G. M. LODHA, J. - (1.) IN this second appeal the appellant plaintiff has challenged the finding of the first appellate court that the property in dispute was sold for legal necessity.
(2.) THE plaintiff filed a suit against the defendants that the sale conducted by the defendant No. 1 Pyarelal in favour of defendant No. 3 was illegal & void because the property was of Joint Family and the defendant was not authorised to sell the property. The defence of the defendants was that the property was sold on account of legal necessity. So far as the jointness of the property is concerned, since the first appellate court has given finding in favour of the plaintiff, it is not necessary to mention and discuss in details that question. Shri Rastogi's submission is that according to well-established principles of Hindu Law when the property alienated, is also owned by a minor, then burden of proof lies on the aline to prove that the sale was made for necessity. In this connection he invited my attention to the para 295 of Hindu Law by N. R. Raghavachariar (Page 324), which reads as under : - "295. Burden of proof of necessity on alienee: - The burden of proof is always on the alien, and in order that a debt or an alienation of joint family property by the manager may be upheld as against the other members of the family, the alien has got to prove either that a necessity existed for the loan or alienation or that he enquired into the necessity for the transaction and that he satisfied himself as well as he could that the manager was acting in the particular instance for the benefit of necessity of the estate. And for this the representations made by the borrower or the alienor are evidence which can be used to corroborate the recitals in the deed. In the case of mortgage by the manager, if the interest agreed to is in excess of the ordinary commercial rate, the onus of proving the necessity for loan as well as for the high rate of interest is upon the mortgagee. A recital in a mortgage deed executed by the manager is not necessarily evidence of the truth of the statements contained therein and does not debar a person from proving other facts not recited in the document which would go either to validate or invalidate the transaction as against the joint family when the question arises as to how far the family property is bound thereunder. Where from the evidence of the income and the legitimate expenses of the family, the necessity for the manager to borrow for the family purposes is ruled out and what emerges is gross mismanagement by him resulting in plunging the family unnecessarily into debts, a creditor who knowing the above circumstances advances a loan to the manager on the strength of his representations as to family necessity without caring to make any enquiry as to the truth those representations cannot claim the protection of a bona fide lender. The following observations of the Privy Council with reference to the effect of recitals in deeds of alienation on the onus of proof, though made with reference to an alienation by a widow apply even in the case of an alienation made by the manager of a joint family. "it is well-established that recitals cannot by themselves be relied upon for the purpose of proving the assertions of fact which they contain. Indeed it is obvious that if such proof were permitted, the rights of reversioners could always be defeated by the insertion of carefully prepared recitals. Under ordinary circumstances and apart from statute, recitals in deeds can only be evidence as between the parties to the conveyance and those who claim under them, But in such a case as the present. Their Lordships do not think that these recitals can be disregarded, nor on other hand, can any fixed and inflexible rule be laid down as to the proper weight which they are entitled to receive. If the deeds were challenged at the time or near the date of execution, so that independent evidence would be available, the recitals, would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by, and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, at recital consistent with the probability and circumstances of the case, assumes greater importance, and cannot lightly be set aside; for it should be remembered that the actual proof of the necessity which justified the deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made proper enquiry to satisfy himself of its truth. The recital is clear evidence of the representation and, if circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then, when proof of actual enquiry has become impossible, the recital, coupled with circumstances, would be sufficient evidence to support the deed. To hold otherwise would result in deciding that a title becomes weaker as it grows older so that a transaction perfectly honest and legitimate when it took place, would ultimately be incapable of justification merely owing to the passage of time. A recent assessment of the value of recitals and the weight to be attached to them by the Supreme Court States: Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alien, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession. " Reference was also made to the decision of this Court in Nirmal Singh Vs. Satnam (1), wherein this Court discussed the principles and observed as under : - (a) Hindu Law - Alienation - Manager - Alienation for "benefit of estated" and for "legal necessity" - Scope of the concepts indicated. The two concepts of "legal necessity" and "benefit of the estated" should not necessarily be taken as identical though they are sometimes overlapping. But all the same, the doctrine of "benefit of the estate" is essentially independent and may save transactions which cannot be justified by the mere principle of legal necessity. What actually amounts to "benefit of the family" or the "benefit of the estate" does not admit of any precise definition and whether the transaction impugned in a particular case can satisfy this principle, must depend on the facts and circumstances of each particular case. Thus where the manager of a joint Hindu family sells family property in order to run a new business and thereby imposes the risks and liabilities of such business upon the other members of the family, it cannot be accepted as something done for the benefit of the estate. Similarly, a mortgage or a sale of family property for the purposes solely of purchasing another property cannot be treated as having been made for the benefit of the estate. In all these cases, there is a central or basic principle which seems to have weighed in the system of Hindu Jurisprudence that immovable property is far more stable and safe than liquid money, and any alienation of the former cannot be accepted as legal unless a very strong case is made out for the same. A predate transaction however, such as the sale of a dilapidated house which is of no use to the family unless it is renovated and such renovation is unnecessary or involves needless outlay of money thereon has been held, as a valid alienation under the doctrin of "benefit of the estate" though it may not be strictly justifiable on the principle of necessity. In all such cases a degree of prudence would be required and the principle which has prevailed is that the prudence must be of an honest or conscientious trustee. Case law reviewed. (b) Hindu Law - - A lienation - Manager - - Benefit of estate-Sale of property to purchase another is not for benefit of estate. The disposal of joint family land by the manager without any legal necessity and for the purpose of purchasing another land elsewhere (which purchase has not been made and may not be made at all) cannot be justified on the doctrine of "benefit of estate. "
(3.) MR. Rastogi also invited my attention to the following observation of their Lordships of Hon'ble the Supreme Court in the decision of Smt. Rani vs. Smt Santa Bala (2) wherein their Lordships observed as under:- Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alien by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which would be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alien, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession. The crux of submission of Mr. Rastogi was that the legal necessity and its proof are not formal matters, particularly when the interest of minor are involved and it means pressure upon the estate, though it does not mean actual compulsion; the pressure over the estate must be serious and sufficient. He also invited my attention to certain lines from the evidence recorded by the trial Court in which the defendant's witnesses particularly D. W. 5 Hardwari Lal admitted in the cross-examination that he has got no accounts and even though he is doing the business of agency of trucks, he failed to produce any accounts for proving that Rs. 8,000/- were spent on the treatment of the ailment of defendant No. One's wife. ;