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Shibeshur Prasad Bhagat Vs. Brij Mohan Missir - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.183
AppellantShibeshur Prasad Bhagat
RespondentBrij Mohan Missir
Cases ReferredNanomi Babuasin v. Modhun Mohun
Excerpt:
hindu law - mitakshara--debt by father--sale by father of family property--suit by son to cancel sale--evidence--general evidence of father's extravagance and immorality, whether sufficient--proof that particular debt was incurred for immoral or illegal purpose, whether necessary. - .....a minor, who sued by his grand-mother, rukmini kuari, as next friend, to set aside a sale by his father, bhagwan prasad bhagat, of a certain family property. the parties are governed by the mitakshara school of hindu law.2. the plaintiff's grand-father died about 1881 leaving considerable property including that which is the subject of this suit. the second defendant, bhagwan prashad, wsathen a minor and his mother rukmini kuari managed the property on his behalf. he attained his majority about 1893 and the debts which culminated in the alienation now in question appear to have begun about 1900 or a little later.3. in 1906, bhagwan prasad was very considerably involved in debt. he had three mortgages in favour of the defendant no. 1 who has now purchased the property from him and a.....
Judgment:

1. This is an appeal by Shibeshur Prasad Bhagat, a minor, who sued by his grand-mother, Rukmini Kuari, as next friend, to set aside a sale by his father, Bhagwan Prasad Bhagat, of a certain family property. The parties are governed by the Mitakshara School of Hindu law.

2. The plaintiff's grand-father died about 1881 leaving considerable property including that which is the subject of this suit. The second defendant, Bhagwan Prashad, wsathen a minor and his mother Rukmini Kuari managed the property on his behalf. He attained his majority about 1893 and the debts which culminated in the alienation now in question appear to have begun about 1900 or a little later.

3. In 1906, Bhagwan Prasad was very considerably involved in debt. He had three mortgages in favour of the defendant No. 1 who has now purchased the property from him and a number of other obligations on mortgages and rokas and he also required money for some litigation. Under those circumstances, on the 22nd May 1907, he sold this portion of the family property to the defendent No. 1 for Rs. 19,000.

4. The plaintiff was then a child of about three and must now be about eight years old. In September 1907, some few months after the conveyance, this suit was instituted in his name by his grandmother. The suit has been dismissed by the learned Subordinate Judge and the plaintiff appeals.

5. Three grounds have been urged before us: first, that the whole of the consideration-money was not paid; secondly, that the property is worth far more than Rs. 19,000, and thirdly, that the debts were not such as would justify the sale by the father.

6. As to the whole of the consideration-money being not paid, the evidence (as the Subordinate Judge remarked) proves beyond a shadow of doubt that all the Rs. 19,000 was paid or accounted for. We need not go into the evidence in detail which is quite conclusive, nor has that point been seriously pressed before us by the learned Pleader for the appellant.

7. With regard to the value of the property, it is to be noted that the plaintiff in his plaint put Rs. 23,000 as the true price. Against that, however, there is evidence, which we see no reason to disbelieve, that offers were made for this property by one person of Rs. 16,000 and by another of Rs. 17,000. Neither of those would-be purchasers was willing to increase his offer and no sale was, therefore, made to either of them. It is also a fact which is worthy of notice that in the negotiations for sale in which Rameshur Ram, as head gomashta of Sitaram Achibar Ram, offered Rs. 17,000, the present next friend, the grandmother, of the plaintiff was present and took a part. It hardly lies in her mouth to say now that the property was not properly disposed of or that Rs. 19,000 was not a fair price.

8. With regard to the last point, the learned Pleader for the appellant confesses that the evidence does not establish that any particular debt of the father was incurred for immoral or illegal purposes. There is some general evidence by the witnesses for the plaintiff of extravagance and immorality on the part of Bhagwan Prasad Bhagat, but this is not sufficient. It must be shown that the debts for which the sale took place were incurred either in whole or, at any rate, in part for immoral or illegal purposes. We heed only in this connection refer to the case of Nanomi Babuasin v. Modhun Mohun 13 C. 21 : 13 I.A. 1 in which their Lordships of the Judicial Committee of the Privy Council held that there was no conflict of authority on this question. They said: 'if his debt was of a nature to support a sale of the entirety, he might legally have sold it without suit, or the creditor might legally procure a sale of it by suit. All the sons can claim is that, not being parties to the sale or execution proceedings, they ought not to be barred from trying the fact or the nature of the debt in a suit of their own. Assuming they have such a right, it will avail them nothing unless they can prove that the debt was not such as to justify the sale.'

9. Under these circumstances, the appeal fails and is accordingly dismissed with costs.

10. The next friend of the plaintiff-appellant will, of course, be liable for the costs.


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