Kapur, J. - (1.) This appeal is brought by the plaintiff Puran Singh against an appellate decree of District Judge M. R. Bhatia dated 6-4-1949 reversing the decree of the trial Court and thus dismissing the plaintiff's suit.
(2.) The facts of the case are that Bishan Singh defendant No. 2 sold the land in dispute which was 6 'bighas' 12 'biswas' and 5 'biswansis' for a Sum of Rs. 2,290/by a deed of sale dated the 1st July 1940. Out of this consideration money Rs. 1,520/- was payable on two previous mortgages -- one, a mortgage of the and in dispute for Rs. 1,400/- and the other a mortgage of the house for Rs. 120/-. The former was a mortgage with possession where the interest equalled the produce and the latter was an interest carrying mortgage. There was also Rs. 70/-- for payment of registration expenses. A suit was brought by a third degree collateral to challenge the sale on the ground of its being without consideration and necessity. The District Judge has found Rs. 1,520/-for necessity and the question that has been raised in this second appeal before me is whether this is sufficient to support the sale.
(3.) Their Lordships of the Privy Council in --'Sri Krishan Das. v. Nathu Ram', AIR 1927 PC 37 (A), held that a sale of joint family property where the consideration was Rs. 3,500/- and necessity proved was for Rs. 3,000/-, was a good sale because the real question to be considered in that case was whether the sale itself was justified by necessity. At p. 41 their Lordships said: "In any case where the sale has been held to be justified, but there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes, and for the benefit of the family. This is in line with the series of decisions already referred to, in which it was held that where the purchaser acts in good faith and after due inquiry, and is able to show that the sale itself was justified by legal necessity, he is under no obligation to enquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale." The same rule has been stated by Mulla in his Hindu Law at p. 295. This Privy Council case was considered by a Division Bench of the Lahore High Court in -' Hakam Ali v. Milkhi Ram', AIR 1932 Lah 193(2) (B), where it was held that sale could not be deemed for legal necessity where it was affected to pay off the amount of mortgage on the property. Addison, J., there said: "It cannot therefore be held that there was any necessity to effect the sale of the property merely to pay off the amount for which the property was mortgaged" and he referred to -- 'AIR 1927 PC 37 (A)'. No case has been cited where -' Hakim Ali's case, (B)', was followed though it was referred to by Munir, J., in -' Samund Singh v. Rakha Ram', AIR 1943 Lah 22 (C), but there the learned Judge went on the question of actual pressure on the estate, and if I may say with great respect the meaning of the phrase "actual pressure on the estate" is not what the learned Judge thought it to be.;