1. This is an appeal by Mt. painda Kuer and arises out of a suit for the cancellation of a certain sale deed. The plaintiff in the litigation was Sardu Ram and the principal defendant was Mt. Gainda Kuer. There were two other defendants, Tarif Singh and Udho Ram, but they were more or less pro forma. It appears that there was a man by the name of Jugal Kishore. He had three sons, Tariff Singh, Udho Ram and Sardu Ram, in strict order of seniority. On 13th June 1927 a sale deed was executed by Tarif Singh and Udho Ram in favour of Mt. Gainda Kuer of certain house property. Tarif Singh in the sale deed purported to act on his own behalf and as the guardian of his minor brother Sardu Ram. He also called himself the karta of the family. The sale consideration was Rs. 15,800. The plaintiff Sardu Bam, within three years of his attaining majority, brought the present suit against Gainda Kuer for the cancellation of the sale deed executed by his elder brothers Tarif Singh and Udho Ram and alleged that the sale was not justified by legal necessity and therefore the plaintiff' was entitled to recover back his share in the property sold. By reason of certain admissions made by the parties and by reason of certain amendments made in the plaint about which there is no controversy before us, the plaintiff's share in the property detailed at the foot of the amended plaint came to one-sixth. The trial Court went into the question of the existence and the legal necessity of the various items of the sale consideration and came to the conclusion that Rs. 1500 alone was supported by legal necessity. The defendant Gainda Kuer after obtaining the sale deed made certain improvements in the house and those improvements were assessed by the trial Court at Rs. 4200. The stamp of a mortgage deed in lieu of which principally the sale deed was executed was for Rs. 185. The position, therefore, was that the plaintiff before he could recover his share of the property sold had to pay his proportionate liability in the improvements (Rs. 4200) and in the item of sale consideration which was found to be for legal necessity (Rs. 1500) and a proportionate share of the expenses of the mortgage deed (Rs. 185). The plaintiff has to pay a sixth of all these items which comes to Rs. 955. The trial Court, therefore, on 22nd April 1937 passed the following decree:
That the plaintiff's suit for possession over the property detailed at the foot of the plaint as amended, is decreed subject to the plaintiff's paying to defendant 1 or depositing in Court in the name of defendant 1 Rs. 955 up to 31st July 1937.
2. It also passed an appropriate order regarding costs. On appeal to the lower appellate Court the learned civil Judge confirmed the decree of the trial Court and dismissed the appeal filed by the defendant. He further directed that the plaintiff respondent should pay the sum of Rs. 955 till 8th May 1938. The defendant Mt. Gainda Kuer has come to this Court in second appeal, and Mr. Pathak has argued the case on behalf of the appellant with great ability. We have made it clear that Jugal Kishore was the father of the plaintiff Sardu Ram and of the two pro forma defendants Tarif Singh and Udho Ram and that the sale was made by these two persons on 18th June 1927. The sale consideration of Rs. 15,800 is made up of the following items:
(i) Paid in casn ac cne lime oi regi-stration ... Rs. 3550 (ii) Earnest money ... Rs. 250 (iii) Left with the vendee for payment to Shambhu Das and Tulsi Ram in satisfaction of their mortgage deed, dated 8th December 1922. Rs. 12,000_________________________Total Rs. 15,800
3. The lower appellate Court in agreement with the trial Court has come to the conclusion that legal necessity has not been proved in respect of item 1 of the sale consideration, namely Rs. 3550. It has also held that Rs. 250 said to be paid as earnest money was not paid in order to meet the expenses of execution and registration of the sale deed and therefore that item was also not supported by legal necessity. It then proceeded to discuss the last item of the sale consideration, namely Rs. 12,000. This sum was due on the basis of a mortgage deed of Rupees 10,000 executed on 8th December 1922 by Jugal Kishore and Tarif Singh. The mortgage in its inception was a usufructuary mortgage, but it is clear that the mortgagees did not enter into possession of the mortgaged property because in the course of five years when the sale deed was executed interest was calculated upon it and the mortgage money swelled to Rupees. 12,000. We may therefore take it that the mortgage of 8th December 1922 was for all practical purposes a simple mortgage carrying interest. The mortgage consideration is made up of the following items:
(i) Cash at the time of registration ... Rs. 200(ii) Left with the mortgagees for payment to Bahu Mai and Asa Ram. Rs. 800(iii) Left with the mortgagees for payment to Gopi Chand ... Rs. 1415(iv) Left with the mortgagees for payment to Shambhu Nath (one of the mortgagees) ... Rs. 1500(v) Left with the mortgagees for payment to Tulshi Ram (one of the mortgagees) ... Rs. 3200(vi) Left with the mortgagees for payment to Tulshi Ram (one of the mortgagees) ... Rs. 2700(vii) Received prior to registration ... Rs. 185_______________________Total Rs. 10,000.
