, each plaintiff can only sue to recover his own separate share. This is clearly the case, and the ground of appeal which was taken on this point has not been pressed. The Appellants contest the finding of the Court below that Earn Murat has no cause of action to contest the sale, but this result follows clearly from the second finding referred to above. Earn Murat was only eight years of age when the suit was filed in 1921. He was, therefore, born in the year 1913. At that date there was no community of interest between Parmeshwar Dutt and the branch of Mukat Nath, and the only property in which the plaintiff could acquire an interest by birth was the separate and ancestral property of his father Parmeshwar Dutt as it stood on the date of his birth. The plaintiff could not claim the benefit of any cause of action Ish Dutt might have, seeing that Ish Dutt belonged to a family which had separated from that of the plaintiff's father ten years before. The principle laid down in Bhup Kunwar v. Balbir Sahai 64 Ind. Cas. 885 : 44 A. 190 : 19 A.L.J. 978 : (1922) A.I.R. (A.) 342 does not apply, and the ordinary rule applies that he is not entitled to challenge a transaction made before his birth. The only property in which he acquired interest was his father's property as it stood on that date.

4. It remains only to consider the case of Ish Dutt. The respondents in their grounds of objection challenge the finding as to Ish Dutt's age but at the hearing this plea has been abandoned. They have, indeed, contested Ish Dutt's right to sue on the ground that his elder brother Asharfi Dutt attained majority more than three years before the suit and, therefore, presumably became manager of the family and capable of giving a valid discharge. There is authority of other High Courts in support of this view, but the Courts below followed, as they were bound to do, and as I sitting as Single Judge must also do, the reported ruling of this Court in Ganga Dayal v. Mani Ram 1Ind. Cas. 824 : 31 A. 156 A.L.J. 62 I may remark, however, that the authority of this case is somewhat shaken by the ruling in Achhaibar Singh v. Ram Sarup Singh 19 Ind. Cas. 645 : 35 A. 380 : 11 A.L.J. 463. The consideration for the sale-deed in suit was Es. 1683, consisting of:

(1) Rs. 396-12-0, due on a hypotheoationbond of 17th January 1895 executed by Mukat Nath.

(2) Rs. 1,085-6-9, due on a hypothecation-bond of 26th August 1897 executed by Mukat Nath.

(3) Rs. 201-4-0, due on a hypothecation-bond of 2nd May 1901 executed by Parmeshwar Dutt.

5. The third item was borrowed for the expenses of a suit brought by the mortgagee on the basis of the hypotheoationbond which forms item No. 1. As the first two debts were incurred by Mukat Nath long before the transaction is suit, and indeed long before the plaintiff's birth, they constituted antecedent debt and the plaintiff Ish Dutt has no right to challenge them. On this point there can be no controversy. As regards the third item, the learned Judge holds that as the debt was incurred by the plaintiff's uncle Parmeshwar Dutt it is for the defendants to establish legal necessity which they have not done.

6. This part of the finding is challenged by the defendants in their cross-objections. They urge that the fact of Parmeshwar Dutt executing a hypothecation-bond to pay oft a previous mortgage executed by Mukat Nath, and then both brothers joining in a sale-deed to finally clear off the transaction is sufficient to raise a strong presumption that the transactions were really entered into by both brothers for purposes which would justify the alienation. The two brothers were the only adult male members of the family at the time and there was no one else in the family except Mukat Nath's two sons, one of whom was only nine years old and the other must have been an infant in arms. The original debt was incurred in 1895, 27 years before the suit. This is a case for the application of the principle laid down by their Lordships of the Privy Council in Vmkata Beddi v. Rani Saheba of Wadhwan 55 Ind. Cas. 538 : 47 I.D. 6 : 38 M.L.J. 393 : 11 L.W. 451 : 18 A.L.J. 367 : (1920) M.W.N. 315 : 22 Bom. L.R. 541 : 2 U.P.L.R. (P.C.) 77 : 43 M. 511 : 28 M.L.T. 457 and applied by this Court in Peare Lal v. Sunder Singh, 68 Ind. Cas. 805 : 20 A.L.J. 658 : 44 A. 756 : (1922) A.I.R. (A.) 436 that in the case of old transactions full and detailed evidence is not to be expected, and that it is permissible to fill in the details by reasonable presumptions. It is true that in the Privy Council ease the transaction was 82 years old but in the case of a transaction nearly 30 years old it is also true that full and detailed evidence as to the circumstances is not to be expected, and the fact that both brothers accepted responsibility for the debt was sufficient, in my opinion, to raise a presumption that the transaction was valid. There is absolutely nothing to rebut that presumption. In this view I need not consider the last ground of appeal which is that the decree framed by the Court below is uninteligible.

7. I accordingly dismiss the appeal and, allowing the cross-objections, modify the decree of the Court below and dismiss the suit with costs in all Courts. The respondents will get their costs in this Court both of the appeal and of the cross-objections. Costs in this Court will include fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //