1. This is an appeal in a suit in which the plaintiff Bhagwat Singh suing as a minor, through his next friend Ram Autar sought to recover possession of property sold by his father Gajadhar Singh on the ground that the property was the joint family property of the plaintiff and his father and that the sale was made without legal necessity. The sale was effected on 9th December 1914 fora sum of Rs. 2,499-11-3. The Court below has held that Rs. 1,780 of the sale price was for legal necessity or antecedent debt and has given the plaintiffs a decree subject to re-payment of this amount. There were a number of defendants to the suit, Gajadhar Singh himself, the original vendees, and subsequent transferees, but the only one with whom we are now concerned is the appellant Chandrika Singh. Chandrika Singh filed a pre-emption suit on the basis of the sale-deed executed by the plaintiff's father and obtained the property under a preemption decree dated the 7th August 1916.
2. The two points urged in this appeal have been:
1. That the burden of proving legal necessity was wrongly placed by the Court below on the defendant;
2. That even on the findings of the Court below the sale should have been maintained.
3. The question of - the burden proof was the main issue argued both the Courts below. The Trial Court placed the burden on the plaintiff under the impression that the ruling in Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom.L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 I.A. 1 26 (P.C.) required it to be so placed. The learned Additional Judge held that the Trial Judge had misunderstood the passages of the ruling on which he relied and that the real effect of the ruling was in such a case as the present clearly to place the burden of proof on the defends ant. In my opinion the learned Additional Judge was right. Where property has passed out of the hands of the family either in lieu of antecedent debt or under an execution sale in respect of a debt of the father the sons can only recover the property by showing that the debt was either illegal or immoral, but it is now so well-established as to need no citation of authority that this rule does not apply to a sale for cash. As regards the portion of the sale price which is now in dispute the sale was a sale for cash. The sum in regard to which the Court below finds that legal necessity was not established amounts to roughly Rs. 700 out of an item of Rs. 900 taken in cash at the time of registration of the deed. The ostensible object of the loan was to pay-the marriage expenses of certain members of the family. The finding of the lower Appellate Court is that there was legal necessity only for a sum of Rs. 200 and that the balance of Rs. 700 was taken without any necessity. There is now a long chain of authority for the view that when a transaction such as this is impeached by the sons it is for the creditor in the first instance to prove either legal necessity or at least such inquiry as would have satisfied a prudent man that the necessity existed. The appellant does not dispute this proposition where the defendant is the transferee. He urges that a different rule should be followed where the defendant is not the original transferee but a preemptor. The pre-emptor stands in the shoes of the original vendee. It is true that he is not himself a party to the transaction impeached, but I know of no authority, and none has been cited to me, for holding that this circumstance alone is sufficient to transfer the burden of proof from him to the, sons. I hold, therefore, that the burden of proof has been rightly laid by the Court below.
4. The second issue is whether on its findings the Court below was right in setting aside the sale. The' argument strenuously urged on behalf of the appellant is based on certain facts which appear in the judgment of the Court below though they are not referred to in connection with this particular issue, It appeal's that the whole family property consisting of an eight anna share had been usufructuarily mortgaged for 59 years at the time of the transaction. If this mortgage was not paid off within, a year the right of redemption would have been finally lost. The appellant's case is that in this state of affairs the father was justified in selling a portion of the property, he actually sold a five anna share out of eight annas in order to pay off this mortgage and recover possession of the entire property, and that even though the sale realised Rs. 700, more than were actually necessary it should be upheld. Two criteria have been laid down in different cases for determining whether in a particular case the sale should be upheld or not. In Jai Narain Pande v. Bhagwan Pande 80 Ind. Cas. 1006 : 44 A. 683 : 20 A.L.J. 621 : (1922) A.I.R. (A.) 321 relying on the Privy Council ruling in Girdharee Lall v. Kantoo Lall 1 I.A. 321 : 14 B.L.R. (P.C.) 187 : 22 W.R. 56 : 3 Sar. P.C.J. 380 (P.C.) it was said that what the Court should look at is the amount of the consideration in regard to which no Jegal necessity has been established. If this amount, was so trifling that it could be left out of account the sale should be upheld; otherwise it should be set aside. In one case of this Court, Balkrishna Das v. Hira Lal 50 Ind. Cas. 74 : 41 A. 338 : 17 A.L.J. 239, a somewhat different critenon was applied. This was a case in which a sale of a house for Rs, 19,500 was upheld although the antecedent debt existing at the time amounted to Rs. 7,775 only. The test here was could the sum for which legal necessity was established have been raised without effecting the sale which was impugned.' In the case in question it was held that it could not have been otherwise raised. The house sold could not have been divided up and sold piecemeal, and as there was no other source from which the money could be raised the sale of the entire house was upheld by this Court. If this test is applied to the. present case it fails to support the appellant's contention in its entirety. The zemindari share, unlike the house in the case just cited, might have been sold piecemeal, and it is clear that if a sale of 5 anna share realised Rs. 2,500 the amount of Rs. 1,780 which had, to be raised for legal necessity or antecedent debt might have been obtained by the sale of less than four annas. If there were any precedent for so doing I. might be, disposed to uphold the sale to such an extent as would, have been necessary to raise the amount of Rs. 1,780 but in the whole of the voluminous case law on this Subject I can find no precedent for such a course and I am reluctant to add -yet another to the complications of the existing law. The appellant has sought to support his plea on the ground- of benefit to the estate but this really carries him no further. The sale could only be beneficial to the estate to the extent to which it was necessary to raise the sum justified, by legal necessity.
5. There were the only two pleas urged in the argument in chief, but in replying on the case the appellant's learned Counsel made some reference to a plea taken in the fourth paragraph of his memorandum of appeal to the effect that it was only necessary for the transferee to show that he made reasonable enquiries I asked the learned Counsel if he could point me to any evidence not referred to by the Court below to show that such enquiries were in fact made, but he was unable to do so. Indeed neither in the Trial Court where the decision was in favour of the appellant nor in the Court below where it was against him, does any point seem to have been made of the question of enquiry.
6. It is no doubt true, as both the Courts below have remarked that then pre-emptor in a suit of this kind is in a difficult position. It is very doubt fulfil he could escape paying the full price for the property on the ground that any part of that price was not justified by legal necessity. On the other hand when he conies to defend a suit by the son, he is in a much less favourable position that the original transferee by reason of the fact that he was no party to the transaction impugned and only came into the case after it was completed. It may be that he has a remedy against the original vendee for the portion of the price which he is lost on the ground that it has not been for legal necessity. As to this I can express no opinion in the present case. As th(c) law stands the decree by the Court below was, in my opinion a correct decree and I, therefore, dismiss the appeal. Under all the circumstances of the case it appeals to me equitable to direct that the parties bear their own costs of this appeal and 1 direct accordingly.