I. N. Modi, J. - (1.) THIS appeal by the defendants Nirmal Singh son of Ujagar Singh and Tara Siugh son of Arud Singh is directed against the judgment and decree of the Civil Judge, Ganganagar dated 20-3-1956, decreeing the plaintiff's suit for declaration and possession.
(2.) THE dispute relates to half of one Murabba No. 23 Measuring 12% bighas situate in Chak 20 BB, Tehsii Padampur. It is common ground between the parties that this Murabba originally belonged to Melaram, deceased grandfather oi: the plaintiff Satnam and of defendant Bishan Singh, and father of defendant Daulatram, who have been impleaded as defendants Nos, 4 and 3 respectively in this suit. It is not disputed that Melaram had two sons Laxmansingh and Daulatram, and that there was a private partition between these two persons as a result of which the Murabba was divided between them in two equal shares. THE plaintiff Satnam and defendant Bishen Singh are sons of Daulatram, THE plaintiffs case is that on the 15th April, 1953, the defendants appellants managed to get a sale-deed executed in their favour with respect to Daulatram's half Murabba and got it registered by the Sub-Registrar, Padampur, on 16-4-1953. It is also disclosed in the plaint that earlier Ujagarsingh, father of defendant No. 1 Nirmalsingh and Jogendra Singh, a first cousin of defendant No. 2 Tarasingh had obtained an agreement to sell this very land in their favour on 26-2-1953, but with this we are really not concerned. THE case of the plaintiff further is that the defendants appellants had purported to purchase the land in suit for an ostensible consideration of Rs. 10,000/- in the following manner. It was mentioned in the sale-deed that a sum of Rs. 3000/- had already been paid to Daulatram and that they would pay a further sum of Rs. 3000/-on a date which was mentioned in a separate agreement executed for the purpose and the balance of Rs. 4000/- was alleged to have been paid before the Sub-Registrar. THE contention of the plaintiff is that the sale was entirely without consideration and that the sum of Rs. 3000/- alleged to have been paid prior to the execution of the sale-deed as "peshgi" or advance had not been paid at all and that the sum of Rs. 4000/which was of course paid in the presence of the Sub-Registrar had been taken back from Daulatram by some kind of subterfuge which was practised on him and that the remaining sum of Rs. 3000/- which was agreed to be paid on the occasion of 'lohdi' had not been paid at all. THE plaintiff further alleged that his father Daulatram had no need to sell the land as he had no debts to repay and that the land had been given on 'theka' and fetched an income of Rs. 600/- per annum and Daulatram was himself an earning member of the family, and, consequently, the sale was entirely without any legal necessity, and, therefore, void and inoperative against him. It was also mentioned in the plaint that Bishansingh, the other son of Daulatram and brother of the plaintiff was un-traceable having disappeared some two years prior to the institution of the suit and, therefore, he was impleaded as a defendant. On these allegations, the plaintiff who was a minor aged ten years brought this suit in forma pau- peris with his mother Mt. Prasanni as his next friend, and prayed that the sale-deed in question be cancelled and declared to be inoperative against him and that a decree for possession with respect to the land in dispute be also awarded in his favour. Deiendant Daulatram allowed the suit to proceed ex parte against him. The defendants appellants resisted the suit. Their case was that the sale of the land in question was for consideration and perfectly proper. It was contended that Daulatram vendor had admitted the receipt of the sum of Rs. 3000/- as advance before due Sub-Registrar and (that the plaintiff's story that a sum of Rs. 4000/-was manoeuvred to have been paid before the Sub-Registrar and it had been really taken back after the parties came out of his office was entirely false and unfounded. As for the balance of Rs. 3000/- the defendants stood by their promise and stated that they would have paid the amount but before the time for the payment thereof came, the present suit had already been filed. The defendants further raised the contention that the sale was for the benefit of the estate. It was admitted in this connection to be correct that the plaintiff did receive a sum of Rs. 600/- annually as lease money for the suit land from one Bachna Chamar but it was contended that Daulatram vendor was a tailor by profession and did not do any personal cultivation and he lived in the Punjab. According to the defendants appellants, the defendant Daulatram knew that the Rajasthan (Protection of Tenants) Ordinance, 1949 (No. IX of 1949) had come into force and so also the Rajasthan Produce Rents Regulating Act, 1951 (No. XV of 1951), and, he was, therefore, under an apprehension that he might lose all his rights with respect to the suit land or that its value might fall down and that the lessee Bachana would not be prepared to vacate the land and so he was anxious to sell his land and, therefore, the sale of the land in their favour was for the benefit of the estate. The defendants also finally contended that the suit had been brought as a result of collusion between Daulatram and the plaintiff, and deserved to foe dismissed. The trial court decreed the plaintiff's suit. Its main findings were (1) that the suit land was ancestral; (2) that the impugned sale had been proved to be for consideration and (3) that it had not been established that the sale was for the benefit of the estate, and, consequently, the