1. This is a defendants' appeal from a decree for possession of S.No. 705, subdivision 1-A, having an area of 4 acres and 14 gunthas situate at Shirajgaon Kasba, tahsil Ellichpur, district Amravati.
2. The relevant facts are briefly these: Sub-division 1-A of S.No. 705 having an area, 16 awes and 6 gunthas belonged to the plaintiff Ganpat. During his minority his mother acting as natural guardian sold 4 acres of land to the north to Bhiwaji, the father of the defendants, for a consideration of Rs. 900. It will thus be seen that there is a discrepancy in the area of the land shown in the sale deed as having been sold and that which is claimed in the plaint. However, since the defendants do not dispute the position in the Courts below that the area of the land conveyed to them under the sale deed was 4 acres and 14 gunthas as alleged in the plaint, I proceed on the footing that the land actually sold was 4 acres and 14 gunthas.
3. According to the plaintiff, the sale was not justified by legal necessity. The defendants contend that they had taken a havala of the debts owed by the plaintiff's father to two of his creditors to the extent of Rs. 850/-, and that the sale was for the payment of antecedent debts due by the plaintiff's father and was binding on the plaintiff. It is also contended that the plaintiff's mother who was the manager of the joint family consisting of herself and her son, the plaintiff, was competent to sell the field, that she sold it for a good price and that the minor is benefited by thattransaction inasmuch as the rest of his property as well as Court expenses for the suits which may have had to be filed by the creditors were saved. Thus, according to them the transaction was for legal necessity and beneficial to the minor.
4. The trial Court held that the sale was effected for paying antecedent debts incurred by the plaintiff's father but that it was not justified by legal necessity. It accordingly ordered that the plaintiff shall be placed in possession of the property on condition that he refunded to the defendants Rs. 900. The defendants who appealed to the lower appellate Court contended that the Court below ought not to have made a decree of this kind. The plaintiff preferred a cross-objection in which he prayed that the amount which was required to be paid to the defendants should be reduced to Rs. 500/- only. The lower appellate Court dismissed the appeal of the defendants but allowed the cross-objection substantially by reducing the amount from Rs. 900 to Rs. 550.
5. It is contended before me that the Courts below were in error in setting aside the alienation inasmuch as it was effected for satisfying the antecedent debts of the plaintiff's father which the plaintiff was bound to pay under the rule of pious obligation. In this connection, it is sufficient to refer to two decisions of the Nagpur High Court and one decision of the Bombay High Court which are directly on the point. In Dharmarajsingh v. Chandrasekhar Rao , the majority view was that a non-father manager of a Hindu joint family could alienate the minor son's share to satisfy an antecedent debt of the son's father, binding on the son only if it is established by the transferee that in the circumstances in which the family was placed there was no other reasonable course open to the guardian. In this case a distinction is clearly drawn between an alienation made by the father for payment of antecedent debt and an alienation made by a guardian of a minor.
6. In Tulsiram v. Narayan ILR 1950 Nag 795: AIR 1050 Nag 69, which was also a case of alienation by the mother of a Hindu minor for paying the debts binding upon the minor, I held that the question whether the sale is justified or not depends upon whether the danger to be averted or the pressure of circumstances was such as to leave no other alternative but to effect a sale.
7. In Pandharinath v. Ramchandra : AIR1931Bom157 , it was held that where a guardian of the property of a minor sells the property, the material question that has to be considered in such cases is whether the sale itself was justified by legal necessity, so that it can bind the minor. No decision to the contrary has been brought to my notice.
8. The learned counsel for the defendants relied upon two decisions : Sardar Singh v. Kunj Bihari Lal ILR 44 All 503: AIR 1922 PC 261; Ashutosh Sikdar v. Chidam Mondal : AIR1930Cal351 .
Neither of the cases is in point. In the first mentioned case their Lordships of the Privy Council upheld the alienation of a small portion of her husband's property by a widow which was for the continuous spiritual benefit of the deceased husband, even though it was found that she had sufficient income to provide for these observances without any alienation of the estate. In the other case it was held that the widow being under a pious duty to pay her husband's debt, though barred, it is not necessary that there should be any danger to the estate in order to entitle her to alienate the property of her husband in order to pay eff such debts. It will thus be seen that the question as to the right of the guardian mother to bind her minor son by a transaction entered into by her did not at all arise for decision in either of these cases. They merely dealt with the power of a widow who as in possession of her husband's estate as his heir to make alienations for certain purposes.
9. In the instant case, no pleading has been made as to the circumstances of the family and all that has been said is that the minor is benefited by the transaction. That is not the way in which the matter has been looked at in the three cases cited above. The transferee has to show positively that the course which the natural guardian took was the only one open to her in the circumstances of the family. If he failed to do so then the transaction cannot be upheld.
10. In this view, agreeing with the Courts below, I hold that the plaintiff is entitled to claim possession of the property. I agree also with the Courts below that the decree should be made conditional. The question however is that the lower appellate Court erred in reducing the amount to Rs. 550/-. This the learned Judge has done because he found that though the plaintiff's father is said to have owed debts to two persons the debt of only one of them was established. This finding of the learned Judge which is based upon a consideration of the evidence in the case and is one of fact and as such is binding in second appeal.
11. In this view, I uphold the decree of the lower appellate Court and dismiss the appeal with costs.
12. Appeal Dismissed