Mushtaq Ahmad, J.
1. This is a plaintiffs' appeal against a judgment of a learned Single Judge of this Court arising out of a suit for possession by cancellation of a sale-deed dated 21st December 1931, executed by the plaintiffs' brothers Bhup Singh and Tilok Singh, defendants 5 and 6 respectively.
2. The sale-deed was executed by those defendants in favour of one Jodhan Singh, father of defendants 1 and 2 and husband of defendants 8 and 4 for Rs. 2132-8-6. The items of the sale consideration were these:
1. Rs. 1600 0 0 left with the vendee for pay-ment to one Kharak Singh due to him on a usufructuary mortgage made by the vendors on 23rd April 1928.2. Rs. 583 9 6 left with the vendee for pay-ment to the same person Kharak Singh on account of another mortgage dated 10th February 1929, made by the vendors in his favour, and3. Rs. 248 15 0 left with the vendee to dis-charge a decretal debt due by the vendors.--------------------Rs. 2432 8 6 Total.
3. So far as items 2 and 3 are concerned, there are concurrent findings by the Courts below that only Rs. 90, out of the second item had been taken for legal necessity, there being no such necessity for the balance of that item or for any portion of the third item.
4. It is necessary to examine the petition with regard to the first item of Rs. 1600 which consisted of amounts due from the plaintiffs' father Narain Singh and represent his antecedent debts.
5. On 4th April 1905, Narain Singh had executed a simple mortgage for Rs. 500 in favour of one Tika Ram. On 17th March 1917 this mortgage was renewed by Narain Singh for Rs. 715. Again, on 26th July 1921, Narain executed a third mortgage for Rs. 200 and lastly on 7th December 1923, a fourth mortgage for a similar amount.
6. On 20th Match 1925, defendants 5 and 6, the elder brothers of the plaintiffs-appellants, executed a simple mortgage for Rs. 1250 to pay off the last three mortgages made by their father Narain Singh in favour of one Chhidda Singh and a man called Gajan Singh. This was followed by a usufructuary mortgage made by these defendants 5 and 6 on 23rd April 1928, in favour of Kharak Singh for Rs. 1600 leaving with the latter Rs. 1567 for payment to Chhidda Singh and Gajan Singh, the mortgagees under the last mentioned deed. It will thus appear that the first item of the sale consideration represented the antecedent debt of the father of the plaintiffs and their brothers defendants 5 and 6, who had executed the sale-deed in dispute.
7. One of the questions to be considered in this appeal is how far, if at all, this item of Rs. 1600 justified the alienation of the family property under that deed. We may take it that the total amount for which there was, in the absence of other circumstances, good ground for defendants 5 and 6 to alienate the property was Rs. 1690. Of course, we shall have further to see whether the circumstances existing on the date of the sale-deed were such that an alienation of the property was the only medium of relief or whether the situation could have been avoided otherwise than by such alienation.
8. The trial Court found that out of the sale consideration of Rs. 2432-8-6 there was legal necessity for Rs. 1690, the property itself being worth only Rs. 1500. It also found that no other means existed for the payment of this debt, as the family was not possessed of any other property. On these findings, it dismissed the suit. The lower appellate Court, however, took the view that there was no 'pressing' necessity to sell the property on account of the debt of Rs. 1600, as the property stood mortgaged for that amount and the mortgagee could not demand it from the debtors. Finding, further, that there was legal necessity for Rs. 90 also out of the second item of the sale consideration, the learned Civil Judge held that the plaintiffs were entitled to a decree for possession in respect of a half share in the property on payment of Rs. 845, that is, one half of Rs. 1690. In this, he evidently overlooked that either the sale-deed was invalid as a whole or no part of it could be challenged by the plaintiffs. The learned Judge, in our opinion, took a curious view in decreeing the suit for a half share in the property and dismissing it for the remaining half, as if the elder brothers, defendants 5 and 6 though not justified in alienating the plaintiffs' share, were still within their rights in transferring their own undivided share in the joint family property. For that view, there was no warrant in law, and we find it impossible to affirm it.
9. On appeal to this Court, the learned Single Judge modified the decree of the lower appellate Court and dismissed the entire suit, thereby restoring the decree of the Court of first instance. The learned Judge found that there was legal necessity for the payment of debts payable by the family, that the sons were under a pious obligation to pay their father's debts, that the older sons having acted bona fide, their action could not be challenged by the younger sons, that there was no legal authority for the view, as imagined by the lower appellate Court, that the necessity should be of a 'pressing' character, that the elder sons had received a good offer for property worth only Rs. 1500 and that the transaction could not be set aside only because a considerable part of the sale consideration had not been proved to have been applied for legal necessity.
