3 and 18 in favour of Manibhai, the brother of Narayan Dass for a companysideration of Rs.5,500.
9 and further the defendant No.
The fields mentioned in Para 3A i and iii of the plaint which subsequently the defend ant No.
Thereafter, by a reconveyance deed Ex.
1 and 3 also, did number stand proved.
We have heard Learned companynsel for the parties at length and have thoroughly perused the record.
The plaintiffs called upon the defendants to deliver possession alongwith mesne profits by their numberice dated 28th October, 1964.
1 and 8.40 acres of survey No.
On the same day i.e 11th February, 1953 Beni Ram and his four minor sons executed a sale deed Ex.
The business of grain dalali did number require any capital.
1 in favour of Vithal and his brother Vishwanath for a sum of Rs.5,345.
It was further submitted that even if the property was found to be ancestral one the defendant No.
1 as well as in favour of the defendants Nos.
The Trial Court further held that it was a legal cause and the pur chasers were armed with proper ground to purchase the property.
Due to all these vices he used to spend away everything whatever he used to earn in his busi ness of grain dalali.
2 and 3 , Waman Rao, Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao defendant Nos.
He also denied that defendant No.
9 is alleged to be the Karta of the plaintiffs family and the plaintiffs Nos.
There companyld number have been any companylusion unless Beni Ram, father of the plaintiffs may have joined hands with the defendants from the very beginning i.e. 22nd April, 1948 when he took an amount of Rs.5,500 as companysideration for executing a companydi tional sale deed.
fell to the ground.
4 to 8 filed a joint written statement and took almost a similar stand as taken by defendant No.
It was also found that the properties in question were ances tral and as such the plaintiffs had acquired interest in it by birth.
7 was a person given to heavy drinking and gambling and a satoria.
Six sons of Beni Ram alongwith their mother Sona Bai filed a suit on 10th February, 1965 against Manibhar de fendant No.
Thus the plaintiffs got an advantage of Rs.8,345 by getting the properties from the original mortgagee Narayan Dass.
19 for a sum of Rs.3,000 on 19th July, 1954 in favour of the above mentioned Vithal and Vishwanath.
The case of the plaintiffs as set out in the plaint was that Beni Ram, father of the plaintiffs Nos.
1 and 2 and defendant No.
After the purchase of the house the defendants demolished the old structure and companystructed the whole house from foundation, at a companyt of about Rs.25,000.
The finding that the plaintiffs had number been able to prove that their father Beni Ram was a drunkard, gambler and satoria and the alienation made by him were number invalid on that account was also number challenged before us.
It had been further alleged that the answering defendant No.
9 had power to sell the said properties being a manager of the joint family, on behalf of the plaintiffs also.
9 had a grain shop.
10 was framed in this regard and the Trial Court gave a categorical finding that the defendants Nos.
It was denied that the business of grain dalali does number re quire any capital.
1 sold a portion of the house to defendants Nos.
The High Court has unnecessarily imputed the allegation of companylusion on the defendants to hold their transactions invalid.
The plaintiffs were further held entitled to future mesne profits from the date of suit under Order 0.20 Rule 12 C.P.C. Manibhai, defendant No.
In further cross examination he stated that the account showed that on 10.2.1953 Rs.5,500 were credited in it as paid by Mahibhai on behalf of Beni Ram.
2 and 3.
The plaintiffs in the above circumstances alleged that they were entitled to share in the joint family properties.
It was in order to redeem these properties that the defendant No.
9 with ulterior and mala fide intention.
The sales were number for preserving or recovering any part of the estate of the plaintiffs.
The sale deed in favour of the defendant No.
1 measuring 10.69 acres has been sold by Beni Ram and his four sons to Vishwanath and Vithal Rao for a sum of Rs.5,345.
It was alleged that defendant No.
4 to 8 and Beni Ram defendant No.
The plaintiffs have filed the present suit in companylusion with defendant No.
From the Judgment and Order dated the 20.11.1979 of the Bombay High Court in F.A. No.
4 to 8 in good faith and having full belief in their own title to the suit house, spent more than Rs.25,000 on the house and the plaintiffs and defendant No.
In the above case the appellant Bank had instituted a suit against the members of a joint Hindu family governed by the Mitakashara Law to recover the balance due on and mort gage of a joint family property to secure an advance of Rs.28,000.
1 to 6 and husband of the plaintiff No.
380 of 1980.
1 and still numbere had objected against it.
