1. This was a suit by which a minor plaintiff sought to set aside certain alienations of the family property made by his father and grandfather. The grandfather was dead before the suit was instituted; the father was impleaded as defendant of the second party. There is a finding of the Court below that the suit was a collusive one as between the plaintiff and his father and was brought as much in the interests of the latter as in those of the plaintiff himself. The alienations were for a total sum of Rs. 2,900. Very nearly half of this was required to pay off antecedent debts binding on the family, and in particular on the present plaintiff. It is not denied that to this extent, at any rate, the alienations were for legal necessity. There were, however, cash payments on account of each cf the three sale-deeds, the total thus advanced in cash amounting to Rs. 1,493-0-6. With regard to these advances the case for the defendants 1st party, who are now in possession of the property, is that the money was needed for certain neeessary family expenses and more particularly for the building of a new residential house which was in fact constructed out of the money thus raised. There was conflicting evidence on this point, the plaintiff going so far as to assert that no new house had been built by his father or by his grandfather. The learned Subordinate Judge has found against the plaintiff on this point and we have not been asked to re-consider his finding. We take it to be established by the evidence that at the time of these sales there was a real necessity on the plaintiff's father and grandfather impelling them to the acquisition of a new residential house. There had been a partition in the family; the old family house was out of repair, and it has indeed been found that most of it has since fallen down. The plaintiff's father and grandfather were justified, as managers of the property, in seeking out a new residence for themselves and for the minor son or sons of the defendant second party. So far we are fully prepared to accept the finding arrived at by the Court below. From this point the learned Subordinate Judge seems to have felt himself obliged to deal with the question in somewhat rough and ready fashion. He has come to the conclusion, though on what materials is not very clear, that the new house built by means of the money acquired under these alienations was out of reasouable proportion to the means of the family. In effect ha has said that a suitable house could have been built for somewhere about one-third of the money. On this basis he has arrived at the conclusion that, out of the cash consideration of Rs. 1,493-0-6, a sum of Rs. 1,000 should be regarded as not covered by the principle of family necessity. He has accordingly given a decree in favour of the plaintiff for recovery of possession, subject to payment of the remainder of the consideration, i.e., of Rs. 1,900 in all. The defendants of the 1st party have appealed to this Court.
2. One of their pleas raises a question as to the age of the minor plaintiff which was decided against them in the Court below, and this plea has not been pressed. The appellants have in substances asked us to deal with the matter on the basis of the finding arrived at by the Court below, re-considering only the opinion formed by the learned Subordinate Judge as to the necessity for the expenditure of Rs. 1,500 or more on the construction of a new house. In paragraph 6 of the plaint it is alleged that the entire family property was covered by the?e three alienations, with the result that ''there was no means of livelihood left to the family.' This is a somewhat extraordinary assertion. It must be remembered that the finding of the Court below is that the new residential house actually cost Rs. 1,500 or Rs. 1,700 and was in fact built by the plaintiff's father and grandfather. It is scarcely to be presumed that these gentlemen expended their entire financial resources in the construction of a palatial residence in which they were to starve for want of means of livelihood. Moreover, these alienations took place in the years 1899 and 1901 and presumably the plaintiff and his father have been able to find some means of livelihood during these intervening years. What we have felt in dealing with this appeal is that there does not appear to be any substantial basis in the evidence for the opinion of the learned Subordinate Judge to the effect that the new residential house constructed by the plaintiff's father and grandfather was out of all proportion to the family means. After all, a certain discretion must be allowed to the manager of a Hindu joint family. He is expected to deal with the family property as a reasonable person would deal with his own. The appellants, at the time when the alienations in their favour were made, had satisfied themselves that there was in fact legal necessity for the alienations, i. e., there were antecedent debts to be paid off and the maintenance of the family did require a new residential house. It seems to us that on the evidence the defendants-appellants have fairly discharged the burden which lay upon them and that the finding of the Court below with regard to want of legal necessity for this particular sum of Rs. 1,000 is a conjectural one and not grounded upon the evidence led in the case.
3. We accordingly allow the appeal and setting aside the decree of the Court below, dismiss the plaintiff's suit with costs throughout. Costs in this Court will include fees on the higher scale.