1. The defendant No. 2 and upon his death, his legal representatives and defendant No. 21 are in appeal against the judgment and decree passed by the learned Subordinate Judge, Balasore, holding that the sales effected by the defendant No. 22 (respondent No. 23) in their favour were not binding on the plaintiffs Nos. l and 2, the sons of the defendant No. 22, who are the respondents Nos. l and 2 in this appeal.
2. The respondents Nos, 1 and 2 and the wife of the respondent No, 23 Trai-lokyanath Behera (defendant No. 22) had instituted the suit for a declaration that the transfers made by the respondent No. 23 in respect of the ancestral properties described in schedule 'Ka' of the plaint including the sales on 25-11-1957 in favour of the appellant No. 1 (defendant No. 2) under Ext. A for Rupees 100/- and in favour of the appellant No. 2 (defendant No. 21) on 16-10-1963 under Ext. D for Rs. 2,500/-, were not binding on them on the ground that the respondent No. 23, who had taken to squandering of money in horse race in Calcutta and in gambling, had executed the sale deeds which were not for any legal necessity nor for the benefit of the estate. The defendants Nos. 9 to 12 and 14 to 18 were minors and were represented by pleader guardian, The original defendant No. 16 died during the pendency of the suit and was substituted by her legal representatives (defendants Nos. 16, 16 (ka) and 16 (kha)) The minor defendants through their pleader guardian, the defendants Nos. 16, 16(ka) and 16(kha) and the present appellants contested the suit. The other defendants including the defendant No. 22 (respondent No. 23) had been set ex parte. The appellants had resisted the suit by asserting that the income was inadequate for maintenance and meeting pressing expenses of the family and the respondent No. 23 had, therefore, sold the properties to meet the marriage expenses of his daughters, for repair of the house and for other household expenses. The sales, according to them, were all for legal necessity and for the benefit of the estate and they had purchased the lands after due enquiry about the existence of legal necessity. They had asserted that the respondent No. 23 had not taken to gambling nor had he been spending money in horse race or for other illegal purposes.
3. The learned Subordinate Judge framed six issues. No specific issue as to existence of legal necessity was framed, but both the contesting parties led evidence, oral and documentary, in their regard and were well aware of the relevancy of the question. The learned Subordinate Judge, after an elaborate consideration of the evidence with regard to issue No. 5 as to whether the plaintiffs had any right, title and interest in the suit lands and as to whether they could challenge the validity of the alienations made by the respondent No, 23, came to find that the properties sold by the respondent No. 23 were the ancestral properties of the family and the evidence did not warrant a conclusion that the respondent No. 23 was a gambler or that he had been spending money in horse race. It was, however, found that besides lands, the respondents 1 and 2 and their father had income from trees and betel leaf garden and it was not possible to categorically say that they were always in want or were under financial stress. The learned Subordinate Judge, therefore, concluded that the sales in favour of the appellants had not been for legal necessity nor for the benefit of the estate. Accordingly, the suit was decreed.
4. Mr. Patra has submitted that the oral and documentary evidence would lead one to a reasonable conclusion that the sales as per Exts. A and D were for legal necessity as also for the benefit of the estate and were, therefore, binding on the plaintiffs. Mr. Mukherjee on the other hand submitted that on the evidence on record, the findings of the learned Subordinate Judge could not be assailed.
5. As to the proof of legal necessity and the nature of evidence to be adduced in proof thereof, we would quote some observations made by the Supreme Court in the case of Smt. Rani v. Smt, Santa Bala Debnath reported in AIR 1971 SC 1028. Their Lordships observed (at p. 1031) :--
'Legal necessity to support the sale must, however, be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.
Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.'
Referring to and relying on the aforesaid principles laid down by the Supreme Court, this Court in the case of Dhana Das v. Pandav Das reported in AIR 1974 Orissa 218 held (at p. 219) :
'Even where the manager of a joint Hindu family alienates joint family property, the alienee is bound to inquire into the necessity for the alienation, and the burden lies on the alienee to prove either that there was legal necessity in fact, or that he made proper and bona fide enquiries as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.'
