Niamatullah, Ag. C.J.
1. This is a plain, tiff's second appeal and arises out of a suit for possession of the property specified ate the foot of the plaint by annulment of a sale deed executed on 8th June 1931, by his brother, Pitambar Singh and his first cousin, Maharaj Singh. The Court of first instance decreed the suit to the extent of the plaintiff's share and dismissed it as regards the share of his brother, Pitambar Singh. The plaintiff had not claimed any relief in respect of the share of his cousin, Maharaj Singh who was separate. On appeal by defendant 1, the lower Appellate Court dismissed the suit in its entirety holding that the consideration of the sale deed so far as it was in respect of the property belonging to the plaintiff and Pitambar Singh was such as justified the sale of the shares of both the brothers, The plaintiff has preferred the present appeal and challenges the correctness of the view taken by the lower Appellate Court. The following pedigree will ex. plain the position of the principal parties to this case:
LAIK SINGH|______________________|______________________| |Mukat Singh Gopal Singh| |_____________|_____________ || | |Ram Singh Pitambar Singh |(Plaintiff) (Defendant 4) |Maharaj Singh aliasBhaoo Singh, Deft. 5.
2. The family possessed a small zamindari share in village Malawan, mahal Mahtab Singh, pargana Sonhar, district Etah. It is common ground that half of it belonged to Maharaj Singh whose branch had separated from the plaintiff's branch some time before the execution of the sale deed in question. The other half belonged to Mukat Singh and his two sons. The sale deed dated 8th June 1931 related to the zamindari property referred to above. The consideration was Rs. 2500 which was made up mostly of sums due under earlier transactions of loan. It is not disputed that Rs. 1181-8-0 was due from Maharaj Singh whose half share was conveyed in lieu thereof by the sale deed in question. The remaining consideration which is impugned by the plaintiff is shown on the face of the sale deed as made up of several items due from Mukat Singh and his sons and forms the consideration of the other half. Those items are detailed below :(1) Rs. 674 due under a deed of simple mortgage for Rs. 600, dated 22nd May 1929, executed by Mukat Singh and Pitambar Singh in favour of defendants 2 and 3. (2) Rs. 224 due under a promissory note dated 18th May 1930, executed by Mukat Singh in favour of defendants 2 and 3. (3) Rs. 370 due under a promissory note dated 20th February 1931, executed by Pitam bar Singh, defendant 4, in favour of defendants 2 and 3. (4) Rs. 50 advanced in cash at the time of the sale deed for the expenses of registration, etc.
3. The total of these sums comes to Rs. 1318 which is more than half of Rs. 2500, the consideration of the sale deed dated 8th June 1931. It is admitted that Mukat Singh died some time between 18th May 1930, when the promissory note of that data was executed by him, and 8th June 1931, when the sale deed in question was executed by his son Pitambar Singh, defendant 4 and Maharaj Singh. After the execution of the sale deed already referred to, defendant 1 instituted a suit for preemption and has since become the owner of the property oonveyed by that sale deed. The lower Appellate Court has found that the sum of Rs. 674 due under the deed of simple mortgage represented a debt payable by Mukat Singh and was therefore binding on his sons. As regards the second item, it has found that it was borrowed by Mukat Singh for defraying the expenses of the plaintiff's marriage. The validity of this item has been admitted before us. The lower Appellate Court has also found that item third was binding on the plaintiff because it represents a debt which had been contracted by Pitambar Singh, defendant 4, for the par. chase of bullocks for the family and for the gauna ceremony of the plaintiff. The last item has been found to be valid because the rest of the consideration of the sale deed is valid. The learned advocate for the appellant has contested the findings of the lower Appellate Court on items (1) and (3) only. We proceed to consider his contentions in regard to them.
4. It is argued on the authority in Chiranji Lal v. Bankey Lal : AIR1933All273 that it is the privilege of the father alone to alienate family property for payment of his own antecedent debt and that so far as Pitambar Singh, defendant 4, purported to sell the property in dispute for payment of the debt due from his father, Mukat Singh, under the deed of simple mortgage dated 22nd May 1929, it cannot be considered to be valid in the absence of proof of legal necessity. It is said that there is no evidence to prove any legal necessity as regards the sum due under the deed of simple mortgage. That case is not an authority for the proposition that the transferee should prove legal necessity for the father to contract the debt. All that it decides is that mere antecedency of the debt does not entitle one of the sons to sell the family property. If the debt contracted by the father was not tainted with the immorality, and if it could not be paid without the sale of family property, a case of legal necessity for the son to transfer undoubtedly exists. There is nothing in that case to negative this view.
