Puran Singh vs Udham Singh and Another

Kapur, J.—This appeal is brought by the plaintiff Puran Singh against an appellate decree of District Judge M. R. Bhatia dated 6-4-1949 reversing the decree of the trial Court and thus dismissing the plaintiff''s suit.

The facts of the case are that Bishan Singh defendant No. 2 sold the land in dispute which was 6 ''bighas'' 12 ''biswas'' and 5 ''biswansis'' for a Sum of Rs. 2,290/- by a deed of sale dated the 1st July 1940. Out of this consideration money Rs. 1,520/- was payable on two previous mortgages -- one, a mortgage of the and in dispute for Rs. 1,400/- and the other a mortgage of the house for Rs. 120/-. The former was a mortgage with possession where the interest equalled the produce and the latter was an interest carrying mortgage. There was also Rs. 70/-- for payment of registration expenses. A suit was brought by a third degree collateral to challenge the sale on the ground of its being without consideration and necessity. The District Judge has found Rs. 1,520/-for necessity and the question that has been raised in this second appeal before me is whether this is sufficient to support the sale.

Their Lordships of the Privy Council in -- AIR 1927 37 (Privy Council) held that a sale of joint family property where the consideration was Rs. 3,500/- and necessity proved was for Rs. 3,000/-, was a good sale because the real question to be considered in that case was whether the sale itself was justified by necessity. At p. 41 their Lordships said:

"In any case where the sale has been held to be justified, but there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes, and for the benefit of the family. This is in line with the series of decisions already referred to, in which it was held that where the purchaser acts in good faith and after due inquiry, and is able to show that the sale itself was justified by legal necessity, he is under no obligation to enquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale."

The same rule has been stated by Mulla in his Hindu Law at p. 295. This Privy Council case was considered by a Division Bench of the Lahore High Court in -- ''Hakam Ali v. Milkhi Ram'' AIR 1932 Lah 193(2) (B), where it was held that sale could not be deemed for legal necessity where it was affected to pay off the amount of mortgage on the property. Addison, J., there said:

"It cannot therefore be held that there was any necessity to effect the sale of the property merely to pay off the amount for which the property was mortgaged"

and he referred to -- AIR 1927 37 (Privy Council) No case has been cited where -- ''Hakim Ali''s case, (B)'', was followed though it was referred to by Munir, J., in -- ''Samund Singh v. Rakha Ram'' AIR 1943 Lah 22 (C), but there the learned Judge went on the question of actual pressure on the estate, and if I may say with great respect the meaning of the phrase "actual pressure on the estate" is not what the learned Judge thought it to be.

I need not go very much to anything very ancient but I will refer to a judgment of the Lahore High Court in -- ''Iqbal Singh v. Jasmer Singh'' AIR 1934 Lah 296(2) (D), where at p. 299 Sir Shadi Lal C. J. reiterated the definition of the word ''just debt'' as follows :

"But it has been repeatedly held that an alienation can be validly made for the payment of a just debt which means a debt which is actually due, is not immoral, illegal or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton waste or with the intention of destroying the interest of the reversioners. This was the rule enunciated in the leading case of -- ''Devi Ditta v. Saudagar Singh'' 65 Pun Re 1900 (E), and has been approved by the Privy Council in --''Kirpal Singh v. Balwant Singh 26 Pun Re 1913 (PC) (F)."

If the meaning of just debt is the existence of a previous debt which is due, is not immoral, illegal or opposed to public policy etc., then it cannot be said that the amounts due on the mortgages in the present case were not just debts particularly when one of the mortgages was an interest carrying debt. This definition which was given as long as 1900 by Chatterjee J. has more recently been re-stated by Mehr Chand Mahajan, J. in -- ''Karnail Singh v. Naunihal Singh'' AIR 1945 Lah 188 (FB) (G). I am in respectful agreement with these judgments as indeed I am bound by them particularly when they have the imprint of very high authority. In this Court Harnam Singh J. in -- ''Mohindar Singh v. Joginder Singh'' AIR 1850 P & H 79 (H), upheld the sale which was made to pay off two mortgages the rest of the consideration not being proved.

I would hold that the debts in the present case were just antecedent debts and therefore form a binding consideration for the sale which was effected by Bishan Singh. I would therefore dismiss this appeal, but the parties will bear their own costs in this Court.