10. Mr. C.S. Saran, learned Counsel for the plaintiffs-appellants, has contended before us that so far as the alienation of the family property for discharging the antecedent debts of the father was concerned, it could not be upheld because the transferor was not the father himself. He relied in support of that contention on the Full Bench case in Chiranji Lal v. Banhey Lal : AIR1933All273 , which had been referred to in the judgment of the lower appellate Court also. While this contention is true, it is also a fact that the alienation of the property for discharging such debt may itself be supported on the ground of legal necessity independently of the antecedent debts. In the present case, the Courts below found that there was legal necessity to the extent of Rs. 1690. Such necessity would be deemed to exist even though the sons could not be allowed to alienate the family property merely to discharge their father's debts. There can be no doubt that the sons were under a pious obligation to pay those debts. The debts were in that sense due from the family. If to clear off such debts the adult sons decided to alienate the family property or a part of it, it cannot be said that alienation was bad simply because the object was the repayment of the father's antecedent debts. The necessity, such as may justify the alienation, apart from the question of the object being the repayment of the antecedent debts, should be, in every case, of a character as would justify the transfer. Necessity per se is not the justifying element. It must be of a type which entails a certain degree of pressure on the estate to justify the alienation. As their Lordships of the Privy Council in Hunooman Persaud Pandey v. Mt. Babooee Munraj Koonweree 6 M.I.A. 393, held, that a manager could alienate the family property only 'in a case of need, or for the benefit of the estate.' They 'further observed:
The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, are the criteria to be regarded.
The expression 'benefit of the estate' was explained by their Lordships in the case of Palaniappa Chetty v. Deivasikamony Pandara Sannadhi A.I.R. (4) 1917 P.C. 33, in the following words:
The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.
These words had tended to encourage a view, so far as this Court was concerned, that in each case the action of the manager in alienating the family property must be of a defensive nature; that is to say, if the underlying object was to avert some danger or to obtain relief from some distress, there would be justification for the transfer, but not where it was only, for instance, to add to the family property or to achieve some such other object. This view, however, was not accepted by this Court in the Full Bench of Jagat Narain v. Mathura Das : AIR1928All454 ., in which it was laid down that the transaction, being of a defensive nature, was not an essential element of justification but that
the real test was whether the transaction would have been carried out by a prudent owner with the knowledge then available to him.
11. In each case, therefore, it would be a question of fact whether such circumstances exist as would induce a prudent owner or manager of a joint Hindu family property to alienate the same, either for the repayment of the debts of the family or for such other objects that could be regarded as coming within the dictum laid down in the case just quoted, that itself being only an explanation of the rule laid down by their Lordships of the Privy Council. There can be no doubt that in every case, there must be, what is known 'necessity,' as their Lordships in one case remarked that 'the touch-stone of the authority is necessity.' But the word 'necessity' has a somewhat special meaning in the case of a transfer of a joint Hindu family property. It implies the kind of pressure which the law recognises as serious and sufficient.
12. This being the test, the question is whether it is satisfied according to the findings of the Courts below. It is true that the trial Court had found that there were no other means for the family to pay off the debts except by sale of the property in dispute, it being admitted that the plaintiffs had got no other property. This finding was not examined by the lower appellate Court. If it was a matter on which the lower appellate Court also had recorded a finding, we might have been in a position to consider how far the necessary test, as mentioned by us, had been satisfied in this case. It cannot be doubted that the mere fact that the entire sale Consideration was justified by necessity would not, by itself, be a ground for upholding the alienation, nor would the mere fact that a portion of the sale consideration only was justified by necessity would be a ground for discrediting the same. The test, as we have already pointed out, would, in every case, be the presence of such circumstances as could make the act of transfer an eminently desirable or urgently called for step to case the situation existing on the date of the transfer. In the present circumstances when there Is no independent finding by the lower appellate Court on this material question, we cannot finally dispose of this case.
13. We, therefore, remit the following issue to that Court for a finding to be returned within three months of this date, the usual ten days time being given for objections to the same. No further evidence would be permitted.
Whether in these circumstances existing on the date of the sale deed dated 21st December 1931, the said deed was binding on the rest of the family and was not liable to be challenged by the plaintiffs?