4. When we said au an earner scage tnac Rs. 1500 was found to be for legal necessity we were really referring to an item in the mortgage consideration and we again were referring to an item of the mortgage consideration when we referred to Rs. 185. The trial Court was of the view that Rs. 200 taken in cash at the time of registration had not been proved to be for legal necessity and the lower appellate Court also came to the same conclusion. As regards the next item of Rs. 800, the trial Court was of the definite view that no legal necessity existed for this item and in passing it observed that Jugul Kishore's daughter was married to Asa Ram who and Bhaomal were own brothers and therefore it was absurd to suppose that a father-in-law would borrow from his own son-in-law. There is therefore some leaning of the trial Court to the view that the debt did not exist at all. The lower appellate Court did not express any opinion on the question of the existence of this debt but said that there was a complete absence of evidence of legal necessity in respect of this item of Rs. 800 which was said to have been borrowed to pay off some oral debts. As regards Rs. 1415, the trial Court observed that the promissory note in favour of Gopi Chand was not produced and there was no evidence at all regarding legal necessity of this promissory note. It also said that even the existence of this debt was not proved as defendant 1's karinda's statement on this point was not sufficient at all.
5. The lower appellate Court did not say anything about the evidence given by the karinda of Gainda Kuer but simply upheld the finding of the trial Court that legal necessity in respect of this item of Rs. 1415 was not proved. The next item of Rs. 1500 was held to be for legal necessity by both the Courts. As regards the sums of Rs. 3200 and Rs. 2700 left with the mortgagees for payment to Tulshi Ram, the Courts below were of the opinion that no legal necessity had been established because if the money was said to be employed for purposes of the shop of Jugal Kishore and Tarif Singh, then the evidence was not credible inasmuch as the shop was always yielding a profit but as Jugal Kishore and Tarif Singh engaged themselves sometimes in wagering and speculative transactions the money was probably needed for those purposes and therefore it could not be said that these sums had been utilised for legal necessity. The last item of Rs. 185 was received prior to registration and was utilised for the purposes of stamp and registration.
6. With the exception of Rs. 200 taken in cash at the time of registration and Rs. 185 received prior to registration for purposes of stamp, etc., the remaining items were all antecedent debts, in the sense that they were left with the mortgagees for payment either to certain prior creditors or of certain prior debts of the mortgagees themselves. It was contended strenuously on behalf of the appellant that the entire mortgage consideration therefore constituted an antecedent debt and Jugul Kishore (father of Tarif Singh, Udho Ram and Sardu Ram) was perfectly entitled to mortgage the family property in order to clear off his antecedent debts. This proposition of law is well supported by authority and it is clear that the father can mortgage or sell the family property in order to pay off his antecedent debts. The mortgage of 1922 was therefore a valid item in the sale consideration of 13th June 1927. This sale, however, was not by the father but by the manager of the joint Hindu family consisting of himself and his two brothers Udho Ram and Sardu Ram. Anybody who takes a document of sale from a manager is not in the same happy position as a person who takes the sale deed from the father in lieu of antecedent debt of the father where the family consists of the father and his sons or grandsons. Mr. Awasthi on behalf of the plaintiff-respondent has argued that the mere fact that the sale was executed by the brothers and not by the father renders the sale deed subject to the infirmity that the vendee has got to establish legal necessity for every item of the sale consideration. The proposition just contended for on behalf of the respondent is valid as far as it goes but it omits to notice that the mortgage deed was a valid mortgage deed which the father could execute inasmuch as it was for antecedent debts. In the. well known case in Brij Narain Rai v. Mangla Prasad ('24) 11 A.I.R. 1924 P.C. 50 certain propositions were laid down and two of them are as follows:
(1) If he is the father and the reversioners are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (2) If he (the father who is alienating the property) purports to burden the estate by mortgage, then unless that mortgage is to discharge an. antecedent debt, it would not bind the estate.
