Jokhu Gosain and Another vs Ganesh Singh and Others

B.K. Mullick, Acting C.J.

The plaintiffs sue for declaration of title to and confirmation of possession or, in the alternative, recovery of possession in respect of 4 bighas of land. This land is half of an area of 9 bighas which was purchased by the plaintiffs on the one hand and Gaurbhir Singh and Baldeo Singh on the other by a registered sale deed, dated the 26th November, 1911), from the father of the defendants for a price of Rs. 1,500. By a private partition the plaintiffs claim to be in separate possession of 4� bighas.

An attempt was made to show that the plaintiffs are in direct possession but the finding of both the Courts below is that the vendors of the plaintiff were in possession by receipt of rent from tenants.

The cause of action against the defendants is said to have arisen on the 30th July, 1921, when notwithstanding the sale to the plaintiffs, the defendants succeeded in getting their names recorded as proprietors in the registers of the Collector.

The trial Court found that the plaintiffs had not been able to show that there was necessity for the sale or that the plaintiffs were bona fide purchasers after inquiry. He also found that the plaintiffs had never got possession either direct or by collection of rents and he, therefore, dismissed the suit.

In appeal the District Judge found that the land was in the possession of raiyats and that the plaintiffs were entitled to be entered in the Collector''s registers as proprietors. He was of opinion that "when a father, as the head of a joint family, alienates joint family property, prima facie there is a presumption as against his sons that the alienation was for the benefit of the family, and the sons cannot repudiate the alienation unless they can show that it was for an illegal or immoral purpose."

As there was no evidence to prove that the sale was made for an illegal or immoral purpose, the learned Judge held that the plaintiffs� title was good.

It seems to me that the learned Judge is in error in his statement of the law The plaintiffs must prove their title. The property is ancestral and the father had no right to sell either his share or the share of his sons except for necessity or for the benefit of the joint family. Evidence was given before the Munsif that the property was distant from the family homestead and was difficult to manage; but the learned Munsif found that this was not proved. The learned District Judge has thrown the onus upon the defendants to prove that the sale was made for an illegal or immoral purpose whereas he ought to have held that the onus was upon the purchaser to show in the first instance that there was either necessity or benefit or proper inquiry or an antecedent debt. It is only when the burden has been shifted by some prima facie evidence that the sons can be called upon to show that the transaction was illegal or immoral or otherwise not binding on them.

The appeal must, therefore, be re-heard by the learned District Judge and disposed of according to law.

The learned Vakil for the respondents, however, makes an offer. Ha says that he is willing to give up his title to the property on receiving his half share of the consideration money and that in any event he is entitled in equity to compensation of some kind. The appellants decline to settle on these terms and they contended that there is no equity in the plaintiffs'' favour. They cite Badam v. Madho Ram 66 Ind. Cas. 19 : 2 Lah. 388 : AIR 1922 Lah 241 and Madho Parshad v. Mehrban Singh 18 C. 157 : 17 I.A. 194 : 5 Sar. P.C.J. 586 : Rafique and Jackson''s P.C. No. 121 : 9 Ind. Dec. 105 (P.C.).