plaintiff's suit for declaration and possession was decreed. Aggrieved by this judgment and decree, the defendants have come up iu first appeal to this Court. It may be stated at once that the main controversy in this appeal has centered round the issue relating to the sale being for the benefit of the estate only and the finding of the court below as to the sale having been for consideration was not seriously challenged on behalf of the plaintiff respondent. It may also be pointed out by way of clearing the ground that although the case of the defendants as disclosed in their written statement was that they had no knowledge that the suit land was ancestral in the hands of the plaintiff, the finding of the trial court that the land was ancestral is unquestionably correct, as it is supported by the evidence of the defendants themselves. (See in this connection the evidence of the defendants Nirmalsingh and Ujagarsingh who examined themselves as D. W. 5 and D. W. 7 respectively ). It must, therefore, follow that the plaintiff had a right in this land since his very birth by right of survivorship and that according to the well-established principles of Hindu Law, Daulatram, plaintiff's father, would have the authority to dispose of this land only for legal necessity or for the benefit of the estate. The only defence an which the sale is sought to be supported on behalf of the defendants is the plea that the sale was for the benefit of the estate, and it is in the light of this plea, therefore, that the present appeal requires to be tested. The question which then arises is, what is the meaning of the expression 'benefit of the estate?' is this to all intents and purposes identical with and indistinguishable from the concept of legal necessity or is there some real difference between the two, and if so, what is it? The contention of learned counsel for the appellants is that the doctrine of 'benefit of the estate' should not be confounded With that of 'legal necessity', and whereas the latter would save transactions merely of a defensive nature, the doctrine of "benefit of the estate" is wider and thereunder every transaction which a prudent owner may make for the benefit of the family would fulfil the requirements. As to this, it seems to me that there has been a divergence of judicial opinion in the various High Courts. The leading case on the subject of alienation by a manager of a joint Hindu family is the case of Hunooman Pershad v. Mt. Babooee Mundraj, 6 Moo Ind App 393. What their Lordships of the Privy Council said in the aforesaid case is this: " The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the tiling to be regarded. . . . . . . . . . . Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances, he is bound to see to the application of the money. . . . . Their Lordships do not think that a bona fide creditor should suffer when he has acted honestly and with due caution, but is himself deceived". The above case, among others, was considered by their Lordships of the Privy Council in Palaniappa Chetty v. Devasikamony Pandara Sannadhi, AIR 1917 PC 33, and it was pointed out that no indication was to be found in any of them as to what was the precise scope of the doctrine of the "benefit to the estate". Their Lordships proceeded to point out that it is impossible to give a precise definition ot this term which should apply to all cases and they gave certain illustrations such as the preservation ot estate from extinction, i. e defence against hostile litigation affecting it, the protection thereof from injury or deterioration by inundation, and observed that these would obviously fall within this doctrine. It was, however, pointed out that the difficulty was to draw the fine as to what would be benefits and what not. It also seems to mo clear from a perusal of this case that the two concepts namely of legal necessity and benefit to the estate are not identical, though, I confess, that it is easy enough to see that they would be found to be over-lapping in a large number of eases. What the concept of legal necessity essentially connotes is that the manager is pressed to do certain things by the actual compulsion of events or by a pressure serious and sufficient in law which is signified by the phrases, namely, 'the actual pressure on the estate' or 'the danger to be averted', used by the Privy Council in Hunooman Pershad's case, 6 Moo Ind App 393 or again where the manager is under a pious albeit legal obligation to do certain things such as to perform the marriages of the male coparceners or their daughters or the payment of debts incurred for family business or similar other things. But all this may not necessarily amount to the "benefit to the estate" which to my mind is a broader expression, and may well include certain other purposes. Reverting to Hunooman Pershad's case 6 Moo Ind App 393, these would be covered by the phrase "or the benefit to be conferred upon it" occurring after the phrases "the actual pressure on the estate", "the danger to be averted". Reference may here be made to paragraph 27 Chapter I Section 1 of the Mitakshara translated by Colebrooke where it is pointed out that the father has no independent power to make a gift or sale of immoveable property without the consent of his sons. Paragraph 28 then lays down an exception in these words: " Even a single individual may conclude a donation, mortgage, or sale of immoveable property, during a season of distress, for the sake of the family, and especially for pious purposes". It seems to me that in the above extract the concept of legal necessity is primarily connoted by the expression "a