7. The position, therefore, is that the mortgage of 8th December 1922, as it was executed by Jugul Kishore when the family consisted of himself and his sons, was a valid mort gage binding on the estate because it was executed in order to pay off antecedent debts of his own, and it is not necessary to consider the items of the mortgage consideration with meticulous care and find out if they are supported by legal necessity because that doctrine does not apply and is subordinated be the other doctrine of Hindu law, namely that the father is entitled to mortgage or sell the family property for the payment of his antecedent debts when the other members of the family are his sons only. At the same time it is clear that if the antecedent debts are tainted with immorality or if the debts have no existence whatsoever the father would be committing a fraud on the family and the sons would be entitled to (question that alienation. We now propose to scrutinize the items of the mortgage consideration in the light of the above observations. As we said before, Rs. 200 was cash taken at the time of registration by the father himself. This does not constitute an antecedent debt and the Courts below have held that this was not supported by legal necessity either. As regards the next sum of Rs. 800 the trial Court had some doubts regarding the existence of the debt itself but gave a definite finding that it was not executed for legal necessity. The lower appellate Court said nothing about the existence. of the debt but contented itself with observing that the debt was not supported by legal necessity.
8. We hold the view that legal necessity for this item had not to be established by Gainda Kuer in the present case (when we are saying this we wish to point out that this should not be accepted literally but subject to what we shall have to say later on). The lower appellate Court has not said whether this debt existed or not and as we are remitting certain issues to the lower appellate Court we shall have to remit one issue in connexion with this item. As to item 3 of Rs. 1415, the trial Court again was in doubt as to its existence but supported its judgment by finding that it was not for legal necessity. The lower appellate Court has only looked at the legal necessity aspect of this item and has held that it is not supported by legal necessity; It has not found whether this debt existed in fact or not and we shall have to remit an issue in connexion with this item as well. Rupees 1500, as we have observed several times, was taken for legal necessity, and although it was not necessary to establish legal necessity we accept the finding of the Courts below on this point, that is to say, this item is valid Rs. 3200 and Rs. 2700 are antecedent debts and the sons could have got rid of the mortgage of 8th December 1922 so far as these two items were concerned only on connecting them with some kind of immorality.
9. Assuming even that satta transactions are immoral and debts incurred in that connexion by the father would not be binding on the sons, there is no evidence in the present case to connect these debts with any particular satta transaction and general evidence to the effect that the father was in the habit of indulging in satta transaction is not enough, and it is not necessary to remit any issue in connexion with these two items. They must be considered valid. The last item of Rs. 185 was received prior to registration and was in connexion with the expenses of stamp, etc. We have thus discussed all the items of the mortgage deed and we think that in the view which we take of the case it is not necessary to remit any issue regarding the sums of Rs. 3200 and Rs. 2700. In our judgment, if the items constituting the mortgage debt have an existence in fact, then the father Jugul Kishore was entitled to execute the mortgage and to bind the estate by the mortgage. If, however, any of the items of the mortgage debt have no existence in fact or are in any way tainted with immorality different considerations would follow and equities might have to be adjusted. The validity of the mortgage deed as a whole will be considered when we have received findings on the issues that we shall remit.
