- (1.) THE only point for determination in this appeal is whether the sale of the disputed house by Kalyanmal. Nathmal and Chandmal on 22nd June, 1948 for Rs. 2500/- in favour of Moolchand defendant No. 4 was for the benefit of the estate. It appears that Fatehraj had five sons. Three of them i. e. , Kalayanmal, Nathmal and Chandmal had attainted majority on the date of the impugned sale. THE two other sons namely Manmal and Gumanmal were minors. THE house is situated in Nagaur and from evidence it appears that the family was living for the last 20 years in Jodhpur. It also appears that the house was an old one having been built about 100 or 125 years back. THE sale deed by Kalyanmal, Nathmal and Chandmal in favour of defendant No. 4 was registered on 24th June, 1948. Defendant No. 4 sold the house the very next day on 25th June, 1948 for Rs. 6500/-to defendant No. 5 Lalchand. Both Moolchand and Lalchand were impleaded as defendants in this case. Plaintiff Manmal who had filed the suit alleged that the sale in question was neither for legal necessity nor for the benefit of the estate and therefore, not binding on him and should, therefore be set aside.
(2.) THERE is no dispute that all the five brothers were living jointly and constituted a coparcenary. It is also not disputed that the three brothers who sold the house were managers of the family. Defendants Nos. 4 and 5 contested the suit. Defendant No. 4 said that the house was sold for family necessity. The plea of defendant No. 5 was that he was a bonafide purchaser for value. The trial court framed several issues and on the main issue regarding the family necessity for the sale came to the conclusion that the house was in a dilapidated condition and its sale was, therefore, for the benefit of the family and was binding upon the plaintiff. The same view was upheld in appeal by the learned District Judge, Merta. Plaintiff has now come in second appeal. Learned counsel for the appellant contends that it was not the case of the defendants that the house was in dilapidated condition and was, therefore, sold for the benefit of the estate. The only defence raised by the defendants was that it was sold for legal necessity but no evidence was led to show that there existed any legal necessity for this alienation. He further contends that no specific issue was framed on this point that the sale was for the benefit of the estate. At any rate the learned counsel contends that the evidence relied upon by the courts below does not establish that there was any benefit to the estate. He has drawn my attention to the recitals in the sale deed and has urged that it does not mention that the whole house was in a ruined condition. He has also drawn my attention to this fact that the transaction of sale was not a fair one and the sellers i. e. , his elder brothers acted imprudently as is clear from this fact that the house fetched Rs. 6500/- the very next day. From all these circumstances learned counsel asks me to hold that the sale was not for any legal necessity and is therefore, not binding upon the plaintiff. On the other hand learned counsel for the respondents contends that it is a concurrent finding of fact that the house was in a dilapidated condition and its sale was for the benefit of the family. In my opinion, it cannot be said on the materials on record that the finding at which the courts below have arrived is incorrect. It is true that in the written statement it was not stated that the house was in a dilapidated condition and the sale was made for the benefit of the estate and the plea of the defendants was only this that the house was sold for valid family necessity. But both the parties have led evidence regarding the state of the house at the time of its sale. No party seems to have been prejudiced nor has it been suggested before me that the absence of any specific issue on the above point has caused any prejudice to the appellant. Issue No. 2 (1) and 2 (b) were in the following terms : 2 (a ). Whether the house in dispute is a coparcenary property? 2 (b ). If so, whether the sale dated 22nd June, 1948, by defendants Nos. 1 to 3 was made as managers of the family for legal family necessity and is binding upon the plaintiff? and were wide enough to cover the point in dispute. Ramratan (D. W. 2) has stated that it was a very old house and was in a dilapidated condition and at least Rs. 15000/-were required to be spent before it could be fit for habitation. Javrimal (D. W. 5) who acted as a broker in the sale transactions has stated that the condition of the house was very bad and it was very difficult for the vendors to get it repaired. He has further stated that with the exception of one or two apartments most of the apartments in the house had fallen down. Lalchand (D. W. 7) has stated that the house was in a dilapidated condition. On behalf of the plaintiff his two brothers namely Nathmal and Chandmal who had sold the house to defendant No. 4 appeared as witnesses. Chandmal went to the length of saying that he had merely signed the sale deed as he was asked by his other two brothers to do so. Nathmal (P. W. 3) however, admitted that the house was in a dilapidated condition and it was sold for the benefit of the family. In cross-examination he too stated that he had seen the house last about 15 years back and had not seen it at the time of its sale and he came to know about its condition from Javrimal. He admitted that they had no bank balance with them. Manmal plaintiff also examined himself and though he tried to prove that the house was in a good condition, yet in cross-examination he betrayed complete ignorance about the condition of the louse. He could not even describe as to how many rooms there were in the first floor of the house. He admitted in cross-examination that he had seen the house long back and when he filed the suit he only saw it from the house of one Sheoprasad from outside. On this state of evidence the courts below cannot be said to be unjustified in holding that the house was in a dilapidated condition. It is also clear from the evidence on record that the family was living at Jodhpur for a number of years and the house was not being looked after by any one. It also seems that it was not yielding any profit to the family. The financial position of the family was not such that they could have spent a large sum of money required for the renovation of the house. The question therefore, is whether the sale of the house in these circumstances can be regarded for the benefit of the estate on not. In my opinion when the family was not living at the place where the ancestral house was situated and it was lying uncared for in a dilapidated condition for about two decades and was not yielding any profit to the family, its sale by the Managers of the family would be for the 'benefit of the estate' so as to justify the alienation and would be binding upon the minor members. In Nagindas Manaklal Vs. Mahomed Yusuf Mitchella (1) - a case on which both parties have relied, it was held that: "the term 'necessity' must not be strictly construed. The benefit to the family may under certain circumstances mean a necessity for the transaction. The expression used must be interpreted with due regard to the conditions of modern life. There is no reason why a restricted interpretation should be placed upon the word 'necessity' so as to exclude a case like the present in which defendants Nos. 1 and 2, on all the facts proved, properly and wisely decided to get rid of the property which was in such a state as to be burden to the family. " Lastly with regard to the contention of the learned counsel that it was an imprudent transaction because the very next day the house fetched Rs. 650c/- although it was sold for Rs. 2500/ -. Firstly, it is not proved on the record that in fact defendant No. 4 sold it to defendant No. 5 because defendant No. 1 in his written statement stated that actually he had sold this house for Rs. 2500/- and 6500/- were mentioned only to defeat the right of preemption. It is true that the entries in the account book of defendant No. 5 shows that he had advanced Rs. 6500/- to defendant No. 4, but this matter was never brought in issue and there is no finding that in fact the home was sold for Rs. 6500/ -. The price which a party may be willing to pay depends upon his personal needs. It may be that defendant No. 5 was more in need of this house and even assuming for the sake of argument that he paid Rs. 6500/- to defendant No. 4, that would not prove that the transaction on the part of defendant Nos. 1 to 4 was imprudent. It was not the plaintiff's case that the house was worth more than that it was sold for. Even in his statement the plaintiff did not say that the house was worth more than Rs. 2500/ -. That being so it cannot be held that defendants Nos. I to 3 acted imprudently in selling the house in dispute for Rs. 2500/ -. I am satisfied that the finding of the courts below that the sale of the house by defendants No. 1 to 3 is binding upon the plaintiff, is correct. This appeal has got no force and is hereby dismissed. In the circumstances of the case I make no order as to costs. . ;