1. It is plaintiffs' second appeal in a suit for declaration of title and recovery of possession of the disputed 4 acres of lands said to have been purchased by him from defendant 12 on 10th July 1948. Besides, he claims mesne profits of Rs. 216-8-0 for having been unlawfully kept out of possession by defendants 1 to 11. Defendant 12, the plaintiffs' vendor, on his part had acquired the properties by a sale-deed dated 13th May 1938 executed by Gourang (father of defendant 3), Mohan, defendant 1, Baji (father of defendants 4 and 5) and Arjuna (defendant 2), who at the time along with certain other members, who are defendants in the case, constituted a Hindu Mitaksbara joint family. Defendants 1 to 11 contested the suit on the ground that the transaction represented by the sale-deed in favour of defendant 12 was a fictitious one, it having been intended by the parties to execute a banami document. Besides, defendants 3 to 11 raised further plea that in case the plea of benami fails defendant 12 shall not be taken to have acquired any title which he could validly convey to the plaintiffs as there was no legal necessity for the sale.
2. On these pleas, the parties went into evidence and the learned trial Judge gave the plaintiffs a decree, holding that the plea of benami was false and that the sale in favour of defendant 12 was justified by existing legal necessity.
3. The learned lower appellate Court, however, reversed the decree of the trial Judge holding that there was no legal necessity which could justify a sale of the joint family properties by some of the coparceners even though they were for the time being managers of the family.
4. The plaintiffs in second appeal contend that the finding of the learned lower appellate Court is wrong, he having misconceived the principles of Hindu law and the principles of Law of Evidence in considering the case in order to arrive at a finding as to the necessities or otherwise of the legal necessity.
5. It is admitted that those who executed the sale-deed in favour of defendant 12 were the elderly adult members of the family at the time and were accepted as managers. It is further proved and not controverted in this Court that defendant 12 had, in his favour, two promissory notes, one executed by Gourang and another by Gourang, Mohan and Naran. It is further contended that the dues under those promissory notes could not be considered to be joint family debts so as to constitute legal necessity for the sale. It has been found, as a fact, by the learned lower appellate Court that the family owned 50 or 25 acres of land and it being a family of carpenter some of them used to make some earnings. It is accepted in this case that the family was a big family. According to the recitals in the sale deed, the payment of loans due under the aforesaid promissory notes and a cash payment of Rs. 50 needed for family necessities constitute not only the consideration for the sale-deed but also the legal necessity binding on the family. Under the circumstances, it has to be considered whether on proper application of the principles of Hindu law and the rules of evidence the finding arrived at by the learned lower appellate Court is correct.
6. It has to be noticed that some of the executants of the sale-deed of 1985 are fathers of some of the contesting defendants, and on that basis it has been urged that in the absence of proof of legal necessity, but on proof of mere existence of debts the fathers were entitled to alienate their shares in the joint family proper, ties so as to bind their sons and in that view in the absence of proof of legal necessity the plain, tiffs are entitled to the partial success. This position is not free from difficulty and I shall refrain from expressing any opinion whether in a case with facts as in the present case the plaintiff shall be entitled to succeed partially, that is, in respect of the shares of some of the executants and that of their lineal and direct descendants. In my view, the plaintiff's case should stand or fall as a whole. Besides, the contention of Mr. Das, just now disposed of, cannot be accepted to be correct. Their Lordships of the Privy Council in the case of Brij Narain v. Mangla Prasad and Ors. reported in A.I.R. 1924 P.C. 50 have summed up certain propositions as a result of their review of the authorities. Those propositions are five in number. The propositions (2) and (8) read together throw a considerable doubt on the correctness of Mr. Das's contention that the father could without a legal necessity alienate 4th properties of the family so as to bind the sons.
7. The second and third propositions are: (2) If he is the father and the other members 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; (3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.
8. Therefore, if this argument could be entertained, this will lead us to certain enquiries which I do not find material for the' purpose of this appeal.
