Bishun Prasad Singh and Others vs Narsingh Das

Dawson Miller, C.J.—This in an application far leave to appeal to His Majesty in Council from a decision of this Court, dated the 4th January last.

The applicants are the defendant* in the suit. The defendants claimed the property under a sale made to their father by the grandmother of the present plaintiff. The plaintiff is the reversioner of the estate of the grandfather after the life-interest of his grandmother and her daughter.

The lower Court awarded a decree in favour of the plaintiff on the ground that the transfer made by the grandmother was not justified by legal necessity. On appeal to this Court that decision was varied, the Court finding that out of a total sum of Rs 3,800, the purchase price, Rs. 1,412 was justified by legal necessity at the time of the transfer. The Court accordingly varied the decree of the Trial Court by ordering that the plaintiff''s title to the property in question should be declared and that he should recover possession'' thereof upon condition that he first paid to the defendants Rs. 1,412 with interest from the date of the decree. From that decision the defendants seek leave to appeal to His Majesty in Council.

So far as the decision appealed from is concerned, it was one of affirmance and decided upon questions of fact and, no question of law arises. It is contended, however, by the defendants that the Court having come to the conclusion that the sale of the property was justified to the extent of Rs. 1,412 for which there was necessity on the part of the family at that time, the Court ought to have ordered that there was valid transfer of the property, at all events to the extent of rather mire than a third of the property, and, therefore, instead of Retting aside the sale ought to have confirmed the sale of a proportionate part of the property. It appears that for many years it has been the practice in such cases, where a portion of the purchase price is shown to have been justified by "legal necessity, to set aside the sale upon payment by the plaintiff of that portion. Even if this question might possibly be considered a substantial question of law, it is not necessary to decide it in the present case, for, assuming that the defendants were entitled to that proportion of the property which Rs. 1,214 bears to Rs. 3,800, the value of their appeal would not come up to the statutory requirements, The value of the whole property is said to be Rs. 10 000, Therefore, if the defendant should be successful on the point of law in their appeal to His Majesty in Council, the result would be that they would only recover property of the value of a slightly more than a third of Rs. 10,000 instead of its cash equivalent. For these reasons, it does not appear to me that this is a propar case in which to grant leave to appeal to His Majesty in Council.

The respondent is entitled to costs; hearing fee five gold mohurs.

Mullick, J.

I agree.