Ramjatan Rai and Others vs Baliram Prasad and Others

Adami, J.—The plaintiffs in this suit were the two minor sons and the wife of Jagan Nath Prasad, defendant No. 1; they sought for a declaration of their exclusive title to three villages, Agrasanda, Pipra and Rampur, and for an adjudication that two sale-deeds executed by Jagannath and defendants Nos. 2 and 3, Musammat Dukhan Kuer and Ram Nandi Kuer, represented a collusive and fraudulent transaction, and were null and void. They asked for recovery of possession of the villages and for mesne profits.

The following genealogical table will explain the relationship of the parties:

DOMA LAL | _______________________________________ | | Dukhan Koer Deo Narain, Jitan, Ramdulari defdt No. 2. Kuar | ________|____________ | | | Ramnandi Ram Grander. Jagannath Rajendra. defendant defendant No. 3. No. 1 | Radhika Kuer, | plaintiff No. 3. _____________________|_____________ | | Baliram, Raghunandan, plaintiff No. 1. plaintiff No. 2. 4. In 1888 Deo Narain and Jitan obtained a usufructuary-mortgage (Exhibit 7) of Pipra and Rampur from one Lala Tulsi Prasad, and subsequently, under the, sales deed Exhibit 6, dated the 17th February 1909, the said Lala Tulsi Prasad sold Rampur, Pipra and Agrasanda to Jagannath Prasad and Rajendra Prasad, the surviving male heirs of Jitan and Deo Narain, and to Mussammat Dukhan Kuer and Ram Nandi Kuer, the widows of Deo Narain and Jitan, for Rs. 8,625. It is clear that thereafter the property was held by the purchasers as joint family property. Rajendra Prasad died, and Jagannath as lie head of the family, according to the plaintiffs, became an immoral spendthrift so that in 1914 Madho Prasad, the maternal grandfather sons, plaintiffs Nos. 1 and 2, determined that in the interest of those sons, their shire ought to be separated to save them from ruin. Accordingly, on the 17th November 1914, a demand was made on their behalf that he family properties should be partitioned. Jagannath Prasad did not agree, so on the 8th December 1914, a plaint was filed on behalf of the minors asking for partition by suit. It seems tint the miners were not shown in the plaint to be properly represented by a guardian, so the plaint was returned. It was filed again on the 21st December, and in the end the present plaintiffs obtained a decree (Exhibit 1 dated 30th August 1915) in the partition suit and were awarded three shares out of the six into which the family property was divided, after excluding certain property in Champaran as share of one of the widows.

Meanwhile, after coming to know of the demand for partition, Jagannath, in order to pay off debts he had contracted, entered into negotiations with Raghunandan Singh, Gaya Singh and Harnandan Singh for the sale of the entire family properties, and on the 18th December 1914, Jagannath styling himself as sole surviving member of the joint family, executed jointly with Musammat Ram Dulari. Dukhan and Ramnandan, who were living with and being supported by him, a deed of sale (Exhibit B) conveying the entire properties to the abovementioned three persons. The deed stated that the money (Rs. 7,000) to be paid for the property was necessary for paying off debts aggregating Rs. 5,231-7-3 and also Rs. 1,768-8-9 was wanted to pay rent and to meet other legal and necessary expenses. The deed of sale was executed by Jagannath and the three ladies but, when it was sought to register it, the three ladies refused to admit execution and Jagannath alone made the admission, so on 21st December 1914, the District Sub-Registrar endorsed on ma deed "Kept pending for admission of execution of some executants."

Completion of this transaction having failed, Jagannath tried again, and on the 19th February 1915 he and the three ladies transferred, the properties by two sale-deeds (Exhibits A and A1) to Ramjatan Sing a, brother of Ragnunandan Singn, Shivanandan Singh, brother of Gaya Singn and Hari Nandan Singh. In these deeds it was stated that Jagannath and the three ladies were the surviving members of the family and were living separately from one another, and had divided all the properties. The consideration for the sale was Rs. 7,006, but as there was no difficulty in obtaining one stamp paper for so large an amount, two separate, deeds were drawn up identical in their terms each for a consideration of, Rs. 3,500; but these two deeds stated that the aggregate of debts to be paid off was Rs. 3,490-7-3 and the enumeration of the debts does not altogether tally with the enumeration, in the former sale-dead, Exhibit B. The deeds were duly executed, and were taken to the Registration Office to be registered. Meanwhilet, he partition suit had been filed by the plaintiffs, who hearing of the sale-deeds petitioned the Court to stop further steps in the sale transaction. The application was made on the 22nd February 1915, and on that date the Court issued an injunction on the defendants, but the notice reached the defendants at the Registration Office after registration had commenced and the Sub-Registrar held that he must complete the registration, and the sale-deeds, Exhibits A and Al, were duly registered.

Then the plaintiffs instituted the suit out of which this appeal arises. They joined Ramjatan, Shivanandan and Harinandan, the purchasers under Exhibit A aud Exhibit A1, as defendants Nos. 4, 5 and 6, and they or their heirs alone contested the suit. Jagannath died alter institution of the suit and the two ladies, defendants Nos. 2 and 3, did not contest it.

It is to be noted that the sale under Exhibit A and Exhibit Ai is attacked in the suit and that relief is not asked for in the plaint with regard to the sale in December 1914 under Exhibit B.

