K.L. Bapna, J.
1. This is a second appeal by the plaintiff in a suit for recovery of money.
2. The plaintiff Hiralal and one Ram Chandra were vendees of a certain property sold by Kishanlal on 28-6-1938, for a sum of Rs. 1150/-. On the 9th of July, 1938, Jagdish instituted a suit on the allegation that he was the adopted son of Kishan Lal, and the property was ancestral property, and that the sale had been made without any legal necessity, nor for an antecedent debt. That suit had a chequered career, but the final decision oE the High Court of Alwar was given on 14-2-1941, that the property was ancestral, that Jagdish was the adopted son of Kishanlal. that there was no legal necessity for the sale, and that the debt, which could be called antecedent, was only a sum of Rs. 290/-.
The High Court set aside the sale on the condition that Jagdish paid Rs. 290/- to the vendees before he obtained possession. Hiralal filed the present suit on 27-11-1945, on the allegation thathe had advanced half of the consideration for the sale and it was stipulated by Kishanlal in the deed of sale, that he would be responsible for the amount of consideration in case the sale is set aside. It was mentioned that Kishanlal had committed fraud! upon the vendees, inasmuch as he did not disclose the name of Jagdish as his adopted son at the time of the sale. After adjusting Rs. 145/-, which was half of Rs. 290/- deposited by Jagdish, he claimed Rs. 700/- made up as follows :
Half ofthe sale consideration Share of the costs in defending the earlier suitInterest on Rs. 575/- for a period of 7 years
The cause of action was said to have arisen on 14-2-1941. Ram Chandra the co-vendee, had also been made a party in the suit.
3. Jagdish contested the suit, and also pleaded that the sale made by Kishanlal was without consideration. Kishan Lal had died in the meanwhile, and the suit, as stated above, was instituted against Jagdish.
4. The trial court dismissed the suit by judgment dated 24-5-1950. The finding of the trial court was that the sale was without consideration. On appeal, the learned District Judge held that the question as to the passing of consideration was res judicata. The Court of first appeal in the earlier case had held that the sale price had been paid to the vendor, and the High Court in setting aside the sale on payment of Rs. 290/- had impliedly accepted that finding.
The learned District Judge was, however, of opinion that the contract of sale was entered into between Kishanlal on the one hand and Hiralal and! Ramchandra jointly on the other. He was of opinion that the claim which arose out of that contract could not be split up, and the present suit offended against Section 45 of the Contract Act. He held that in any case the plaintiff was not entitled to Rs. 94/- which he incurred as costs. He held the plaintiff to be entitled to interest, if his claim, for the principal amount was enforceable. He was of opinion that such interest should be recoverable from the date of the sale deed at the rate of 1 per cent. p.m. as covenanted in the sale deed. He, however, dismissed the appeal as the suit offended against Section 45 of the Contract Act.
5. I had some doubts as to whether a suit of this nature was maintainable. There is a limitation under the Hindu Law in respect of the power of the father to alienate ancestral property. He cannot do so, unless it is to pay off an antecedent debt or there is legal necessity for the benefit of the family. In case he does so, the sale can be set aside by his son as was done in the present case. A vendor is deemed to contract with the buyer that the interest which he professes to transfer to the buyer subsists and that he has power to transfer the same.
Therefore, even in the absence of stipulation that the vendor will be responsible to pay back the consideration in case the transaction is set aside, the vendor undertakes the liability under the law (vide Section 55(2) of the Transfer of Property Act). In the present case of course Kishanlal had stipulated even in the sale deed that he would be responsibleto refund the amount of consideration with interest aft 1 per cent per mensem, in case the properly goes out of the bands of the vendees. The question that arises is whether the son is responsible to pay off a contractual liability of the father of this nature. There are two cases of the Madras High Court, viz., P. Lingayya v. V. Punnayya, AIR 1942 Mad 183 (FB) and Ramamurthi v. Kuppuswami, AIR 1950 Mad 621, which lay down that the liability to refund the sale consideration is a debt of the father which is not avyavharika and, therefore, the son is liable to pay off this debt, and as a consequence it can be recovered from the sale of the ancestral property, including the share of the son.
I am however, inclined to think that if this kind of debt were not avyavharika, it would be very easy to part with the ancestral property, for all that has to be done is to make the sale, and when it is set aside it can be followed by a decree for sale consideration, and the property can be sold in execution of the decree. If what the law prohibits a father to do is done by him, I am inclined to think that a debt which arises out of such' action of the father must be held to be avyavharika.
In the State of Madras one coparcener may dispose of his undivided share in the ancestral estate, but in northern India and in places where the Mitakshara law prevails, a coparcener cannot dispose of his undivided interest also, and the sale by the father, if it is not for paying off an antecedent debt or for legal necessity, or for the benefit of the family, will be set aside as a whole on suit by the son. By accepting the view expressed by the Madras High Court in the Full Bench case, it would only be getting round the provisions of Hindu Law by a more expensive method, and the great restrictions for preserving the ancestral property in the family could easily be circumvented. A different view was taken in the earlier Madras case in Sreenivasa Aiyangar v. Kuppaswami Aiyangar AIR 1921 Mad 447. I am inclined to think: that the reasoning behind that decision is sound, although that decision has been set aside by the Madras High Court by the Full Bench decision.
