Jagdish Sahai, J. -
(1.)THE question refer red to this Full Bench is as follows:-- "Whether an alienation of ancestral joint family property by a Hindu father is not binding on his son if it was made for inadequate consideration, even if there was legal necessity? In order to answer it correctly, it would be necessary to give in short the facts and the circumstances which have given rise to the question.
(2.)THE appellant, Dudh Nath, filed the suit giving rise to this appeal for possession over the property described at the foot of the plaint (hereinafter referred to as the property in dis pute) on the allegations that the plaintiff his brother, Pashupati Nath, defendant No. 3. and their father, Panna Ram, formed a joint Hindu family which was possessed of ancestral property including the property in dispute and that Panna Ram without any legal necessity first executed a mortgage deed in respect of the property in dispute without consideration and later on on 25-7-1927 sold it to Antu Ram for a sum of Rs. 500. It is alleged that the market value of the property sold is not less than 2500 and the sale was without legal necessity. THE property in dispute consists of some Zamindari pro perty, a house and some fixed rate tenancy. Panna Ram, having been dead on the date of the institution of the suit, was not impleaded as a party. THE defendant No. 1, Sat Narain Ram and the defendant No. 2, Sri Krishna Ram are the sons of Antu Ram, who is also dead. Defen-dant No. 3, Pashupati Nath, did not contest the suit. THE defendants Nos. 1 and 2, Sat Narain Ram and Sri Krishna Ram, however contested it, inter alia, on the plea that the sale-deed was for legal necessity and for proper and adequate consideration.
The trial Court decreed the suit on 12-1-1948, directing the parties to bear their own costs, subject to the payment of Rs 500 by the plaintiff, Dudh Nath, within a period of three months from the date of the decree failing which the suit was to stand dismissed with costs. Against the decree of the learned Munsif dated 12-1-1948. Sat Narain Ram Sled an appeal which was allowed with costs by the Civil Judge. Ghazipur, on 11-3-1950. Against the decree of the learned Civil Judge, dated 11-3-1950 second appeal No. 756 of 1950 was filed in this Court. This appeal came up for hearing before Gurtu, J. who remitted for decision by the first appellate Court the following issue:-- "Whether the value of the property in sun on the date of sale could be found out on the basis of the valuation of similar property or on the basis of profits of the property in suit, the evidence of which is on the record? If so what is the value?"
Answering that issue the learned Civil Judge found that the value of the zamindari property was Rs. 2,400 and that of the house was Rs. 1,333 and odd, but that of the fixed rate tenancy could not be determined. He also held that the property covered by the impugned sale-deed was sold for much below the price than it could have fetched.
(3.)AFTER the receipt of the findings record ed by the learned Civil Judge, the case was again listed before Gurtu, J. for hearing. The learned counsel for Sat Narain Ram relied on Kailash Nath v Tulshi Ram. AIR 1946 All 349, for the proposition that an alienation by a Hindu father of joint family property would be valid only if in addition to the legal necessity it was also proved that the property was not alienated for wholly inadequate consideration. On behalf of Dudh Nath, on the other hand reliance was placed upon the judgment of a Bench of this Court in an application made lor a certificate for appeal to the Supreme Court in the case of Bechu v. Dhanraj, Supreme Court Appeal No. 52 of 1957 arising out of Second Appeal No. 35,6 of 1950, dated 6-12-1957 (SC). In this case Desai and Chowdhry, JJ, while certifying that the case was a fit one for appeal to the Supreme Court of India, observed that the Judicial Committee in Ram Charan Lonia and others v. Bhagwan Das Maheshri, AIR 1926 PC 68, (on which AIR 1946 PC 349 was based) did not intend to lay down that in addition to legal necessity adequacy of price must also be proved to support an alienation of joint family property made by a Hindu father. It has been contended before us that the observations made by Desai and Chowdhry, JJ. in their order certifying Bechu's case, Supreme Court Appeal No. 52 of 1957 arising out of Section A. No. 356 of 1950, dated 6-12-1957 (SC) to be a fit one For appeal to the Supreme Court could not be treated as a decision or a ruling or as a judicial precedent. We will deal with this submission a little later.
In Principles of Hindu Law by D. F. Mulla, 12th Edition, in paragraph 245 on p. 372, it has been stated as below:-- "Although there may be legal necessity justifying "alienation, it is not open to a father or other manager to sacrifice family property for an inadequate consideration. A transfer in such cases is liable to be set aside at the instance of other co-parceners." In support of this statement of law reliance has been placed upon AIR 1946 All 349 (supra) bv Mulla.