The Subordinate Judge has found that the family was joint up to the time of the partition suit and that the property in fact was joint family property up to the disruption caused by the fling of the partition suit; he held that there was a necessity for partition because Jagannath was a spendthrift, and that the sale-deeds, Exhibit A and Exhibit AI, were executed in a hurry because of the suit. He doubted whether the purchase was a bona fide one, and made after due inquiry. He decide that the sales under Exhibit A and Exhibit Ai must be; held to be inoperative as against the plaintiffs'' since they were executed after the institution of the partition suit, when there had already been a disruption in the family, and the executants had no right to" alienate the shares of the other members of the family who were not joint at the time. Mesne profits were refused. The plaintiffs'' right to an eight-anna share in the properties covered by the sale-deeds, Exhibit A and Exhibit A1, was declared and their right to recover possession of the property to the extent of their share.

I have no doubt in my mind, that the decision of the lower Court is correct. It is contended by Mr. Lachmi Narain Sinha on behalf of the appellants, defendants Nos. 4, 5 and 6, that at the time Exhibit B was executed Jagannath Prasad was the karta of the family and the sale surviving adult male member, and as such he had every right to alienate the family property for legal and antecedent debts. He pointed out that the Kobala, Exhibit B, was executed before the plaint in the partition suit was filed. He did not press the contention that the sale under Exhibit A and Exhibit A1 was valid, for he admits that the doctrine of lis pendens would apply to it.

Now, it was the sale under Exhibit A and Ai that was attacked in the suit, and of the present appellants only one, Harinandan, was a party to the sale under Exhibit B.

It is shown by the plaint in the partition suit that a demand for partition was made on behalf of the plaintiffs to Jagannath in November, and further it appears from the evidence of P.W. No. 4 that the plaint in the partition suit was first filed on December 8th 1914, whereas Exhibit B was executed on the 18th December. It is quite settled that unequivocal and manifest declaration of an intention to become divided in estate amounts to a valid separation and a disruption of the joint family. I need only refer to the case of Vato Koer v. Rowshun Singh 8 W.R. 82 and the decisions of their Lordships of the Privy Council in Suraj Narain v. Iqbal Narain 18 Ind. cas. 301 : 35 A. 80 : 40 I.A. 40 : 13 M.L.T. 194 : 17 C.W.N. 333 : 11 A.L.J. 172 : (1913) M.W.N. 183 : Cri.L.J. 288 : 24 M.L.J. 345 : 15 Bom. L.R. 45 : 16 O.C. 129 (P.C.) and Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas. 321 : 43 C. 1031 : 43 I.A. 151 : 20 C.W.N. 1085 : 14 A.L.J. 822 : 20 M.L.T. 78 : 12 N.L.R. 113 : (1916) 2 M.W.N. 65 : 18 Bom. L.R. 621 : 4 L.W. 114 : Cri.L.J. 207 : 31 M.L.J. 455 (P.C.).

The intention of the plaintiffs to separate had clearly and unequivocally been expressed to Jagannath before the document Exhibit B. was executed, both by the demand in November and by the plaint filed on December, 8th, and, therefore, Jagannath could not by execution of Exhibit B on December 18th bind the plaintiffs. If is argued that Jagannath was the natural guardian of the minor plaintiffs and so his transaction would bind them .but after the demand for partition in November, it is clear that Jagannath could not hold the positron of their guardian since from that time his interest was adverse to theirs.

It is in evidence, too, that Madho Prasad, the maternal uncle of the minors; was called in during the ''negotiations leading up to the execution-of Exhibit B. but he refused to recognise the transaction, acting for the minors.

It is quite clear, too, that Exhibit B was ineffectual otherwise; from Exhibit A and Exhibit AT it is shown that he consideration passed, and in fact it was only through subsequent suits that the sums which were to be paid as consideration to clear debts were extracted from the appellants.

A comparison of the contents of the documents, Exhibit B, on the one side and Exhibit A and Exhibit At on the other shows, I think, that there was a want of bona fides; the purchasers are different, except Harnandan and the enumerations of debts and of the total amount required vary so much as to throw doubt on both transactions. It is evident that, hearing of the intention of the plaintiffs to bring about a partition, Jagananath was in a hurry to bring it about so that their shares would have to bear a portion of the burden of his debts. Madho was acting as guardian of the minors and was contesting Jagannath''s right to deal with their property and squander it. Madho had put in a petition to be appointed guardian and was afterwards appointed.

Lastly, Mr. Lachmi Narain Singh contends that the appellants have paid good money in good faith for the property, and that the minors have benefited by the payment of their father''s debts, and so ought to refund a proportionate amount before they can recover possession. The question whether the sons are liable for their father''s debts as being antecedent debts, or debts contracted for legal necessity does not arise in this case and need not be discussed, nor is it necessary to consider whether the plaintiffs are bound to refund any part of the consideration money to the appellants. It is enough to say that the appellants purchased at about half its value a property worth Rs. 12,000 and thus if, in the end, they get only half the property they will not be losers.

It is quite clear that the sale under Exhibit A and Exhibit Ai was invalid, and this is practically admitted lay the learned Vakil; that being so, the decision of the Subordinate Judge was correct and the plaintiffs are entitled to recover possession of the share of the joint family property awarded to them on partition.

I would dismiss the appeal with costs.

Jwala Prasad, J.

I agree.