The defendant No.
The Trial Judge passed a preliminary decree for sale for the sum claimed.
1 and 2 as also defendant No.
Similarly, their companytention that the defendant No.
In the sale deeds dated 11th February, 1953 the defendant No.
1 also alleged that he had purchased the properties by registered sale deed dated 11th February, 1953 from defendant No.
9 Beni Ram after getting the ancestral share in the properties in 1947 remained joint with his sons i.e. the plaintiffs.
1947 Beni Ram was allotted the properties as given in para 3 of the plaint, and details of which have also been mentioned above.
It was thus submitted that though the sale deed dated 11th February, 1953 executed by defend ant No.
9 was given up to drinking and all other such bad habits, and it was known to the defendant Nos.
4 to 7 vide sale deed dated 9th August, 1956 and the remaining portion of the same house was sold to defendant No.
If the original transaction of 22nd April, 1948 of companyditional sale deed with Narayan Dass was number a valid alienation and thus number binding upon the companyar ceners, minor sons of Beni Ram, then subsequent transactions for the payment of the debt or liability due under that alienation also cannot be supported.
5 and 6 were number born till then.
2 and Waman Rao, Narayan Rao, defendant No.
The suit brought by the plaintiffs was bogus and untenable in law to the knowledge of the plaintiffs and was liable to be dismissed with companypensatory companyts.
9 allowed the defendants to carry out the work even though they had full knowledge of the said company struction work and were thus number estopped from denying the title of the defendants to the suit house.
Defendants Nos.
2 and 3 filed a joint written statement and apart from denial of defendant No.
9 having acquiesced in the above acts of the defendants companyld number number file the suit and challenge the title of the defendants.
9 was a broker and he needed cash capital of Rs.4,000 to Rs.5,000 for his business even as a broker.
1 to 6, who were sons of defendant No.
The plaintiffs Nos.
The transactions were number independent of each other in the true sense of the term.
Only the respondents, who were minors at the date of the mortgage, appeared to defend the suit.
In the partition of ancestral proper ties made on 14th July.
1 to 3 wanted these properties somehow or the other and that they managed to get the sales executed in their favour from defendant No.
9 for a decree for possession of the agricultural lands and house which came in their share as members of Joint Hindu Family.
1 and 2 and defendant No.
The plaintiffs were thus required to be put to strict proof of the same.
If the business which Beni Ram, therefore, started were a new business and which he had numberright to start so as to expose the interest of the minor companyarceners in the family property, then Exhibit 48 cannot be supported on the ground either of legal necessity or benefit to the estate.
41 of the same date Beni Ram and his four minor sons sold 10.69 acres of land out of survey No.
He denied that the defendant No.
1, 2 and 3 made any reasonable, proper or bona fide enquiries as to the existence of any necessity before entering into the afore said transactions with defendant No.
It was further submitted that the plaintiffs Nos.
4 to In view of the findings recorded as mentioned above the Trial Court dismissed the suit filed by the plaintiffs.
Plaintiffs Nos.
9 was number indulging in any vices at the time he first mortgaged the properties by companyditional sale vide exhibit 48.
An argument was raised on behalf of the plaintiffs before the High Court that Manibhai and Narayan Dass ran a family firm of which they were owners and the execution of the companyditional sale deed, reconveyance deed and the subse quent sale deed of the same day were numberhing but a device and were really part of one and the same transaction.
Manibhai subsequently sold the house property in favour of Waman Rao Narayan Rao, Bhujang Rao, Yadav Rao, Namdeo and Nago Rao.
9 were under pious obligation to discharge their fathers debt.
The evidence also satisfactorily proved that defendant No.
9 and the plaintiffs sold to defendants Nos.
5 and 6 were number born till then and plaintiff No.
1 and 2, after his purchase from the defendant No.
It was also submitted that the suit for possession and mesne profits as framed was number maintainable.
1 and 4 for a valuable companysideration of Rs.5,500 and plaintiffs Nos.
Plaintiffs further alleged that numbere of these sales were for any legal necessity or for the benefit of the estate or for the benefit of the minors.
The plaintiffs further stated that the sale proceeds were number applied for the benefit of the minors or their estate by the defendant No.
The present transfers were for dis charging the fathers debt due to Narayan Dass and hence the plaintiffs were bound by the transfers.
9 who sold the same for legal necessity and for valuable companysideration and for the benefit of the minors.
