Skip to content


Bandhu Ram and anr. Vs. Ram Kishun Sonar and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All535; 73Ind.Cas.1010
AppellantBandhu Ram and anr.
RespondentRam Kishun Sonar and anr.
Excerpt:
.....necessity for these transfers by safe, it must be held that they were not alienations which could be justified under the hindu..........which were made in regard to a case of mortgage apply with equal, if not greater, force to a ease of sale.9. as the learned counsel for the respondents points out there is nothing whatever to show that there was any immediate pressure upon jangli at the time he executed these sale-deeds. the mortgage debt which forms the bulk of the consideration was not to fall due till the 30th august 1920, that is, two years and some months subsequent to the date of the sales, and the mortgagee could not have been insisting upon payment of his debt then for he had no right to do so.10. in the absence then of proof of any compelling necessity for these transfers by safe, it must be held that they were not alienations which could be justified under the hindu law. there is also the further.....
Judgment:

1. The Plaintiffs in the four suits which have given rise to these appeals are the sons of Jangli Sonar who was impleaded as the third defendant. The suits were brought to set aside four transactions of sale carried out by Jangli in favour of the other defendants to the suits on the allegation, among others, that there was no legal necessity for them.

2. The Court of first instance decreed the claims subject to payment of certain sums which in its opinion were binding debts for which the plaintiffs were liable. The lower Appellate Court, though differing from the First Court in respect of some of its findings, affirmed the decrees in all four suits. It is argued in second appeal that on the findings arrived at by the District Judge he ought to have held that all four transfers were for legal necessity and ought, in consequence, to have dismissed the suits.

3. The four sale-deeds were for a total consideration of Rs. 4,799-15-0, made up of the following items:

(a) Rs. 4,100 left for payment to one Sheo Saran Sahu on account of his mortgage dated the 14th August 1915;

(b) Rs. 249-15-0 due in respect of a promissory-note of the 15th August 1917.

(c) Rs. 50 paid in cash to the vendor prior to registration; and

, (d) Rs. 400 paid to one T3iks for repairs of a house belonging to the family.

4. The learned Judge has found that all these sums except the item (c) of Rs. 50 represent debts which were properly incurred and were binding upon the joint family. But he has notwithstanding, upheld the judgment of the First Court on the ground that although there were in existence at the time of the sales now complained of these debts which bound the family estate, the sales should not be allowed to stand because the vendor was careless and did not take due precautions with regard to the terms of the sales. He refers to the following facts: first, that a sum of Rs. 4,100 'was allowed to remain in the hands of the purchasers although the debt could not be called in by the mortgagee till the 30th August 1920 (the sale took place in 1918) the result of this according to the learned Judge, was to. cause loss to the family represented by the interest which might have accrued to them, had the money been handed over to Jangli at the time of the sales. In the second place, he found Jangli guilty of negligence in not providing that the purchasers should combine in order to offer the mortgage-money in a lump sum and in not making an arrangement with the mortgagee for the acceptance of the mortgage-money before the due date. The Judge thought that these omissions were calculated to involve the family in expensive litigation. He concludes by saying that the deeds 'were entirely apart' from the pecuniary interest of the family, meaning presumably that the sale transactions instead of being beneficial were prejudicial to the family.

5. The reasoning of the Judge is not altogether clear but we take it that he meant to find that, although there were binding debts, the scheme which Jangli adopted for their liquidation was not a prudent one.

6. It is argued, however, that the sales ought to have been upheld on the ground that the Judge hid found that the whole consideration, except the sum of Rs. 50, was applied or to be applied to the discharge of debts which were legally Winding.

7. But in order to justify an alienation made by the father it is not sufficient in law to show that at the time of the alienation debts binding upon the family were outstanding. It must further be shown that the alienation had to be undertaken under the pressure of a present necessity for the discharge of the debts. As was pointed out in the well-known case of Hanuman Prasad Pande, the power of a limited owner to charge the estate cm only be exercised rightly in case of need or for the benefit of the estate.

8. The actual pressure on the estate, tha danger to be averted or the benefit to be conferred upon it in the particular instance is the thing to be regarded. These observations which were made in regard to a case of mortgage apply with equal, if not greater, force to a ease of sale.

9. As the learned Counsel for the respondents points out there is nothing whatever to show that there was any immediate pressure upon Jangli at the time he executed these sale-deeds. The mortgage debt which forms the bulk of the consideration was not to fall due till the 30th August 1920, that is, two years and some months subsequent to the date of the sales, and the mortgagee could not have been insisting upon payment of his debt then for he had no right to do so.

10. In the absence then of proof of any compelling necessity for these transfers by safe, it must be held that they were not alienations which could be justified under the Hindu Law. There is also the further consideration that the Court below finds that the sales cannot be held to have been made for the benefit of the joint family. We hold, therefore, that no ground has been established for interference with the lower Court's judgment and we dismiss these appeals with costs including in this Court fees on the higher scale.


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