The same principles have been enunciated in the case of Karunakar Panda v. Durgabati Bewa reported in AIR 1981 Orissa 23.
6. Judged in the light of the aforesaid principles, we find, for the reasons to follow, that the evidence relied on by the appellants as to the existence of legal necessity justifying the two sales in question was far short of the mark.
7. As has rightly been held by the learned Subordinate Judge, on the basis of the evidence adduced from both the sides, there was paucity of evidence to support the stand that for meeting household necessities of the family an-cestr . properties had to be sold. The evidence of the respondent No. 2 as PW 1 in this regard and in particular with regard to the income of the family from mango, coconut and bamboo clumps, besides the betel leaf garden gets some support from the evidence of DW 1, who has stated in his cross-examination that the respondent No. 23 owned and possessed a betel leaf garden 15 to 16 years back and its extent was 7 to 8 decimals. It would also appear from his evidence that the respondent No. 23 had 7 to 8 cocoanut trees and had also mango and cashew-nut trees, although according to him, at the time of cyclone, most of the trees were destroyed. The respondent No. 23, according to DW 1, used to get 2 to 2 1/2 maunds of cashew-nut every year. Besides, he had 3 to 4 bamboo clumps. In Ext. D, a reference had been made to the transfer of trees. DW 4, the son of the original appellant No. 1, had testified about the destruction of the trees on the land of the respondent No. 23 by cyclone, but on his own admission, he had no personal knowledge about the same. There was no specific evidence from the side of the contesting defendants as to the actual yield from the land in question and their evidence with regard to the necessities of the family of the respondent No. 23 was vague and unsatisfactory. It cannot, therefore, be said that the trial court went wrong in coming to the conclusion that there was no legal necessity for the alienations.
8. Coming to the sales under Exts. A and D in favour of the original appellant No. 1 and the appellant No. 2 respectively, the learned Subordinate Judge had given due consideration to the evidence from both the sides in reaching the conclusion that the sales were not for legal necessity or for the benefit to the estate of the family.
9. As regards the sale in favour of original appellant No. 1 as per Ext. A for Rs. 100/- on 25-11-1957, reliance was placed on the evidence of DW 4, the son of the appellant to the effect that at the instance of his father, he got the sale deed executed and, registered. The (Original appellant No. 1 had in his written statement stated that the respondent No. 23 had necessity to sell the land for household expenses and for maintenance of the family. A recital had been made in Ext. A that the sale was for household expenses. No clear evidence had been led as to the nature of the household expenses. At the time of the execution of Ext. A, DW 4 was reading in class IX and was about 18 years of age. It was, therefore, highly unlikely, as found by the trial court in . paragraph 26 of the judgment, that this witness would have been entrusted with the execution of the sale deed by the respondent No. 23. The repayment of the loan of Rs. 50/~ to Khetramohan Sahu by DW 4 out of the consideration money after which the handnote was destroyed, as deposed to by DW 4, was not mentioned in the sale deed and has not been supported by any other witness. DW 4 has, no doubt, deposed that his father was old and ailing at the time of the trial of the suit and was not in a position to move about, but there was nothing to show that he was not in a position to depose or that he could not have been examined on commission. This was not done. DW 4 has admitted in his cross-examination that he had not been keeping any information regarding the family of the respondent No. 23. Thus, apart from the intrinsic weaknesses in the evidence of DW 4, there was no independent evidence to support the case of the original appellant No. 1 that the sale in his favour was for legal necessity. There was also no clear evidence that the original appellant No. 1 or his family members had made due and proper enquiries as to the existence of legal necessity for the sale of the land as per Ext. A. The learned Subordinate Judge has rightly concluded that legal necessity for this sale has not been established.