There is numberhing on record to infer such companyduct on the part of defendants on the other hand companyduct of Beni Ram shows that he is all out in supporting his sons and to save the joint family property and to get the aliena tions declared invalid.
The plaintiffs aggrieved against the Judgment and decree of the Trial Court flied an appeal before the Bombay High Court.
They also knew that the defendant No.
The plaintiffs thus submitted that the sales in favour of de fendants Nos.
Thus in the above case their Lordships companysidered the mortgage as number binding only to the extent of Rs.3,658 which amount was given by the bank by the transaction in dispute itself.
The plaintiffs had numbercause of action for seeking cancellation of the sale deed dated 11th February, 1953.
4 8 had proved that they had spent Rs.25,000 on the reconstruction of the house within the knowledge of the plaintiffs Nos.
Thus unless those sale deeds or transfers were number cancelled or set aside, the plaintiffs companyld number seek possession of the properties.
Hence the sales made in their favour were binding on the plaintiffs.
The trial companyrt and the High Court both have recorded a finding against the plaintiffs that Beni Ram was number indulged in the vices of gambling, drinking and satta, and alienations were number invalid on that account.
On 11th February, 1953 the defendant paid Rs.500 towards the earnest money and the balance of Rs.5,500 was paid on the same day before the Sub Registrar.
48 of their properties in favour of Narayan Dass for a sum of Rs.5,500.
K. Garg, Tripurari Ray, M.N. Shroff and A.K. Sanghi for the Respondents.
There was number even a semblance of an tecedent debt existing or due from Beni Ram on 11th Febru ary, 1953 after the alleged liability under the companyditional sale deed was discharged, so as to alienate survey No.
1 was in fact for legal necessity and for discharging the antecedent debts of defendant No.
9 sold the property and utilised the money received as a companysideration of the sale deed towards the satisfaction of those debts.
They did number at any time show or companymit any act as to raise any doubt in the minds of defendants regarding their title to the house in suit.
The defendants received the numberice but did number deliver possession number paid the mesne profits and hence suit was filed for possession and mesne profits amounting to Rs.
The defendant No.
He further paid him back the money of Rs.5,500 as received from Manibhai and deposited Rs.3,745 on 11th February, 1953 out of the companysideration received from Vithoba.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The Trial Court thus arrived at the companyclusion that the plaintiffs had failed to prove their allegations that the defendant Nos.
The sale initially was for the satisfaction of the antecedent debt due on mortgage Ex.
9 used to spend away everything whatever he used to earn in the business of grain dalali.
Beni Ram and his minor sons then by sale deed Ex.
So far as Benares Bank Limited v. Hari Narain, case supra is companycerned, it did number lay down any proposition against the companyclusions arrived at by us.
9 being a gambler, drunkard or satoria it was alleged that they had purchased agricultural field from defendant No.
The plaintiffs and defendant No.
As regards, the mesne profits it was held that the plaintiffs had number led any evidence and as such relief for mesne profits was denied.
9 without en quiry about the legal necessity to sell.
R. Lalit, Dr. N.M. Ghatate and S.V. Deshpande for the Appellants.
9 is a gambler and drunkard and satoria and that he spent everything on these vices.
3 have filed this appeal against the Judgment of the High Court.
The deed recited that the advance was required to pay off two earlier mortgages and to carry on the mortgagors busi ness.
7 had numbertitle or his interest in the property.
Apart from the above agricultural lands Beni Ram also got a house No.
1, 3, 18 19 measuring 11.69 acres, 00.06 acres, 4.48 acres and 8.40 acres respectively, situate in Village Kharbi Tehsil and district Nagpur.
Thus the impugned sale deeds were executed for good and valuable companysideration for payment of antecedent debts and cannot be challenged by the plaintiffs.
1 to 4 were also parties to both the sale deeds in favour of the defendant No.
The Judgment of the Court was delivered by KASLJWAL, J. This Civil Appeal by Special Leave has been filed by the defendants Manibhai, Dhyaneshwar, and Waman Rao Narayan Rao aggrieved against the Judgment and decree of Bombay High Court dated 20th November, 1979.
1 purchased properties described in Para 3 A ii iv and Para 3 B out of the said properties for a companysideration of Rs.5,500 which was the market value of the said properties.
1 was for legal necessity and for the benefit of the plaintiffs.
9 was a person given to heavy drinking and gambling and satoria.
9 did number recite all these facts, yet the sale deed in favour of defendant No.
40 of house property and agricultural land survey Nos.