6. It may be argued that if the father obtains a debt which is not avyavharika, he can later on alienate the property in order to pay off that debt, and, therefore, there is no absolute prohibition against transfer of the ancestral property by the father. This may bo so, but it is now settled that in the absence of an antecedent debt or legal necessity or benefit of the family, a father has no power to alienate ancestral property. In what other ways he can do so is a matter with which it is not necessary to deal in the present case.
It is true that such an alienation is not illegal or invalid ipso facto, and the sons may choose to abide by it, but if they do wish to challenge it, they have a right to do so, and in that case the. alienation will be held to be without authority. A suit of the present nature, if held to be maintainable, would as stated earlier, circumvent the very wholesome provision of Hindu Law. This ground, in my opinion, is sufficient for the dismissal of the appeal, but there is another defect in the present case.
7. The sale in the present case was jointly in the name of Hiralal and Ramchandra. The stipulation to pay back the sale consideration was also made by Kishanlal jointly in favour of the two vendees. Under Section 45 of the Contract Act, a promise made jointly in favour of two persons can only be enforced by the two promisees jointly.) What Section 45 of the Contract Act purports to say is that both the promisees should come as plaintiffs. It may be that one of the plaintiffs may not be agreeable to join as a plaintiff, and the lawcannot compel a person to become a plaintiff, in which case he can be made a defendant. This has been done in the present case.
But the error, which has been committed in the present case, is that the claim which arises under the contract for refund of the entire sum of Rs. 1150/- has been split up. There may be cases where this splitting may be permissible, where, for instance, a co-promisee abandons his share of the claim, but in the present case no reasons have been given in the plaint why the claim has been split up. In the absence of any facts which may show that the co-promisee has abandoned his claim, it cannot be split up, and there are good reasons for this state of the law. The present is a case where there are two co-promisees. There may be a case where there may be more than two. If every promisee can institute a separate suit, there will be multiplicity of suits, and it may lead to contradictory findings, on the same facts.
8. Learned counsel for the appellant relied on Nabendra Nath v. Shasabindoo Nath AIR 1941,Cal 595, Bhosai Bepari v. Aminuddi, AIR 1917 Cal 585, and Shital Chandra v. Manik Chandra 1 Ind Cas 254 (Cal). The first case is distinguishable. It was a case of a loan by a firm of four persons to one of the members of the firm. The members of the firm had specific shares, which was also known to the debtor, as he himself was a member of the firm. In the second case there is no discussion on the question of law and the decision only purports to follow 1 Ind Cas 254 (Cal).
The third case which has been followed in the second, is distinguishable. The suit was for the entire amount of bond executed in favour of two persons on the allegation that the heir of the second promisee had transferred his share to the plaintiff. The transfer was considered to be defective in the absence of a succession certificate, and the case was remanded for a fresh trial with an observation that if the heir does not obtain a succession certificate during the pendency of the suit, a decree for the amount due to the other co-promisee in case the claim is well-founded will be given. There was in the case a special circumstance that the claim in favour of the deceased co-promisee was considered as incapable of being enforced. The suit was. however, for the wholeclaim.
9. A case on all fours is, Siluvaimuthu Mudaliar v. Muhammad Sahul, AIR 1927 Mad 84, where it has been held that a claim for debt arising out of a contract in favour of two joint promisees cannot be split up. It was held that
'If a suit is brought to recover a debt due to joint promisees, all of them must be impleaded and the suit must be for the entire debt. They are not entitled to split up their claim and each sue separately for his own share.'
In the present case, there is no defect as to the joinder of parties, but the defect is that the claim has been split up. With great respect, I agree with the view of law taken in the Madras case, and owing to this defect also, the plaintiff is not entitled to succeed.
10. As regards the claim of costs, I agree with the opinion expressed by the lower court. If the plaintiff has spent any amount, he did so in order to support the alienation, and he had to pay the costs in supporting a bad defence.
11. As regards the interest, the plaintiff had his cause of action from the date he lost possession of the property. His claim for the interest from the date of the contract of sale was erroneouslymade.
12. As to consideration, there is in my opinion an implied finding in the previous decision of the High Court of Alwar that it was for consideration, although no definite finding was given in that behalf. The fact that Jagdish was directed to pay Rs. 290/- before he could obtain possession implied that the finding of the lower court that the sale was for consideration was upheld.
13. As a result, I am of opinion that this appeal has no force, and must be dismissed. The appeal is accordingly dismissed. There will be no order as to costs of this Court.
14. Learned counsel for the appellant praysfor leave to appeal. The leave is granted under Section 18 of the Rajasthan High Court Ordinance.