1. Two points have been raised on behalf of the appellant. The first question is whether the sale-deed executed by the 1st and 2nd defendants in the plaintiff's favour is binding1 upon the other defendants. We are constrained to differ from the learned City Judge as regards this question. The house which was the subject of the sale was, according to the evidence of the plaintiff's 5th witness, the only property owned by the family in the year 1892. This witness has not been cross-examined by the Vakil for the defendants. The sale-deed itself is executed by all the adult members of the family then in existence, that is, the 1st and 2nd defendants. The other members of the family are the sons of the 1st defendant. There is no suggestion of any motive for the 1st defendant to defeat the interests of the other members of the family by an improper sale. There is the evidence of the plaintiff's 1st and 4th witnesses to prove that the sale was effected for the maintenance of the family with the proceeds of the sale: and there is no reason why this evidence should be disbelieved, The defendants have set up false cases with reference to the transaction in question. They said it was an usufructuary mortgage, and at another time they said it was a benami sale. Both these cases have been found to be false. It seems to us, there is no reason why we should cannot the defendant's own testimony as regards the transaction in question. For these reasons we are disposed to hold that the sale is binding upon all the members of the family.
2. The next question that has been argued is with reference to the rent. The learned City Judge following the decision in Turuf Sahib v. Eusuf Sahib 30 M.k 322 has disallowed the plaintiff's claim for rent. Assuming that case is rightly decided, it has no application to the present case. There the lease was required to be in writing registered and, as the instrument was not executed by the lessor, the transaction was held to be invalid as a lease. As regards the present case, it is a lease, from month to month, of a house which is not required to be registered under the Transfer of Property Act. There is no question, therefore, of the lessor not executing the writing, Exhibit B or Exhibit C. Taking Exhibits B and G as instruments executed by the 1st and 2nd defendants only, it is quite sufficient to say, that there was an oral lease by the plaintiff to the defendants Nos. 1 and 2 which would operate as a valid transfer. But even apart from any such presumption of an oral lease, we are not constrained to hold that, in the case of a lease which is not by law required to be in writing registered, the mere assent of the lessor to Exhibits B and C is insufficient to make them valid when accompanied by delivery of possession. In this view, the plaintiff is entitled to a decree for the rent claimed. We must allow the appeal with costs in this and in the Court below.
3. We regret that there has been no appearance on behalf of the respondents. But having given the matter the best consideration that we could give to it, we think the conclusion we have arrived at is right.