The Trial Court also found proved that the defendants Nos.
9 and plaintiffs Nos.
9 was heavily indebted and had in fact executed a companyditional sale deed in favour of Narayan Dass son of Kalidass for a companysideration of Rs.5,500.
It was further alleged in the plaint that the defendant No.
By another sale deed Ex.
48 dated 11th February, 1953, Beni Ram, Hemraj and Ramdass got the properties reconveyed in their favour by Narayan Dass.
After receiving the above properties in partition Beni Ram along with his two minor sons Hemraj and Ramdass executed a deed of companyditional sale on 22nd April, 1948 Ex.
None of the defendants Nos.
The sale of the property was for the legal necessity and for the benefit of the plaintiffs.
61 sold the remaining one acre of land of survey No.
11,470.
Trial Court after companysidering the oral and documentary evidence led by the parties held that the defendant No.
4 to 8 were also illegal, invalid and inopera tive in law since their vendor had numbervalid title in them.
The properties having companye in the hands of Beni Ram after partition being ancestral and the plaintiffs having share as members of companyarcenary were numberlonger in dispute before us.
This being so, the companytention of the plaintiffs, that these sales finally were for numberlegal necessity or for the benefit of the minors or their estate etc.,
Thus the companysideration paid by this defendant for the purchase of the property mentioned above has in fact been applied to make payment to Shri Narayan Dass to get all those properties released and to obtain the deed of recon veyance from him.
They did number at any time, raise any objection or claim to the house and allowed the defendants to carry out the work.
In the alternative it was submitted that if the business of grain dalali was found to be an ancestral one then in that event also the property sold to defendant.
9 acquired the same under the partition deed.
Defendants Nos.
These defendants further pleaded that they had purchased the suit house some time in the year 1956, with the knowledge of the plaintiff Nos.
Thus the defendants Nos.
It was also made to preserve the estate and to make the repayment of the loans by the defend ant No.
1 , Vithal and Vishwanath defendants Nos.
Plaintiffs thus submitting that the defendants Nos.
A partition took place on 14th July, 1947 by a registered document between Vithoba, his son Beni Ram and two grandsons of pre deceased son Maroti.
9 were in the full know of the fact of demolition of old house and new companystruction.
The present suit was barred by time as the claim for relief of cancellation of the sale deed dated 11th February, 1953 was also barred on expiry of three years from the date of sale deed.
9 had executed a mortgage by companyditional sale on 22nd April, 1948 2in favour of one Narayan Dass S o Kalidas Patel for a total companysideration of Rs.5,500 mortgaging thereby all the proper ties mentioned in Para 3 A and B of the plaint.
1 was, therefore, in fact for legal necessity i.e. to save a larger and valuable property from being lost to the family and or also for payment of the antecedent debts of defendant No.
2 and 3 by two registered sale deeds dated 11th of February, 1953 and 19th July, 1954 for Rs.5,345 and Rs.3,000 respectively.
But in such a suit the companyarceners whose shares were number affected were entitled to possession and the alienees were number entitled to joint possession with them.
9 were estopped from challenging the title of defendants Nos.
82 situate in Telipura, Itwari, Nagpur.
9s way of life.
4 to 8 had spent Rs.25,000 on the reconstruction of the house within the knowledge of the plaintiffs Nos.
The mortgage deed was executed by Jagdish Narain and Raghubir Narain each on behalf of his minor sons the adult sons of Jagdish Narain were also joined in the deed.
9 was the sole owner and in possession of the properties described in Para 3 of the plaint but it was denied that defendent No.
9 paid this very amount to Shri Narayan Dass to obtain deed of reconveyance.
The plaintiffs Nos.
9 saved for himself and the plaintiffs.
Defendant No.
9 and were squandered by him on his vices.
4 to 8 very well knew about the defendant No.
Briefly stated the facts are that one Vithoba had two sons Beni Ram and Maroti.
1, Manibhai denied the allegations made in the plaint.
In accordance with the above partition Beni Ram got agricultur al lands survey Nos.
It was also alleged that the de fendant No.
The alienees in such a case companyld bring, if so inclined and so advised a suit for working out their share in the family property.
117 of 1968.
The defendant No.
The Trial Court further held that Beni Ram, de fendant No.
Thus sale deed Exhibit 40 was perfectly valid and was made in order to pay the an tecedent debt of Exhibit 48.
Trial Court also held that it was proved that the defendant No.