9. The finding of the learned lower appellate Court is certainly vitiated by his misconception of the law as to 'the onus to prove'. He is quite correct to say that the actual onus to prove legal necessity lies either on the purchaser or on the creditor, as the case may be, but he over-looks completely that there may be circumstances in a case which should shift that burden on to the opposite shoulder. The circumstances in this case were that almost all the adult members who were here also managers of the family joined in transferring the property to defendant 12. Secondly, some of those members who join, ed were not parties to the promissory notes executed in favour of defendant 12, the dues under which constituted by far the larger part of the consideration, and such members too admitted that the debts outstanding were family debts and were valid and recoverable from the family. In conjunction-'with this, it has to be borne in mind that this family, unique as it is, has been existing and functioning as a Mitakshara joint family uptil now precluding thereby any supposition or idea that the members who effected alienation had anything like a self-interest to serve at the cost of others. Lastly, the most important of all circumstances is that all the defendants of whom only one was minor had allowed this alienated property to be possessed by defendant 12, the alienee, for well-nigh 12 years though not complete 12 years. This circum stance acquires still greater influence in its weightage as evidence when we bear in mind the settled position of law that
an alienation by the manager of the joint family made without legal necessity is not void but voidable at the option of the other coparceners. They may confirm of they may repudiate.Had all the defendants been managers at the time when they allowed defendant 12 to possess the property that should have been sufficient to hold that the transaction was ratified and reaffirmed by the members who could, if they liked, challenge it. The circumstance in this particular case is that they themselves were cultivating the lands and paying the produce rent to the alienee. It is this conduct which attributes not only absence of repudiation but confirmative ratification of the transaction. In view that some of the members are minors, it would amount to this that not only the adult members who joined in execution of the document but the other adult members who could repudiate it knowingly confirmed it. This conduct could only be explained by consciousness on the part of the family that the transaction was one which was valid and binding against them. To say the least, this circumstance combined with others already set forth above, will lead to a very strong presumption in favour of existence of legal necessity. In this connexion, I shall quote a passage from Mulla's Principles of Hindu Law, Edn. 10 (1946), Rule 280, Section 242 (2a):
Where a joint family consists of adults and minors, the mere fact that all the adult members including the manager have consented to the alienation is not proof of legal necessity. Such consent, however, may supply any lacuna that may exist in the evidence of legal necessity.10. I should, in this connexion, appreciate the judgment of the trial Judge who took these circumstances into consideration and held that the evidence adduced supported by the circumstances was quite sufficient to discharge the onus that lay on the purchaser. He says:
It is for the purchaser to prove the legal necessity. Of course no particular standard of such a proof has been laid down. I am to find from the circumstances and the evidence whether there was any necessity for such a sale. Now on behalf of the defendants, defendant 1 and defendant 11 have been examined. Defendant 1 is D.W. 1 while defendant 11 is D.W. 3. I have already said that defendant 1 is an executant of the sale deed, Ex. 1-a. His defense that it is a benami document is not believed. He would say that there was no necessity to execute a sale deed in favour of defendant 12. It is not open to him to take up the stand he being an executant. The other defendant D.W. 3 who is not an executant of the sale deed does not even Bay a word in his evidence that the family had never any necessity to execute a sale deed.11. The direct and actual evidence as to legal necessity has been given by defendant 12. This evidence has been criticised by Mr. Sengupta very critically by which he wants to contend that his evidence amounts to nothing more and nothing less than what he heard from the vendors themselves. As such, this evidence neither proves, according to him, the legal necessity nor bona fide and independent enquiry. It has, however, been argued that on his own statement it is demonstrated that the pro-notes had been completely barred by time at the time of the sale-deed and as such could not be the foundation for existence of legal necessity. He, however, argues that the onus on the purchaser is not satisfied by merely proving that there were debts which formed the consideration of the sale-deed but that these debts bad been incurred for legal necessities of the family, in other words, that the debts were binding on the family. This last, as a proposition of law, is quite correct and I shall not demur to it; but the facts of this case are completely otherwise. The learned trial Court had come to the conclusion that these pro-notes had been incurred for family maintenance and necessities as deposed' to by defendant 12 (P.W. 5). The learned lower appellate Court held that these debts had been barred and hence could not be considered to constitute legal necessity in support of the sale. The passage in the evidence of defendant 12 or which he relied was like this that the hand-notes had been executed 4 or 5 years before the sale-deed and there was no payment in the interval. If this is all, as in fact it is all, they do not make out a case of time for suit for pro-notes having been expired. Payment either towards interest or towards principal of a debt is not the only mode of saving limitation. Besides, we do-not know whether the-pro-notes or any one of them was an unregistered one or a registered one. Even assuming that they are unregistered for which there may be good reason as it has never been asserted that they were registered I should hold that the evidence relied upon by the learned lower appellate Court is not legally sufficient to lead to the only conclusion as ho takes it to be that they were barred. As against this he has overlooked the admission of the executants in the sale-deed that the dues outstanding under the hand-notes were validly existing debts of the family (WAJIB FAUNA). True the recitals in such documents are themselves subjects for examinations in relation to existence or otherwise of legal necessity but such collateral facts cannot be assumed to have been told falsely and the heavy onus is on him who having been a party to such a statement wants to resale from it and to state a contrary case. At any rate, this is a piece of evidence which deserves consideration along with other evidence on record. Under the circumstances, I cannot uphold the finding that the pro-notes were barred by limitation. On the other band, I agree with the finding of the trial Court that they were existing debts.