10. This leads us to a consideration of the validity of the sale deed itself which, as we said before, is dated 13th June 1927. It was executed in lieu of certain considerations which we have held to be not for legal necessity; it was executed in lieu of the mortgage deed of 1922 which to a great extent, according to our findings, was a valid transaction and which might or might not turn out valid to the remaining extent. That dependsupon the findings that we shall receive. The manager of the family, therefore, thought fit on 13th June 1927 along with his adult brother to execute the sale deed. We do not agree with the broad contention taken on behalf of the respondent that Tarif Singh was not entitled to execute the sale deed at all, and that the only person who could have executed the sale deed was the father Jugul Kishore, nor do we think is that contention supported by the Full Bench case in Chiranji Lal v. Bankey Lal : AIR1933All273 . In that case it was not argued on behalf of the transferee that the alienation made by the manager (who was not the father) was on the whole supported by legal necessity. As has been observed by Mulla in his Hindu Law, Edn. 9, at page 279:
Cases frequently arise in which joint family property is sold by the manager of the family for legal necessity, but the whole of the price is not proved to have been applied to purposes of necessity, and the sale is challenged on that ground by the other members of the family. In such cases, if the sale itself is justified by legal necessity, and the purchaser pays a fair price for the property sold, and acts in good faith and after due enquiry as to the necessity for the sale, the mere fact that part of the price is not proved to have been applied to purposes of necessity would not invalidate the sale, the purchaser not being bound to see to the application of the price.
11. In cases like these the real question to be considered is whether the sale itself was justified by necessity. We might expand this proposition a little more and point out that what Courts under these circumstances ought to consider is to see that with the existence of certain pressure what action a prudent manager ought to take. If that pressure can be averted by other methods, those other methods ought to be availed of, but if the pressure cannot be averted except by sale of the property the manager would be entitled to sell the property and Courts should not look with meticulous care whether the bulk of the consideration was utilised for legal necessity and whether if some portion of the consideration is found to be not applied for legal necessity certain conditions ought to be imposed, but the Courts should take a broad view of the situation and find out whether under that situation the sale of the family property was the proper procedure and if it comes to the conclusion that the sale was a proper course then if a portion of the sale consideration has not been applied for legal necessity, the sale will be upheld unconditionally. The reason for this is that there would be a presumption that the balance of the sale consideration was applied for proper purposes and the transferee would be entitled to take advantage of this presumption. In Ram Singh v. Sri Charan : AIR1938All147 a Bench of this Court took the view that
since there was a debt which the sons were bound to pay and which could not be paid otherwise than by sale of the family property, there was a case of legal necessity which justified the sale by Pitambar (manager) of so much of the property as was sufficient to satisfy the debt.
12. This, we think, lays down the correct law and does not in any way militate against the view taken by this Court in Chiranji Lal v. Bankey Lal : AIR1933All273 . As we are remitting an issue on this general aspect of the case, the lower appellate Court will be well advised to study the cases which have been referred to by Mulla. in his Hindu Law, End. 9, at pp. 196 and 279. For the reasons given above we remit the following issues to the lower appellate Court. The parties will be at liberty to adduce additional evidence relevant to those issues-except where we say that the evidence: already on the record will be sufficient. Evidence might be recorded either by ther lower appellate Court or by the trial Court, but the findings must be the findings of the lower appellate Court. Three months are allowed for the return of findings and on return of findings the usual ten days will be allowed for objections. The issues that we remit are : 1. Were there some oral debts-payable to Bahu Mai and Asa Ram at the time of the mortgage of 8th December 1922: for which Rs. 800 were left with the mortgagees for payment to Bahu Mai and AsaRam? 2. Was there a debt due by Jugul Kishore and Tarif Singh to Gopi Chand amounting to Rs. 1415 when the mortgage of 8th December 1922 was executed? These two issues will be decided on the evidence on the record and no additional evidence will be given in connexion with these two issues. 3. Regard being had to all the circumstances of the case was the sale itself of 13th June 1927 justified by legal necessity? On this last issue additional evidence can of course be given.