1. The plaintiffs in this case are the sons of Raja Dunput Rai. It appears that, on the 14th April 1874, Raja Dunput Rai sold the whole of the disputed mouzahs to one of the defendants, and the ancestor of the other defendants, for Rs. 10,000. One of the plaintiffs in this case is an adult, and the other plaintiff is still a minor. The present suit was brought on the 18th July 1881 to recover possession of a 10-anna 8-pie, that is, a two-thirds share of the mouzahs sold, on the allegation that there was no such valid necessity as would justify the sale of the family property by the father while the plaintiffs were minors. If this suit be treated as one for partition, the plaint was open to the objection that the whole of the family property was not included in it. This is not a mere technical objection because on partition of the whole of the joint family property the mouzahs in dispute might under certain circumstances fall entirely to the father's share. For example, if there be any other property belonging to the joint family, the value of which is equal to a 10 anna 8 pie share of the disputed mouzahs, a Court dealing whith the question of partition might think it equitable to allot the whole of the disputed mouzahs to the father's share, assigning the other property of equal value to the sons.
2. This objection, however, was not taken by the defendants in the written statement. The defendants defended the suit upon the ground that the sale was made under such circumstances as would justify the sale by the father under the Mitakshara law.
3. The lower Court dismissed the suit, finding in favour of the defendants' plea taken in the written statement. But upon the evidence adduced in the lower Court we are not satisfied that there was any valid necessity for the sale, and we are unable to agree in the lower Court's conclusion upon this point.
4. The main ground upon which we are of opinion that that conclusion is not correct is, that the ease of necessity, which was attempted to be proved upon the evidence, was not the case which was put forward in the written statement. In the 11th paragraph the defendants said: 'The real cause of alienation is 'that the income derived from the disputed properties was very small, and 'that the revenue and other necessary expenses could not be paid out of the 'same, and as the residence of the father of the plaintiffs was at a great 'distance from this district, there was no hope of enhancing the jumma also. 'The consideration money offered on behalf of your petitioners was very large, 'considering the amount of income derived therefrom. He considered it to be 'advantageous to invest that money in another business, and consequently sold 'the said properties in lieu of Rs. 10,000 inclusive of all expenses.' But upon the evidence the defendants attempted to prove that this money was required for meeting the expenses of celebrating the marriage of the vendor's daughter. This case of necessity was neither recited in the conveyance nor set up in the written statement in this case. Under these circumstances it seems to us that the evidence adduced by the defendants to establish it should not be accepted as true until its omission from the written statement is satisfactorily explained. No such explanation has been offered.
5. But although we are unable to agree in the opinion of the lower Court upon this point, still we think upon another ground the decree made in the case is correct.
6. In this case there is no dispute that Rs. 10,000 was paid by the vendor for the property in suit to the plaintiff's father; and supposing that that sale is not binding upon them, under the circumstances of this case, they, in our opinion, cannot recover the property without refunding the purchase-money to the defendants.
7. The learned vakeel for the plaintiffs, appellants, cited on this point the Full Bench decision in Modhoo Dyal Singh v. Golbur Singh 9 W.R. 511 but it seems to us that this Full Bench Ruling has been virtually overruled by the Judicial Committee of the Privy Council in Girdharee Lall v. Kanto hall L.R. 1 I.A. 321. It was laid down in that case that under the Mitakshara law the son is bound to pay out of the ancestral property in his hand the debts contracted by his father, unless he can show that these debts were contracted for immoral purposes mentioned in the Hindu shastras. Now, if the sale be set aside in this case, it is clear that the purchaser would be entitled to recover the purchase-money from Raja Dunput Rai, the father of the plaintiff's. It would be, therefore, their father's debt, and unless they show that it was contracted for immoral purposes mentioned in the Hindu shasters the whole of the joint family property, including the disputed mouzahs in their hands, would be liable for it.
8. It follows, therefore, tha.t the plaintiffs in this case cannot recover the whole or any portion of the property sold without refunding the whole of the purchase-money to the purchasers, defendants, unless they show that this money was raised by the father for immoral purposes. Upon this point they adduced some evidence in the lower Court, and we agree with that Court that it is not reliable.
9. The plaintiffs, through their vakeel, intimated that they were willing to take a decree for the whole of the disputed mouzahs on the condition of their refunding the purchase-money, but the suit being not for the whole of the property sold, we cannot award a decree in their favour for it. In this suit they are entitled to a decree for the share claimed if they would agree to pay the whole of the purchase-money to the defendant purchasers. But the learned vakeel who appeared for them informed us that his clients were unwilling to take a decree upon this condition.
10. We are, therefore, of opinion that the plaintiffs' suit should be dismissed. Although we do not agree with the lower Court in the reasons given in the judgment, we think that upon the ground mentioned above the suit was rightly dismissed.
11. The appeal is dismissed with costs.