K.L.BAPNA, J. - (1.) THIS is a second appeal by the plaintiff in a suit for recovery of money.
(2.) THE plaintiff Hiralal and one Ram Chandra were vendees of a certain property sold by Kishanlal on 28 -6 -1938, for a sum of Rs. 1150/ -. On the 9th of July, 1938, Jagdish instituted a suit on the allegation that he was the adopted son of Kishan Lal, and the property was ancestral property, and that the sale had been made without any legal necessity, nor for an antecedent debt. That suit had a chequered career, but the final decision oE the High Court of Alwar was given on 14 -2 -1941, that the property was ancestral, that Jagdish was the adopted son of Kishanlal. that there was no legal necessity for the sale, and that the debt, which could be called antecedent, was only a sum of Rs. 290/ -. The High Court set aside the sale on the condition that Jagdish paid Rs. 290/ - to the vendees before he obtained possession. Hiralal filed the present suit on 27 -11 -1945, on the allegation thathe had advanced half of the consideration for the sale and it was stipulated by Kishanlal in the deed of sale, that he would be responsible for the amount of consideration in case the sale is set aside. It was mentioned that Kishanlal had committed fraud! upon the vendees, inasmuch as he did not disclose the name of Jagdish as his adopted son at the time of the sale. After adjusting Rs. 145/ -, which was half of Rs. 290/ - deposited by Jagdish, he claimed Rs. 700/ - made up as follows : Half ofthe sale consideration Share of the costs in defending the earlier suitInterest on Rs. 575/ - for a period of 7 years Rs. 575/ - Rs. 94/ - Rs. 176/ - Rs. 845/ - Less RS. 145/ - TotalClaim Rs. 700/ - The cause of action was said to have arisen on 14 -2 -1941. Ram Chandra the co -vendee, had also been made a party in the suit. Jagdish contested the suit, and also pleaded that the sale made by Kishanlal was without consideration. Kishan Lal had died in the meanwhile, and the suit, as stated above, was instituted against Jagdish.
(3.) THE trial court dismissed the suit by judgment dated 24 -5 -1950. The finding of the trial court was that the sale was without consideration. On appeal, the learned District Judge held that the question as to the passing of consideration was res judicata. The Court of first appeal in the earlier case had held that the sale price had been paid to the vendor, and the High Court in setting aside the sale on payment of Rs. 290/ - had impliedly accepted that finding. The learned District Judge was, however, of opinion that the contract of sale was entered into between Kishanlal on the one hand and Hiralal and! Ramchandra jointly on the other. He was of opinion that the claim which arose out of that contract could not be split up, and the present suit offended against Section 45 of the Contract Act. He held that in any case the plaintiff was not entitled to Rs. 94/ - which he incurred as costs. He held the plaintiff to be entitled to interest, if his claim, for the principal amount was enforceable. He was of opinion that such interest should be recoverable from the date of the sale deed at the rate of 1 per cent. p.m. as covenanted in the sale deed. He, however, dismissed the appeal as the suit offended against Section 45 of the Contract Act. ;