10. As for the sale in favour of the appellant No. 2 of the entire homestead land of the family of the respondent No. 23 vide Ext. D for Rs. 2,500/- on 16-10-1963, the evidence with regard to the legal necessity justifying the sale or to show that the sale was for the benefit to the estate was unsatisfactory., It had been pleaded by the appellant No. 2 in his written statement that the. respondent No. 23 was in urgent need of money for the marriage expenses of his daughter, household expenses and for getting a piece of land from his brother-in-law for the purpose of moving away to the latter's village. In Ext. D, it had been stated that the sale was for repayment of some debts and for purchasing a piece of land at another place for the purpose of residence. There was no averment therein with regard to the expenses for the marriage of his daughter. It is admitted on all hands that under Ext. D, the entire homestead land of the family was disposed of. The evidence of the appellant No. 2 as DW 2 was that the respondent No. 23 had necessity to sell the land as he was to purchase a homestead land at Handipada from his brother-in-law at a low price and besides, he was in need of money for household expenses and he (DW 2) made enquiries as to the existence of the necessity. There was no evidence to show that the ancestral house of the respondent No. 23 and his sons was in a dilapidated condition or that there was pressing necessity to dispose of that piece of homestead land with the house thereon. There was evidence to show that the family of the respondent No. 23 after the sale of this land had been residing in a house standing on the land of the uncle of the respondents Nos. 1 and 2, but as the evidence would show, after the purchase of the entire homestead land, the appellant No. 2 had driven away the respondents Nos. 1 and 2 and their father and, therefore, they had shifted to Handipada where they had been staying. No satisfactory evidence had been led to show that out of the consideration money, the respondent No. 23 had purchased any house site. No sale deed showing any such purchase has been brought into evidence. In the absence of other evidence, the mere fact that the respondent No. 23 had been staying elsewhere would not lead one to the conclusion that the site on which they had been staying had been purchased by them or transferred in their favour on the basis of consideration being paid out of the sale price. DW 2 (appellant No. 2) has stated in his cross-examination that after finishing the marriage of his daughter, the respondent No. 23 sold the land and left the house. The appellant No. 2 has not testified as regards the amount required or spent by the respondent No. 23 for household expenses. He has not deposed with regard to the necessity for repayment of loan about which a statement had been made in the sale deed (Ext. D). There was, therefore, no satisfactory evidence from the side of the appellant No. 2 as regards the legal necessity for the sale of the entire homestead land of the family vide Ext. D nor was there any clear and convincing evidence to show that this appellant had made due and bona fide enquiries as to the existence of such legal necessity.
11. The sale of the entire homestead land by the respondent No. 23 in favour of the appellant No. 2 only for the purpose of shifting to another place could not be said to be for the benefit to the estate of the family. If the sale in the instant case had been for the purchase of another piece of land for construction of a residential house on the ground that the house standing on the homestead land was a dilapidated one and could be of no use to the family unless renovated involving needless outlay of money or that for some cogent and relevant reason the family residential house was not suitable for occupation and a shift to a new locality was expedient, it could not be said that it was for the benefit to the family. As already indicated, there was no evidence that the house standing on the homestead land of the family was in a dilapidated condition. There was no satisfactory evidence to indicate that the homestead land sold as per Ext. D had been sold for a, higher price for the purpose of purchas-ing another piece of homestead land at a lower price. The sale of the entirel homestead land of the family in favour' of the appellant No. 2, in the circum-stances of the case, could not be said to be an act of prudent management by the respondent No. 23 and it could not thus be said to be for the benefit to the estate of the family.
12. For the aforesaid reasons, the findings recorded by the learned Subordinate Judge that the sales in favour of the appellants as per Exts. A and D were not for legal necessity and the sale in favour of the appellant No. 2 was not for the benefit to the estate of the family are well-founded on facts and sustainable in law.
13. In course of the hearing, we suggested to counsel for the plaintiffs-respondents that in regard to the sale of homestead under Ext. D, where the alienation is found not to have been a prudent act of the lather, the alienee should be compensated in the matter of refund of at least a part of the consideration. On the basis of agreement of parties, we direct that as a condition to Ext. D being set aside, the plaintiffs would pay to the alienee thereunder half the consideration money, i.e., a sum of Rs. 1,250/- and failing payment, the alienee would be entitled to recover that amount through execution by virtue of the decree in this appeal.
14. Subject to this modification only, the judgment and decree of the trial court are affirmed and the appeal is dismissed with costs
R. N. Misra, C.J.
15. I agree.