season of distress" while the subject of benefit to the estate by the next following expression "for the sake of the family", which is obviously of a wider import. This brings me to the Full Bench decision of the Allahabad High Court in Jagat Narain v. Ma-thuradas, AIR 1928 All 454. It seems that there was a. conflict of authority in that Court within itself as to the precise meaning and implication of the term "benefit of the estate", one line of decision 'taking the view that an alienation to fall within the phrase "benefit of the estate" must necessarily be of a defensive character, that is, such as would save the estate from some threatened injury, (See Inspector Singh v. Kharak Singh, AIR 1928 All. 403), and the other line of decisions taking a broader view, namely, that the transaction in order to be binding on the estate need not be of a defensive nature pure and simple. (See Mahabir Prosad Misir v. Amla Prasad Bai, AIR 1924 All 379 and Jado Singh v. Natthi Singh, AIR 1926 All 511 ). After an elaborate discussion of the whole matter and a number of rulings, the Full bench held that there was no real justification lor the view that an alienation by the manager binding on the estate must necessarily be of a defensive character, and that if tile transaction was for the benefit of the estate and was such as a prudent owner would have carried out with the knowledge that was available to him at the time, it could not be set aside. It was further laid down that the degree of prudence required would be that which an ordinary man would exercise with the knowledge available to him and the transaction would have to be judged not by the results but what might have been expected to be its results at the time it was entered into, and that the degree of prudence requisite might well the held to be analogous to that which would be demanded of a trustee in an ordinary case. The learned Judges also held that there was nothing in the ease of AIR 1917 PC 33 which should support the restricted meaning attributed to the phrase "benefit of the estate" on the reasoning that the instances given by their Lordships in that case were all of a defensive nature but these instances were illustrative, and their Lordships could not be rightly understood to have said that the transactions justifiable on the principle of the benefit of the estate were limited to such instances only.
(3.) TURNING next to the Bombay High Court in Nagindas v. Md. Yusuf, AIR 1922 Bom 122, the facts were that the adult co-parceners of a joint Hindu family contracted to sell to the plaintiff a house belonging to the family which was in a ruinous condition and which did not fetch any rent. When the plaintiff sued for specific performance of the, contract to sell, the minor co-parceners objected on the ground that there was 110 necessity for sale and that therefore the contract should be held to be inoperative against their interests. It was found that it was not necessary to sell the house as the family was in affluent circumstances. It was held in effect that the transaction was for the benefit of the estate inasmuch as the house was in a dilapidated condition and that the defendants had received a notice from the municipality to pull it down. It seems that the learned Judges were treating the terms "legal necessity" and "benefit of the estate" as interchangeable, and, therefore, they proceeded to hold that the benefit to the family may under certain circumstances mean a necessity for the alienation. One of the learned Judges Shah J. observed however that the expression "kutumbharthe" used in the Mitakshara must be interpreted with due regard to the conditions of modern life. There is a subsequent case of the Bombay High Court in Venkataraman v. Janardhan, AIr 1928 Bom 85 which however appears to have taken a narrower view wherein it was laid down that there was no general power in a Hindu father to alienate property in any way he liked for anything that might be of general benefit to the family, whether or not there was any necessity. It may be pointed out, however, that the earlier case of Nagindas, AIR 1923 Bom 122 cited above does not seem to have been brought to the notice of the Bench which decided the subsequent case. In a still later case in Ragho v. Zaga, AIR 1929 Bam 251, Patkar J. observed that from the decided cases it appeared that the benefit to the estate was to be of a protective character. The case of AIR 1922 Bom 122 was brought to the notice of the learned Judges in this case but they seem to have preferred the narrower line of decision taken in the High Court of Allahabad which line of decisions has been departed from in the Allahabad High Court itself in its Full Bench case of AIR 1928 All 454. It may also be pointed out at this place that the last mentioned case was followed by another Full Bench of the Allahabad High Court in Amraj Singh v. Shambhu Singh, AIR 1932 All 632, though Mukerji J. struck a discordant note, and it was again approved as correct in another Full Bench decision of the same High Court in Ram Nath v. Chiranji Lal, AIR 1935 All 221. A Full Bench of the Lahore High Court in Hayat Ali v. Nem Chand, AIR 1945 Lah 169 after considering a number of cases brought to us notico including the three Full Bench cases of the Allahabad High Court and Division Bench decisions of the Bombay High Court in AIR 1929 Bom 251 and Hemraj Dattubuva v. Nathu Ramu, AIR 1935 Bom 295 expressed itself in favour of the view that the words "for the benefit of the family" have a wider meaning than "mere compelling necessity" and that these cannot be limited to or exhausted by transactions of purely defensive nature. ;