1. The plaintiff and defendant 4 are brothers. On 25-8-1928 they and their father Munidasaiah, now dead, borrowed Rs. 100 from one Siddalingappa and executed a registered hypothecation bond agreeing to pay interest at Rs. 1-4-0 per cent. per mensem and to repay the principal and interest within one year. As security for the debt they mortgaged five items of their joint family properties including the piece of land concerned in this suit. The recital in Ex. I that mortgage deed is that the amount; was borrowed for family maintenance. On 18-1-1941 Munidasaiah alone sold the suit item to defendants 1 to 3 in this suit for Rs. 200. The sale was effected by a sale deed Ex. II in order to pay off the debt borrowed under Ex. I. Defendant 4 attested that document in token of his consent. The plaintiff has brought the present suit for a declaration that the sale of the plaint schedule land by defendant 4 in favour of defendant l to 3 does not bind his half share and for partition and mesne profits. Defendants l to 3 pleaded that the sale was for legal necessity and for the benefit of the family estate as the plaintiff was also bound to discharge the earlier mortgage debt incurred by him and his father and defendant 4. The learned Munsiff held that though the plaintiff was bound to discharge the debt under the hypothecation deed, Ex. I, the sale was not shown to have been necessary as there was no proof of any pressure on the estate requiring such a sale. He found that the plaintiff could only claim a one-third share in the suit property and made a declaration in favour of the plaintiff, that the sale in favour of defendants 1 to 3 was not binding on the plaintiff and that he could recover his one-third share on payment into Court for payment to defendants 1 to 3 a sum of Rs. 53-12-0 and interest thereon from 16-1-1941 which represented one-third of the amount due under the hypothecation deed on the date of Ex. II. On appeal, the learned Additional Subordinate Judge reversed that decision. He held that legal necessity for the sale under Ex. II had been made out and that the act of the father in selling the property to defendants l to 3 to discharge the earlier hypothecation debt, which was binding on the family, was the act of a prudent manager. He found that the plaintiff was not in the village and his whereabouts were not known for 8 or 10 years before that sale and that the circumstance that his consent was not taken to the sale could not therefore affect it. He, therefore, dismissed the plaintiff's suit. The plaintiff has come up in second appeal.
2. It is not now disputed that the debt due under EX. I was for purposes binding on the family of the plaintiff and in any case it was fully binding on the plaintiff as he was a party to that deed. But as regards the sale under Ex. II, however, it has not been shown that it was necessary or even beneficial to the family. Mr. V.K. Govindarajulu, learned counsel for the respondents, defendants l to 3, has argued that the hypothecation debt was outstanding from 25 8-1928 upto 16-2 1941 without any substantial reduction and that Ex. I--a endorsement of 16-2 1941 on it showed that only a sum of Rs. 17 4-0 had been paid towards that debt upto that date. He urges that by the action of the father in selling this item of property, all the other items of property owned by the family were saved for the family. He also points out that defendant 4, who was the eldest son of Munidasaiah, would not have given his consent to the sale and, attested EX. II if the sale was not really necessary. These are no doubt relevant considerations bearing on the question but it must be remembered that the burden is upon the alienee in such cases to show that a particular alienation in his favour was for family necessity or benefit. In this case, defendant l has totally failed to discharge that burden. The creditor Siddalingappa has not been examined. His evidence would have been valuable to show whether he was pressing Munidasaiah and defendant 4 to pay off the mortgage debt and whether he was threatening to take legal proceedings if they failed to do so. Defendent has not also let in any evidence to show that the other resources of the family was not enough to discharge this debt and that a sale of one of the items was necessary. In the absence of any such evidence it must be held that the learned Munsiffs conclusion in this matter, viz. that there was no necessity for the sale under Ex. II, must be upheld.
