Mitter, J.

1. The plaintiffs in this case are the sons of Raja DunputRai. It appears that, on the 14th April 1874, Raja Dunput Rai sold the whole ofthe disputed mouzahs to one of the defendants, and the ancestor of the otherdefendants, for Rs. 10,000. One of the plaintiffs in this case is an adult, andthe other plaintiff is still a minor. The present suit was brought on the 18thJuly 1881 to recover possession of a 10-anna 8-pie, that is, a two-thirds shareof the mouzahs sold, on the allegation that there was no such valid necessityas would justify the sale of the family property by the father while theplaintiffs were minors. If this suit be treated as one for partition, the plaintwas open to the objection that the whole of the family property was notincluded in it. This is not a mere technical objection because on partition ofthe whole of the joint family property the mouzahs in dispute might undercertain circumstances fall entirely to the fathers share. For example, ifthere be any other property belonging to the joint family, the value of whichis equal to a 10 anna 8 pie share of the disputed mouzahs, a Court dealing withthe question of partition might think it equitable to allot the whole of thedisputed mouzahs to the fathers share, assigning the other property of equalvalue to the sons.

2. This objection, however, was not taken by the defendantsin the written statement. The defendants defended the suit upon the ground thatthe sale was made under such circumstances as would justify the sale by thefather under the Mitakshara law.

3. The lower Court dismissed the suit, finding in favour ofthe defendants plea taken in the written statement. But upon the evidence adducedin the lower Court we are not satisfied that there was any valid necessity forthe sale, and we are unable to agree in the lower Courts conclusion upon thispoint.

4. The main ground upon which we are of opinion that thatconclusion is not correct is, that the case of necessity, which was attemptedto be proved upon the evidence, was not the case which was put forward in thewritten statement. In the 11th paragraph the defendants said: "The realcause of alienation is "that the income derived from the disputedproperties was very small, and "that the revenue and other necessaryexpenses could not be paid out of the "same, and as the residence of thefather of the plaintiffs was at a great "distance from this district,there was no hope of enhancing the jumma also. "The consideration moneyoffered on behalf of your petitioners was very large, "considering theamount of income derived therefrom. He considered it to be "advantageousto invest that money in another business, and consequently sold "the said propertiesin lieu of Rs. 10,000 inclusive of all expenses." But upon the evidencethe defendants attempted to prove that this money was required for meeting theexpenses of celebrating the marriage of the vendors daughter. This case ofnecessity was neither recited in the conveyance nor set up in the writtenstatement in this case. Under these circumstances it seems to us that theevidence adduced by the defendants to establish it should not be accepted astrue until its omission from the written statement is satisfactorily explained.No such explanation has been offered.

5. But although we are unable to agree in the opinion of thelower Court upon this point, still we think upon another ground the decree madein the case is correct.

6. In this case there is no dispute that Rs. 10,000 was paidby the vendor for the property in suit to the plaintiffs father; and supposingthat that sale is not binding upon them, under the circumstances of this case,they, in our opinion, cannot recover the property without refunding thepurchase-money to the defendants.

7. The learned vakeel for the plaintiffs, appellants, citedon this point the Full Bench decision in Modhoo Dyal Singh v. Golbur Singh 9W.R. 511 but it seems to us that this Full Bench Ruling has been virtuallyoverruled by the Judicial Committee of the Privy Council in Girdharee Lall v.Kanto hall L.R. 1 IndAp 321. It was laid down in that case that under theMitakshara law the son is bound to pay out of the ancestral property in hishand the debts contracted by his father, unless he can show that these debtswere contracted for immoral purposes mentioned in the Hindu shastras. Now, ifthe sale be set aside in this case, it is clear that the purchaser would beentitled to recover the purchase-money from Raja Dunput Rai, the father of theplaintiffs. It would be, therefore, their fathers debt, and unless they showthat it was contracted for immoral purposes mentioned in the Hindu shasters thewhole of the joint family property, including the disputed mouzahs in theirhands, would be liable for it.

8. It follows, therefore, tha.t the plaintiffs in this casecannot recover the whole or any portion of the property sold without refundingthe whole of the purchase-money to the purchasers, defendants, unless they showthat this money was raised by the father for immoral purposes. Upon this pointthey adduced some evidence in the lower Court, and we agree with that Courtthat it is not reliable.

9. The plaintiffs, through their vakeel, intimated that theywere willing to take a decree for the whole of the disputed mouzahs on thecondition of their refunding the purchase-money, but the suit being not for thewhole of the property sold, we cannot award a decree in their favour for it. Inthis suit they are entitled to a decree for the share claimed if they wouldagree to pay the whole of the purchase-money to the defendant purchasers. Butthe learned vakeel who appeared for them informed us that his clients wereunwilling to take a decree upon this condition.

10. We are, therefore, of opinion that the plaintiffs suitshould be dismissed. Although we do not agree with the lower Court in thereasons given in the judgment, we think that upon the ground mentioned abovethe suit was rightly dismissed.

11. The appeal is dismissed with costs.

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Koer Hasmat Rai and Ors. vs. Sunder Das and Ors. (06.03.1885- CALHC)