5. It seems to us to be undeniable in this case that Mukat Singh was liable to pay the principal and interest due under the deed of simple mortgage dated 22nd May 1929. The fact that his son Pitambar Singh, defendant 4 had also joined in the execution of that deed cannot diminish Mukat's liability for the entire debt. The mortgage being simple, it was open to the mortgagee, assuming that the mortgage was not valid, to obtain a personal decree against Mukat Singh for the principal and interest. It follows that after the death of Mukat Singh his two sons including the plaintiff were liable to pay what was due from their father under the mortgage deed of 22nd May 1929, to the extent of the family property in their hands. The learned advocate argued that in the absence of any pressure on the estate, Pitambar Singh defendant 4 was not entitled to transfer what belonged to him and his younger brother, the plaintiff, who was assumed to be minor on the date of sale though he was not. As we understand his contention, he argues that defendant 4 should have waited till the creditor obtained a decree and proceeded to sell the family property in satisfaction of the debt due from the plaintiff's father. We have not been referred to any authority in support of this view. In our opinion, since there was a debt which the sons of Mukat Singh 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 of so much of the property as was sufficient to satisfy the debt.
6. The lower Appellate Court has definitely found that the entire income of the zamindari belonging to this branch of the family was. Rs. 41.8.0 and that the tenancy lands held by the family yielded an income of Rs. 120 a year. Having regard to the liability of the family which included at least the first three items above mentioned, the debt due from the two brothers could not be paid except by sale of the family property. This is all the more clear from the fact that according to the finding of the lower Appellate Court, the recurring expenses of the family amounted to Rupees 360 a year. In these circumstances, we are clearly of opinion that though Pitambar Singh defendant 4 was not entitled to sell the family property merely because there was antecedent debt of his father, but having regard to the circumstances of the family the sale in question was warranted by legal necessity in so far as binding debts could not be paid otherwise than by sale of the family zamindari.
7. The third item of Rs. 370 is challenged by the learned advocate for the appellant on two grounds. First, it is said that the promissory note which evidences it was executed by Pitambar Singh, defendant 4, though Mukat Singh was alive. It is argued that though the sum might have been borrowed for family purposes, it was not the province of a junior member of a family to contract loans over the head of the karta, namely Mukat Singh. The finding of the lower Appellate Court that this sum had been borrowed for the purchase of bullocks for the family and for the plaintiff's gauna ceremony has note been challenged as indeed it could not be challenged in second appeal. We think that it is not always necessary that the eldest member of the family should be its karta. It is clear to us that when the promissory note dated 20th February 1931, was executed, Pitambar Singh, defendant 4, was at the head of the family affairs probably because Mukat Singh had been incapacitated by failing health. It is noteworthy that the latter died not long after, wards. The fact that the loan was contracted for family purposes itself shows that Pitambar Singh was acting for the family and that his father had ceased to function as karta. We think therefore that the contention of the learned advocate for the appellant on this part of the case has no force. Secondly, it is argued that the promissory note relating to this sum was insufficiently stamped and, therefore, inadmissible in evidence. It is contended that Pitambar Singh, defendant 4, should not have sold any part of the family property for payment of a debt which could not have been recovered by the creditor. In the first place we are unable to say that the creditor would not have been successful in recovering by suit the sum due under the promissory note dated 20th February 1931. It is obviously not possible for us to decide in this suit what would have been the fate of the creditor's suit based on that promissory note, or otherwise. In the second place we think that the karta of the family is entitled to sell the family property for debt really due from the family. It has been repeatedly held that a debt barred by limitation may validly form part of the consideration of sale of the family property. It is clear that at the time the sale deed was executed, Pitambar Singh, defendant 4, honestly believed that the sum of Rs. 370 evidenced by the promissory note was due from the family. He was not so well, versed in law as his learned advocate and did not repudiate the creditor's claim on such ground as is now urged on his behalf. Hindu law does not recognise technical pleas of this kind and in any case does not insist on evasion of payment of just debts. We think for these reasons that the validity of the third item of the consideration is not open to question on the grounds suggested on behalf of the appellant.
8. The result of our findings is that the sale of half of the property belonging to Mukat Singh's branch was justified by legal necessity and that the title of the contesting respondent 1 is not open to challenge. The appeal is dismissed with costs.