Chadi Sahi and Others vs Nathu Lal Chowdhry

Glover, J.—This was a suit by the'' sons and grandson of one Nirbhoy Sing to set aside a sale made by their relative to the defendant Soambur Sing, on the ground that it was effected without their consent, and was not justified by any such necessity as the Hindu law allows. The property sold consisted of a 2-anna share of mouza Ikbarpore, and it is admitted that it formed part of the ancestral estate of the family.

The defendant Nathu Lal Chowdhry, the purchaser at the auction sale of Soambur''s right and interest in the estate, and the only defendant specially interested, defended the suit on the ground, first, that the claim was barred by the law of limitation; and, secondly, that Nirbhoy was justified in selling to Soambur by reason of urgent necessity.

The Subordinate Judge decreed for the plaintiffs unreservedly, holding the sale to be void; but the Additional Judge, although he concurred with the principle of the first Court''s decision, amended its decree in the first instance in favour of the auction-purchaser, by directing the plaintiffs to refund the purchase-money before executing their decree for possession. This part of his order was however altered on review, and the final decree was that the two younger sons and the grandson of Nirbhoy should recover the shares unconditionally; that Chadi Sahi, the eldest son, who was of age when the sale was made, should get his share, on payment of a proportionate share of the defendant''s purchase-money; and that the remaining share, i.e., that of Nirbhoy himself, should remain in the defendant''s possession.

The points taken in special appeal by the defendant Nathu Lal are:--

(1).--That limitation bars the suit.

(2).--That the vendee, Soambur, was justified in purchasing, on the ground of his vendor''s necessity, and that the conduct of the plaintiffs amounted to an acquiescence in the sale; and

(3).--That in any case, the defendant, an innocent purchaser at auction for value, is entitled to a refund of his purchase-money in full.

On the part of the plaintiffs a cross-appeal is preferred, u/s 348 of the Procedure Code, against that part of the Additional Judge''s order, which allows the defendant to retain possession of Nirbhoy''s share, and to keep that of Chadi, until that individual repays his share of the purchase-money.

On the issue of limitation we think that the Court below was right. The Full Bench decision in Raja Bam Tewarey v. Luchmun Persaud Case No. 228 of 1867; June 7th, 1867 (B.L.R. Sup. 731) lays down the rule that, in cases like the present, the cause of action to the sons would accrue, and limitation run, from the date of the vendee''s taking possession; and on that calculation the suit was undoubtedly brought within time. We see no force in the special appellant''s contention that, because the suit was to recover possession from him as auction-purchaser, therefore the suit was actually to set aside an auction-sale, and was governed by the one year''s limitation. The plaintiffs'' claim was made not against the auction-purchaser, except in so far as it asked to have his name removed from the Register as proprietor; and there is no prayer for reversal of the auction-sale. In point of fact there was no necessity for any such prayer. The defendant bought the rights and interests of Soambur; and if the plaintiffs could show that Soambur had no rights or interests in the property, the sale, although it might have been a perfectly regular and valid one, would still have passed nothing to the purchaser, and would not stand in the plaintiffs'' way. The plaintiffs therefore had no object in setting aside the auction-sale, and there was no necessity for them to bring a suit for the purpose.

Then with regard to the period of adverse possession, it has been argued that one Madan, who claimed as purchaser from Nirbhoy, held possession before Soambur, and that the limitation ought to have been calculated from the last date on which the father, Nirbhoy, held possession of the property.

It appears to us absolutely immaterial to determine the nature or extent of Madan''s possession, as it is clear from the record that Nirbhoy came again into possession after the arrangement with Madan, and it was against Nirbhoy that Soambur got a decree for possession in March 1856. The adverse possession commenced therefore from the date on which Soambur got possession from Nirbhoy; and on this calculation the plaintiffs are just within the 12 years.

Then as to the necessity for the sale. The money is said to have been raised to pay a demand of Government against Nirbhoy as security for the farmer of certain ferry tolls. There is no denial on the part of the defendant as to the purpose to which the money was applied, and we think it quite clear that this obligation was purely one of a personal character, and could not be got rid of by laying it upon the estate. It was Nirbhoy''s personal liability, and be had no right to burthen his family with it. The Privy Council in the well-known case of Hunoomanpersaud Panday v. Mussamut Babooe Munraj Koonweree 6 M.I.A. 393 have laid down the rule to be followed in estimating a purchaser''s liability. He is to make all such enquiry as is possible, and to see as well as he can that there is a necessity for borrowing money for the benefit of the estate : and it seems quite clear that the slightest possible enquiry on the part of Soambur would have shown him the impropriety of lending his money to wipe off a personal debt of Nirbhoy. Soambur must have known that the loan was not for the benefit of the estate; and had he been the substantive defendant in this suit, he would have had so far no defence.

But it was argued that even if there were no proved necessity, still, as Chadi, the eldest son, was of age when the transaction was entered into, and made no objection to it, his consent to the sale should be implied; and that as the other sons have allowed many years to elapse since the transfer, they must also be considered as having agreed to the sale. With regard to the last part of this argument, we remark that all the younger sons of Nirbhoy were admittedly minors at the time of the Bale to Soambur, and there is nothing on the record to show that they have now attained majority, and we cannot imply consent under such circumstances.

As to the elder brother, Chadi, even if it be admitted that his silence be equivalent to a consent to the sale, that consent would not make the transfer valid, inasmuch as by the Mitakshara law, the consent of all the shareholders would be necessary even to the alienation of his own share.

Then as to the refund of the purchase-money. It has been ruled by a Fall Bench in the case of Mudhoo Dyal Singh v. Golbur Singh Case No. 1198 of 1867; April 29th, 1868 (B.L.R. Sup. 1018), that there must be proof of certain circumstances before a purchaser can have an equitable right to compel a refund, and these circumstances are stated to be that the purchase-money went to benefit the estate; and that in that way the sons got a direct advantage from it. In this case, as we before remarked, the money paid by Soambur (and for the purpose of the argument), we must look upon Soambur and Nathu Lal as representing the same interest) was applied by Nirbhoy to his own personal necessities, and in no way benefited his estate; and as Soambur, if he were in possession, would have no right to a refund, neither can Nathu Lal have such right, as he can stand in no higher position than the party whose interests he purchased.

Nor can he, we think, retain possession of Nirbhoy''s share, nor get back such portion of the money as would be represented by that share, inasmuch as the estate being joint and undivided, Nirbhoy had no right to burthen or alienate even his own share, without the consent of all his co-sharers. The ruling of the Full Bench in the case of Sadabart Prasad Sahu Vs. Foolbashkoer and Others disposes of this point adversely to the defendant.

This is no doubt a case of great apparent hardship, and we should have been most willing to uphold the Additional Judge''s order regarding his retaining possession of Nirbhoy''s share, and for a refund of the purchase-money on Chadi''s share were it possible to do so. But the law on the point has been authoritatively laid down, and we have nothing to do, but to follow it. Neither can we take cognizance of the fact of the defendant''s being an innocent auction-purchaser. He had every opportunity of making enquiry and must have known the extreme danger of purchasing an interest which had been originally bought from a single member of a joint undivided family living under the Mitakshara law.

The order therefore we make in this case is, that the plaintiffs'' suit to have the sale to Soambur set aside as illegal be decreed as regards all the co-sharers, and that the Additional Judge''s order regarding the retention by the defendant of Nirbhoy''s share, and the refund of purchase-money by Chadi be set aside. Under all the circumstances of the case however, we feel justified in directing that each party pay his own costs in all the Courts.