- (1.) THE appellants purchased 10 bighas of agricultural land in village Sedhuwali of Hanumangarh tehsil from Gangaram (defendant-respondent) on Phalgun Bad 14, Smt. 2014, corresponding to February 17, 1958, for Rs. 5,500/ -. It was stated in the sale deed that the sale was made because the vendor badly required money for his household expenses. Possession of the land was delivered to the purchasers. Gangaram had an adopted son Pema, who immediately instituted the present suit on May 7, 1958, to avoid the transfer, on the ground that the land was ancestral property and his father Gangaram had made the sale only to deprive him of it because of their strained relations and that, as a matter of fact, the sale was without consideration or legal necessity. Further, the plaintiff took the plea that Gangaram was a man of bad character and was addicted to drinking, so that any debt contracted by him was for an immoral purpose.
(2.) THE purchasers took the defence that the suit property was the self acquired property of vendor Gangaram, that the plaintiff was not Gangaram's adopted son and that there were antecedent debts and other legal necessity for which it became necessary for Gangaram to make the sale. It was pleaded that Gangaram had to repair the house; which was in a dilapidated condition, he required some money for his own maintenance and he had to spend a sum of about Rs. 500/- by way of 'bhat' on the occasion of the marriage of his sister's son Patram. As regards antecedent debts, it was stated that Gangaram owed Rs. 400/- to Udaram, Rs. 2500/- to Birbal, Rs. 200/- to Poora, Rs. 660/- to Baiti and Rs. 1000/- to Bhera and Hazari. It was denied that Gangaram was a man of bad character or was addicted to drinking. Gangaram took almost similar pleas, except that he admitted having taken the plaintiff in adoption and did not give the details of the antecedent debts or the other legal necessity. A number of issues were framed by the Civil Judge of Suratgarh, who tried the suit, covering the various points in controversy between the parties. He reached the conclusion that the plaintiff was Gangaram's adopted son that the suit land was ancestral property and that Gangaram was not a man of bad character and was not addicted to drinking. He also held that the sale in question was proved to be with consideration. As regards legal necessity, the learned Judge held that the defendants had not succeeded in proving the alleged antecedent debts of Birbal, Poora, and Bhera and Hazari amounting to Rs. 3700/-out of a total of Rs. 4760/- and that the antecedent debts were due to Uda and Basti amounting to Rs. 1000/ -. Rs. 500/- were found to have been spent on the repairs of the house and Rs. 500/- on the occasion of Patram's marriage by way of 'bhat'. It was also held that a sum of Rs. 750/- may be taken to have been required for the maintenance of Gangaram. Thus it was held that the legal necessity had been proved to the extent of Rs. 2750/ -. The suit was therefore decreed on August 13, 1959 by granting a declaration that the sale was void as against the plaintiff to the extent of the remaining sum of Rs. 2750/- and that the plaintiff was entitled to possession along with Gangaram and the purchasers to that extent. The purchasers preferred an appeal to the District Judge of Ganganagar, but it was dismissed on February 11, 1960, and this is why they have preferred this second appeal. It has been argued by Mr. G. M. Lodha, learned counsel for the appellants, that the two courts below lost sight of the defendant's plea in paragraph 16 of the written statement that even if the plaintiff's adoption by Gangaram was proved, he had no right or interest in the property during his (Gangaram's) life time. According to the learned counsel, this was meant to be a plea based on that condition in adoption deed Ex. 1 dated March 14, 1946, in which it was stated that whatever rights in movable and immovable property were vested in Gangaram, would be available to the adopted son after his death. On this assumption, the learned counsel has further argued that such a condition in the deed of adoption was quite valid and it was sufficient to show that the plaintiff had no right to the suit during Gangaram's life time and that he could not therefore maintain the suit. The argument has been supported by reference to Mt. Gulab Kunwar vs. Askaran (1) and an unreported decision of this Court in Sohanlal vs. Birbal decided on July 2, 1964 (2) as well as Krishnamurthi Ayyar vs. Krishnamurthi Ayyar (3 ). To for close this argument it would be sufficient to say that no such plea has been taken in paragraph 16 of the written statement. What has been pleaded is that the plaintiff had no right in Gangaram's property during his life time, and this plea is co-related to the earlier plea in paragraph 2 that the suit property was Gangaram's separate property. However, even if it is assumed, for the sake of argument, that a plea of the nature spelled out by Mr. Lodha was