1. This suit was brought to obtain possession of a 2 1/2 annas share of a certain mouzah by virtue of a conveyance executed in the plaintiff's favour on the 1st of August 1879 by Dowlut Mundar, defendant No. 1. Plaintiff was unable to get possession by reason of the opposition of defendants 2 and 7, a son and grandson of Dowlut, who set themselves up as the exclusive owners of the property claimed by plaintiff, and denied that Dowlut had any interest in it.
2. The other five defendants are all sons of Dowlut.
3. The suit in the Courts below, and the present appeal to this Court, have been defended by only defendants Nos. 2 and 7, and since the appeal was filed, the defendant No. 1, Dowlut Mundar, has died. A moiety of the village in question has been found to be the joint property of the seven defendants, composing a family governed by the Mithila law. And the question before us is, whether the alienation made by the father, Dowlut, is binding upon the son and grandson who contest it.
4. The plaintiff in his plaint alleged that the sale was made to him under necessity and for the benefit of Dowlut's family. In evidence he attempted further to prove that the sale was made with the direct assent even of the defendants 2 and 7.
5. The lower Appellate Court has found that this was not so; and has also found that the sale was not shown to have been effected for the benefit of the family. It held that the family were not bound by it, and considered, that the ruling in the case of Sadabart Pershad Sahu v. Foolbash Koer 3 B.L.R. (F.B.) 31 forbade the passing of a decree for the plaintiff even for so much of the share claimed as belonged to Dowlat himself and to the other non-contending defendants.
6. The learned Counsel for the plaintiff appellant has impugned the lower Appellate Court's decision that the sale by Dowlut is not binding on the respondents on this ground; that they have not proved that the money raised by the sale was obtained for immoral purposes or for the discharge of immoral debts; and he contends that in a suit in which the son contests the validity of an alienation made by the father, it is incumbent upon him to prove that the object was to pay off immoral debts, and not upon the purchaser to prove that there was legal necessity for the sale.
7. We have considered all the cases cited to us as bearing upon this point, and the outcome of them all appears to be that, although no member of a joint Hindu family governed by Mitakshara or Mithila law has authority, without the consent of his co-sharers, to sell or mortgage even his own share in order to raise money on his own account, and not for the benefit of the joint family, yet if a father does alienate even the whole joint property of himself and his sons, in order to pay off antecedent personal debts, the sons cannot avoid such alienation unless they prove that the debts were immoral.
8. But to make the alienation to this extent binding upon the sons who did not consent to it, it must be shown that it was made for the payment of antecedent debts, not only in consideration of a loan, or of a payment made to the father on the occasion of his making the alienation.
9. It cannot be said that in the case of a sale voluntarily made the purchase money itself constitutes an antecedent debt, such as to render that sale binding on the sons, unless they prove the transaction to have been immoral.
10. In the present case the facts found by the lower Appellate Court are not sufficient to entitle the plaintiff to a decree; for the Judge does not find that there was any antecedent debt, for the liquidation of which the father sold the property. On the contrary, though one witness deposed that a sum due to him was paid off shortly after the sale, the Judge evidently does not believe that the sale was effected for that purpose.
11. So far as the contesting defendants, therefore, were concerned, we cannot say that the lower Appellate Court was wrong in deciding in their favour. And as regards the other contention on behalf of the plaintiff appellant that the Court below should have given him a decree so far as concerned the interests of the non-contending defendants, we feel bound to hold that the sale having been found not to have been for the benefit of the family, and not having been shown to be necessary for the payment of antecedent debts the authority of the ruling in Sadabdrt Pershad Sahu's case was binding on the lower Court, and it rightly refused to recognize the alienation.
12. It would be still more difficult to give effect to it now that the defendant No. 1 who was the vendor is dead, and his interest in the property has thus become extinguished. Even if the lower Court had a discretion in the matter, we cannot say that as a matter of law it was bound to exercise it.
13. The appeal must be dismissed with costs.