In Modhoo Dyal Singh v. Golbur Singh 9 W.R. 511 : B.L.R. 1018 (F.B.) it was held that it was proved that the pur chase money was carried to the assets of the joint estate and that the son had had the benefit of his share of it, he could not recover his share of the estate without refunding his share of the purchase-money. This view was affirmed in Honooman Dutt Roy v. Bhagbut Kishen 15 W.R.F.B. 6 : 8 B.L.R. 358 although it was observed in that case that it would depend on the facts of each came upon what terms the sons would be entitled to recover their share. The liability of the sons to refund the purchase-money was again affirmed in Koer Hasmat Rai v. Sunder Das 11 C. 396 : 10 Ind. cas. 26 : 56 Ind. Dec. 1023. That was a suit for partition by the sons against the purchaser and also the father, and it was held that the eons would be entitled to recover their share of the property on refunding the whole of the purchase-money. The case was decided not on the equity arising but of their enjoyment of a part of ''the purchase-money (even though there was no proof of legal necessity) but on their liability to pay their father''s debt. The Court was of opinion that the sons might have recovered the whole of the property if they had so framed their plaint; but that as they had only asked for the recovery of their fractional interest they would be limited to that relief, notwithstanding their liability for the whole of the purchase-money. This result was the natural consequence of the view that as soon as a decree for partition was made, a debt was created against the father which the sons were liable to pay. The correctness of this view, however, has been recently criticised in Sreenivasa Aiyavgar v. Kuppuswami Aiyangar 64 Ind. Cas. 698 : 41 M. 801 : 14 L.W. 78 : (1921) M.W.N. 630 and it has been pointed out that the partition decree dated back to the date on which the plaint for partition was filed and that it could not be said that on that date there was any debt due by the father by reason of his having made a sale in respect of which there was a total failure of consideration. It was further pointed out that at most the father incurred a liability for damages, contingent on the event of the sale being set aside which could in no sense be called a debt incurred on the date of the sale.

It does not seem that in the above case there was any evidence that any portion of the purchase money had been spent for the benefit of the sons and, therefore, the equity arising against the sons was not considered; but I think it is clear that where there is such evidence the son would not be permitted to recover his share of the property without doing equity by refunding his share of the purchase-money.

In the present case the plaintiffs purchasers might have sued the father for damages for failure of title and if they had obtained a decree, they would have been entitled to enforce it against the sons either on the footing that they were under a pious obligation or on the footing that they were in possession of the father''s share of the assets of the family.

The purchasers might also have sued the sons as the heirs of their father for damages arising out of the contract of sale, but they have not done so.

The only question is whether, in the event of failing to show that the sale was for legal necessity or for the benefit of the joint family or for an antecedent debt or after proper inquiry, the purchaser in a suit for the possession of the land can enforce an equity against the son arising out of his enjoyment of a part of the purchase-money.

In Moyna Bibi v. Banku Behari Behari Biswas 29 C. 473 : 6 C.W.N. 667 the mother of a Muhammadan minor had mortgaged the minor''s land to the plaintiff and the plaintiff sued to enforce that mortgage. It was held that as the mother was not the legal guardian the transaction was void and even though the minor had been benefited by the transaction the mortgagee could neither enforce his mortgage nor recover the consideration money which had been applied for the minor''s benefit.

I think, however, that the decision of the Full Bench in Modhoo Dyal Singh''s case 9 W.R. 511 : B.L.R. 1018 authoritatively lays down the principle of a Mitakshara son''s liability for money of which he has had the enjoyment even though it was not borrowed for legal necessity. That case has not been overruled and I see no difference in the application of the principle whether the son is a defendant or a plaintiff.

I think, therefore, that the plaintiffs in the present case would have been entitled to recover such part of the consideration as had been enjoyed by the sons in the absence of any special reason disentitling them from such relief.

But here upon the findings there is such special reason. It has been found by the Munsif and also, though not very clearly by the District Judge in appeal that the plaintiffs have not at any time been is possession since the date of the sale, that is to say, for nearly twelve years. It also appears to be a fact that the plaintiffs have never attempted to recover possession during this time. This is clearly a case of laches which debar the plaintiffs from any equitable relief.

Therefore, it will not be necessary for the District Judge to consider whether the plaintiffs are entitled to recover any part of the purchase-money.

All that the District Judge will have to determine when he re-hears the appeal is whether the plaintiffs have proved legal necessity or benefit to the joint family or inquiry or an antecedent debt. If they fail to justify the sale on any of these grounds, the decree of the learned Munsif will be affirmed. If they succeed, they are entitled to recovery of possession.

The decree of the District Judge is, therefore, set aside, and the case is remanded for disposal according to law. Costs will abide the result.

Wort, J.

I concur.