taken in the written statement, the fact still remains that no issue was joined in respect of it, so that it was not put to trial. The question whether the adopted son (Pema was a major and had given his consent to the aforesaid clause restricting his rights in the property during Gangaram's life time, was a question of fact which had to be decided. It is true that Pema's age has been mentioned as 18 years in the adoption deed, but his statement in the trial court that he was 22 years old on March 16, 959 shows that he was a minor on the date of the adoption and he was not challenged in respect of that assertion. It was therefore a question of fact whether Pema or his natural father had agreed to placing the restriction in question on his rights in the property of his adoptive father in the manner alleged by Mr. G. M. Lodha, and the point could have been tried and decided if the defendants had thought it proper to raise it. Since this was not done, and since the point was not urged in any of the courts below, it cannot be allowed to be raised for the first time in this court. It may also be mentioned that the learned District Judge has clearly stated that only the findings of the trial court on issues Nos. 1 and 3 were challenged before him and that no other point was made for his consideration. When therefore the argument now urged by Mr. G. M. Lodha was, to say the least, waived in the two courts below, I cannot permit its consideration at this late stage. It has next been argued that the findings of the two courts below, that there was legal necessity, including that on account of antecedent debts, for a total sum of Rs. 2750/-, even though concurrent, has been vitiated because the learned District Judge has misread 'khata' Ex. A. 1/d. W. 4 under which Gangaram owed Rs. 2500/- and interest to Birbal. The mistake it has been urged lay in the learned District Judge's remark that the document was unstamped even though it bore the stamp. I have gone through the impugned judgment, but I am not satisfied that the document has been misread. The amount which was said to have been loaned by Birbal was quite substantial and bore heavy interest. The learned trial Judge took the view that as the liability was not undertaken by means of a writing on a non-judicial or impressed paper of the required value, it was not above suspicion, for a 'khata' of this nature could have been made up at any time. It was that argument which impressed the learned District Judge and I have no doubt that he adopted it because while observing that the document was not stamped he spoke, in the same breath, that it could be made up at the choice of the concerned parties. It is therefore not correct to say that the learned Judge was guilty of misreading the document. Moreover, he has given other reasons why he agreed with the trial court's view that the loan in question had not been proved to be genuine and there is no substance in the argument that the concurrent finding of fact of the two courts below has been vitiated by any substantial error. It may here be mentioned that Mr. C. M. Lodha faintly tried to challenge the other concurrent findings of the two courts below that the two loans said to have been taken from Poora as well as Bhera and Hazari had also not been proved, but he realised, on the objection of the respondents' learned counsel, that he had not challenged them in the memorandum of appeal and that he could not assail them in this Court. However, the learned counsel has made another submission. He has argued that in a case where money is raised by the father to pay off an antecedent debt, the son who challenges the alienation should prove not only that the debt was immoral but also that the purchaser had notice that it was tainted with immorality. The argument seems to have been inspired by the observations of their Lordships of the Supreme Court in Luhar Amritlal Nagji vs. Doshi Jayantilal Jethalal (4) on which Mr. Lodha) has placed reliance, for there is otherwise no factual basis for it. The plea which was raised in the trial court was that defendant Gangaram was a man of bad character and was addicted to drinking and that the sale deed was liable to cancellation for that reason. The trial court decided the issue against the plaintiff and the matter was allowed to rest there. There is therefore no basis at all for this argument. No other point has been urged on the factual side of the case and the concurrent finding of the two courts below that there was legal necessity only for the sum of Rs. 2750/-, and not for Rs. 5500/-, does not call for any interference. The question is whether the sale could be said to be justified in its entirety? This indeed is the main point of controversy. Mr. C. M. Lodha has strenuously argued that the sale should be upheld because it cannot be set aside simply for the reason that there was no legal necessity for the balance, or because the balance was not shown to have been appropriated for legal necessity. The