3. Mr. Govindarajulu further contends that the sale by Munidasiah was effected by him as manager of the family and that this is clear by the fact that defendant 4 has not joined him in. executing the sale deed but has only attested it. He argues that the powers of a manager to alienate joint family property for purposes of legal necessity are far wider than that of the other members of the family, particularly junior members, and that an alienation by a manager will bind both the minor and adult members of the family provided it is shown that the same was for legal necessity or benefit. There are two decisions of this Court, one in 24 Mys. C. C. R. 376 and the other in 54 Mys, H. C. R. 371, which are against his latter contention. In 24 Mys. C. C. R. 376, it has been held that the question in the case of an alienation, which is sought to bind the adult members of a joint family, is not whether the sale of the same was for the benefit of the family but whether there was an express or implied consent of such adult member. In 51 Mys. H.C.R. 371 (F.B.), it has been held by a majority of the Full Bench that in a joint Hindu family consisting of adults and minors, governed by the Mitakshara law, express or implied consent of the adult members capable of giving consent, is necessary for an alienation of the joint family property by the manager of the joint family, even if it is for legal necessity or benefit, to make the alienation binding on such adult members, though such alienation, if for legal necessity or benefit, is valid as against the minor coparceners. 4. Mr. Govindarajulu, however, contends that there are some observations in the decision of the Pull Bench case which help him in this case to say that there has been an express or implied consent of the plaintiff for the sale. It has been observed in that case at page 421:
'This does not necessarily mean that the consent in the case of adult coparceners should always be express, The manager may find it necessary to alienate immovable property in the interest of the family or to avoid calamity when other coparceners are seriously ill or 'happen to be in a distant place. In such cases it may be possible to hold, taking all other circumstances into consideration, that the alienation for legal necessity is with the implied consent of the adult coparceners. It is true that as observed by Mitter J. in Miller v. Runga Nath Moulick, (1885) 12 Cal. 389, the consent of members of the family other than the manager must be taken as implied as they in entrusting the management of family affairs in the hands of the manager, must be presumed to have delegated to the said manager the power of pleading the family credit or estate, where it is impossible or extremely inconvenient for the purpose of efficient management of the estate to consult them, and obtain their consent before pledging such credit or estate ...,.'
5. Mr. Govindarajulu contends on the basis of these observations in the Full Bench case that in the present case the implied consent of the plaintiff for, the sale must be presumed. It is, however, seen that even in the written statement of defendants 1 to 3 no such implied consent has been pleaded, the defendants being content merely with saying that the plaintiff was aware that the sale was for the benefit of the family, that is to discharge the prior mortgage debt which he was bound to discharge. Defendant 4 has not also stated that there was any implied consent on the part of the plaintiff, much less express consent; and defendant 1 has expressly admitted that the plaintiff did not know about the sale at that time, but that he might have known it subsequently as he was at Bangalore at that time since about 10 or 12 years. This is not a case in which the plaintiff was in a far off place. The village of the parties is about 20 miles from Bangalore and it cannot be said that it was impossible to get into touch with the plaintiff and secure his consent. It is not also shown in this case that the plaintiff had left the management of the joint family properties entirely to his father and had left for a distant place to enable the Court to presume any implied consent on his part for the sale. Even defendant 1 was aware that the consent of an adult son was necessary as he has secured the attestation of defendant 4 to the sale deed. While defendant 1 and his witnesses have stated that the plaintiff was in Bangalore at the time of the sale, there is no evidence worth considering in this case that his whereabouts in Bangalore were unknown to his family and that it was impossible to secure his express consent to enable defendant 1 to rely upon any implied consent on his part. In these circumstances, it must be held that there was neither express nor implied consent for the sale under Ex. n. The judgment and decree of the learned Subordinate Judge cannot, therefore, be supported.
6. In the result this appeal is allowed, the judgment and decree of the learned Subordinate Judge are set aside and those of the learned Munsiff restored. It is seen thai the plaintiff claimed a half share in the suit land though he was really entitled to one-third and suppressed in the plaint the existence of the earlier hypothecation debt which was binding on him and which formed the consideration for the sale. Therefore the proper order to make as regards costs in this case is that the parties should bear their own costs throughout and it is ordered accordingly.