12. The next question that arises in connexion with these debts is whether they were incurred for family necessities. Defendant 12's is the only evidence on record on this point. As pointed out by the learned trial Judge, all the defendants here resisted the suit on the ground of absence of legal necessity put forth on their behalf. D.W. 3 is their witness on this point. The trial Judge observes:
The other defendant D.W. 3 who is not an executant of the Bale deed does not even say a word in his evidence that the family had never any necessity to execute a sale deed, It is he who represents the entire body of the non-executant defendants. It was for him to give a rebutting evidence to the evidence given by defendant 12.Defendant 12's evidence was, in examination-in-chief, that the loans had been incurred for family maintenance necessities. In course of cross-examination, he could not give sufficient details of the family properties. On being questioned, he answered that he had asked the vendors about the necessity. Rightly enough this enquiry from the vendors has been tinder stood by the trial Judge to mean 'enquiry at the time of sale.' Attention has to be paid to the word 'vendor' as distinguished from 'debtor.' At the time of pro-notes, the executants were merely debtors; they and others became vendors at the time of the sale deed. With this distinction the cross-examination, in fact, does not in the least affect the statement made in the examination-in-chief. There is nothing in cross-examination to confine defendant 12's knowledge as to the family maintenance necessities to what he heard from the 'vendors.' Besides he is accepted by the defendants to be their relation in whom they could confide for the purpose of execution of a benami sale deed. There is every probability that he had a direct knowledge as to the necessity of the family. In short, the cross-examination has not been pushed to such a length as to establish that his knowledge as to family maintenance necessities was one based upon what he simply heard from debtors themselves. On the point of enquiry as a measure of abundant caution he might have confided himself to questioning the debtors. But that will not affect the sale deed nor the debts under the pro-notes. It is only when actual existence of necessity is not established the creditor may take shelter under bona fide and independent enquiry. In this case, defendant 12's statement based upon his knowledge that there were family maintenance necessities for which the loans were advanced standing uncontradicted, as it does, by the only witness (D.W. 3) examined by the non-executant contesting defendants had been rightly accepted by the trial Court. The learned lower appellate Court differed from that finding mainly because he was of opinion that the debts had been barred. Under the circumstances, the justifying legal necessity must be taken to have been established.
13. Then remains the question of sum of Rs. 50 which was advanced in cash. Assuming that there was no neceasity for that part of the consideration, the position is not affected in the least. In this connexion, I invite attention to a decision of their Lordships of the Privy Council in the case of Krishna Das and Ors. v. Nathu Bam and Anr. reported in . There was a large number of a Indian decisions in which it was-held that in case a part of the consideration was not established to be binding on the family then alienation should be upheld subject to the conditions of repaying that amount to the family or the members who challenged the transaction. Their Lorships came to this conclusion:
In a suit to set aside a sale of joint family property, it was proved that the purchaser had made due enquiry as to the necessity for the sale, that Rs. 3000 out of the price of Rs. 3500 bad been applied to purposes of necessity and that the price was adequate. The High Court made a decree setting aside the sale conditionally upon Rs. 3000 being repaid to the purchaser:
Held, that the decree was contrary to principle and authority, and that the suit should be dismissed.
A decree upholding a sale conditionally upon the purchaser paying a small part of the price not proved to have been applied to purposes of necessity is also contrary to authority.
14. In this view of the matter, even if the purchaser fails to establish either due and bona fide enquiry or actual existence of legal necessity to warrant raising of that money by the family, the sale has to be upheld and that unconditionally. I have just forgotten, to say a word regarding the comments of Mr. Sengupta on defendant 12's scanty knowledge or absence of knowledge as to the extent of the family properties and the extent the normal expense that the family had to incur for the purpose of its maintenance and conduct of business of carpentery. He argues that this knocks the soundness of his knowledge as to the existence of family maintenance necessity out of its bottom. This is completely fallacious; if it transpires that the family has extensible properties and correspondingly fairly valuable lands that is not sufficient criterion to lead to an inference that the family maintenance necessity will never arise. The manager of the family may not be a prudent manager or might have squandered or might have been guilty of malfeasance or misfeasance and this might have brought a precarious condition to the state of the family. It is a settled principle of law that neither a creditor nor an alienee is bound by any precedent mismanagement of the family property. He is concerned with actual existence of family necessity at the time of the transaction in question. Therefore, the evidentiary value of his statement as to the existence of the family necessity cannot be detracted from on account of his scanty knowledge or no knowledge as to the extent of the family properties and their normal and abnormal necessities.
15. In consideration of what I have said above, I should hold that the sale in question in favour of defendant 12 was a binding one and the plaintiff purchasing for consideration from him has acquired the title that he claimed a declaration for and is entitled to recover possession of the properties.
16. The learned trial Judge gave the plaintiff a decree for Rs. 130 as damages. The extent of this damage has not been controverted in this Court. I should, therefore, allow the appeal, set aside the judgment of the learned lower appellate Court and restore that of the trial Judge along with that for recovery of damages and mesne profits. The respondents 'must pay the costs of these appellants throughout.