learned counsel has placed reliance on Sri Krishna Das vs. Nathu Ram (5), Niamat Rai vs. Din Dayal (6), Suraj Bhan Singh vs. Shah Chain Sukh (7), Gauri Shankar vs. Jiwan Singh (8), Ram Sundar Lal vs. Lachhi Narain (9), Gajanan Sitaram vs. Sitaram Raghunath (10) and Ramadhin Singh vs. Gajraj Singh (11 ). Further, he has argued that the partial necessity established by the defendants is quite sufficient to sustain the sale for it was not possible for Gangaram to sell a lesser portion of the property. Legal necessity for purposes of a case like the present is a compendious term and includes payment or debt incurred for family business or other necessary purpose. In the case of the father, it is enough to show that the debt is an antecedent debt, even if it is his own debt, provided, of course, that it was not incurred for immoral or illegal purposes. The manager of a joint Hindu family can alienate the family property, but his power is analogous to that of the manager of an infant heir. This was laid down by their Lordships of the Privy Council as far back as 1856 in Hunooman Persaud Pandey vs. Mussamat Babooee Munraj Koonwerje (12 ). Their Lordships held 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". They further held 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 that, under such circumstances he is not bound to see to the application of the money. The actual pressure on the estate and the danger to be averted are considerations which usually weigh in deciding the question of such legal necessity. Who then has to prove the legal necessity? On this point also, there is now no room for any controversy for it has been laid down by their Lordships of the Privy Council in Ravameshwar Prasad Singh vs. Chandi Prasad Singh (13) that it is for the transferee to establish the necessity. He has to prove either that (1) there was legal necessity in fact, or (ii) that he made proper, reasonable and bonafide inquiry as to its existence. If he fails to prove the legal necessity as a fact, it is still open to him to prove the other alternative that he had made the inquiry referred to above in a proper and business like manner, as a prudent man would make in such a case. The law, in fact, makes it sufficient for the transferee to prove that the facts represented to him, on his inquiry, were such as, if true, would have justified the transfer. The reason is that a bonafide creditor or purchaser is not allowed to suffer if he has acted honestly and with due care and caution, but is himself deceived. So if the purchasers had so chosen, the burden on them in the present case would have been no heavier than proving the reasonable and bonafide inquiry. It is, however, not their case that they are entitled to this alternative, namely, that they made proper, reasonable and bonafide inquiry as to the existence of the necessity. This has been frankly conceded by Mr. G. M. Lodha. Their case would therefore stand or fall on the basis of the proof of legal necessity as a fact.
(3.) AS has been stated, the purchasers have been able to prove legal necessity only for Rs. 2750/- and not for balance of an equal amount, as the sale was of the entire holding measuring 10 bighas, for Rs. 5500/ -. In a given case, the proof of partial necessity may sustain a sale for a larger amount if it is shown that the money required for the purpose of meeting the legal necessity could not be raised in any other manner or that the residue was quite small. This is so because, as has been stated, the manager of a joint Hindu family has the same responsibilities as the manager of an infant heir and he is not allowed to prejudice the rights of his co-owners except on proof of legal necessity for the transfer. He should therefore guard the joint family property as far as he can and should sell so much of it as will meet the necessity : Baboo Luchmeedhur Singh alias Puchoo Singh vs. Ekbal Ali (14 ). In the instant case, it does not require much argument to say that the sale was justified only for the purpose of raising Rs. 27;. 0/- and the transfer of the whole of the agricultural holding of 10 bighas for Rs. 5500/- cannot be sustained because there is not an iota of evidence to show that it was not possible to sell a lesser portion of that property for equal advantage. AS a matter of fact this was not taken even as a plea or as an argument in the two courts below. It cannot therefore be said that the appellants have discharged the burden of proving the existence of the legal necessity for the sale of the entire property. It may be mentioned that the mere fact that a fair or full price was paid by them for the conveyance, is not sufficient by itself to sustain the transaction, as has been held by their Lordships of the Privy Council in Ravaneshwar Prasad Singh's case (13) referred to above. Another important case is that of Deputy Commissioner of Kheri vs. Khanjan Singh (15 ). The consideration in that case was made up of three parts - firstly, Rs. 7,080/- due under an earlier decree; secondly, interest on that amount subsequent to the decree; thirdly, a fresh advance of Rs. 7,280/- in cash. Their Lordships of the Privy Council found that interest was not payable and there was no evidence for the cash payment of Rs. 7,280/-The sale for Rs. 7,080/- was therefore set aside and the suit was decreed for possession, with mesne profit, the sum of Rs. 7,280/- having been allowed in deduction therefrom. Mr. C. M. Lodha has placed reliance on Ramadhin Singh vs. Gajraj Singh (11), but it was a different case where the plaintiff had not produced any evidence to rebut the presumption which the consent of the reversioners had raised. Moreover, both the vendor and the vendee had died and more than 50 years had passed since the sale, so that all the direct evidence that was available at the time of the sale had disappeared. It was therefore held that it was not reasonable to expect such full and detailed evidence of the circumstances which gave rise to the sale as in the case of an alienation at a mere recent date, and that "presumptions are permissible to fill in the details which have been obliterated by time " In the instant case, on the other hand, the sale was challenged within a period of less than three months, so that all the evidence was available to the parties and there was no consent at all of the other co-owner so as to give rise to any presumption of legal necessity. Ramaqbin Singh's case cannot therefore avail the appellants. The question of appropriation raised by Mr. C. M. Lodha is not really material because the defendants based their claim on their plea that there was legal necessity as a fact to justify the sale of the entire property for Rs. 5500/ -. It would be sufficient to refer to Sri Krishan Das' case (5) on which so much reliance has been placed by the learned counsel. That was a case in which legal necessity had been proved to the extent of Rs. 3,000/- for a sale for Rs. 3,500/ -. Their Lordships of the Privy Council considered the following head note from their decision in Girdharee Lal vs. Kanta Lall (16) on which reliance was placed by the learned Judges of the Allahabad High Court: "where a father has sold ancestral property for the discharge of his debts, if the application of the bulk of the proceeds is accounted for the fact that a small part is not accounted for will not invalidate the sale. " They held that while this was in itself a correct statement of the law so far as it went, it did not by any means follow that it was a complete statement of the law or that the sale would be invalidated wherever the part of the consideration not accounted for could not be described as small. Their Lordships made it clear that the true question which falls to be answered in such cases is whether the sale itself was one which was justified by legal necessity. In a case of appropriation of the sale proceeds therefore, the sale will not be invalidated merely for the reason that the part of the consideration not accounted for could not be said to be a small part, the reason being that, by its Very nature, the lender could rarely look to application of the sale proceeds unless he entered on the management himself and this he could not be expected to do so. The case of Sri Krishan Das (5) and the other decisions rendered by their Lordships of the Privy Council on the question of appropriation of the sale proceeds relied upon by Mr. C. M. Lodha, to which reference has been made in an earlier part of the judgment, are therefore of no avail for the purpose of deciding this particular case since it has been held that the sale of the entire land was not justified by legal necessity. This disposes of all the arguments which have been made on behalf of the appellants and as they are without substance, the appeal is bound to fail. I may however refer to an argument of Mr. S. K. M. Lodha, learned counsel for the plaintiff-respondent, that the decree should be modified under O. 41, rule 33, Civil Procedure Code, by giving the plaintiff an option to pay off Rs. 2750/-to the appellants and obtain possession of the entire property. This has been done because the decree is for setting aside the sale for the balance of Rs. 2750/-and placing the plaintiff and his father Gangaram in joint possession of the land with the purchasers Bhuraram and Bheraram. It may be mentioned that the plaintiff felt satisfied with the trial court's decree referred to above and did not challenge it by means of an appeal or a cross-objection so that it has become final and binding as it is. I do not see any justification for accepting the prayer of Mr. Lodha because no reason has been shown for the plaintiff's failure to file an appeal or a cross-objection and, as is obvious, interference in his favour is not rendered necessary by any conclusion arrived at by me in deciding this appeal. The ends of justice are not likely to be defeated by the decree as it stands. The appeal fails and is dismissed with costs. . ;