1. Defendants 1 to 3 are the appellants in this second appeal. It arises out of a suit filed by the plaintiffs to set aside and alienation and to recover the property comprised therein from the possession of the defendants. Defendant 4 and plaintiff 1 are the sons of one Bhuban Meher. Plaintiff 2 is the son of plaintiff 1. Defendants 5, 6 and 7 are the sons of defendant 4. The alienation sought to be impeached is a sale-deed, Ex C, dated 1st March 1933 of lands of the extent of 1-5 acres (it may be noted that the plaint mentions lands of 1.26 decimals) which admittedly are the joint family property of the plaintiffs and defendants 4 to 7. The sale-deed purports to have been executed by Bhuban and his two sons defendant 4 and plaintiff 1. Defendant 4 has signed it also for his minor sons 6 to 7 and plaintiff 1 for his then minor son, plaintiff 2. The alienees under the sale-deed are the brothers of Bhuban Meher, viz., defendant 3 and the father of defendants 1 and 2. The consideration for the sale deed is a sum of Rs. 155. The case for the plaintiffs was that plaintiff 1 did not execute the sale deed either for himself or as guardian of his minor son, plaintiff 2 and that he was not a consenting party to the alienation. The signature of plaintiff I appearing on the sale deed, Ex. C, was alleged to be forgery. Both the Courts below have found it to be genuine and that finding having become conclusive, it must now be taken that the plaintiff was also an executant of the sale-deed for himself and his son. Since, however, the sale-deed has been executed on behalf of the then minor plaintiff 2 (as also on behalf of minor defendants 5, 6 and 7 who are still minors, though they have not come forward to challenge the alienation), the question as to whether the Bale deed is valid and binding as being justified by legal necessity has been raised in the Courts below and is the subject-matter of issue 3 The Courts below have found that Rs. 106-7-3 out of the Bale consideration was for the purpose of discharging the decree amount due to one Narain Gountia from the plaintiff's family and that the said sum was actually utilised for payment of the said decree, as appears from the endorsements on the decree, marked as Exs. B and B-1. Both the Courts however set aside the alienation on the ground that neither the actual necessity nor a bona fide inquiry as to the existence of necessity for the balance amount of about Rs. 50 has been made out by the alienees. They accordingly passed the decree in favour of the plaintiffs for possession of the suit property on condition of the contesting defendants 1 to 3 paying up the sum of Rs. 1C6-7-3 found to have been applied for legal necessity out of the consideration for the same. It is against this decree that defendants 1 to 3 have come up in second appeal.
2. It is argued for the appellant that the judgments of the Courts below are erroneous and that since the major portion of the consideration for the sale, deed has been found to have been applied for legal necessity, the sale had to be upheld and that the Courts below have not correctly appreciated the material questions arising in a case of this kind. Before dealing with that matter, it is necessary to notice two other questions that arise in the suit. The suit property is a land situated in the district of Sambalpur of which the plaintiff's family are the occupancy tenants. The sale purported to be by means of a document, EX. c which has not been registered. It is pointed out that under Section 46 (3), Central Provinces Tenancy Act, such a transfer is not valid except as covered by the proviso thereto and that the registration of a transfer not covered by the proviso to Sub-section (3) is prohibited under Sub-section (5). This point, however, is not a substantial one, because it is clear from that subsection itself as also from Section 47 that such a transaction is only voidable and can be avoided, not by the very transferors themselves, but by the persons who are indicated in Section 47 and that too within two years from the date on which the alienees obtained possession under the transfer. Admittedly the alienees have been in possession from the date of the sale in 1933 and are also themselves the persons being brothers of Bhuban Meher, who might have been entitled to avoid the transfer under Section 47 if the alienation had been in favour of the strangers. This contention has therefore no merit.
3. The fact that the sale-deed, EX. c is not registered, raised another difficulty for the contesting defendants, namely, that no title as such has passed to them under the sale deed. They are, however, entitled to rely on Section 63A, T. P. Act, inasmuch as it has been definitely found by both the Courts below and virtually admitted by defendant 4 who is an executant of the sale-deed that the vendees have been in possession of the property sold from the date of the sale in pursuance of the same. The question that has been raised is whether Section 53A would avail the contesting defendants as against plaintiff 2 (and defendants 5 to 7), who were minors at the time of the execution of the sale deed. It may plausibly be contended that since Section 53A, T. P. Act, is a statutory recognition of the principle of estoppel embodied in the doctrine of part performance, the same would not avail as against minors since there can be no estoppel against a minor. There is. however, no scope for any such contention in view of the recent decision of the Privy Council in Subramanyan v. Subba Rao, A.I.R. (35) 1948 P. C. 96: (I.L.R. (1949) Mad. 141) which has authoritatively decided that if a minor is a party to a sale-deed, through his guardian he is as much a transferee within the meaning of Section 53A and that therefore the statutory protection given to the alienee under Section 63A is equally applicable against him.
4. The question that arises in this case has, therefore, to be considered on the footing that as between the parties to the document, EX. c, it is to be treated as a valid sale-deed in spite of the absence of registration in so far as any attempt to recover possession on the basis of want of title in the alienee is sought to be made, by or on behalf of any of the alienors. The question has, therefore, to be consideredwhether on the footing of its being a valid sale-deed, it is binding as against the minors on account of justifying legal necessity. As already stated above, both the Courts below have held that it is not so binding since a portion of the sale consideration has not been proved of any inquiry that that portion was required for legal necessity. In coming to the above conclusion, the Courts below purported to follow the decision in Durga Prosad v. Jewdhari Singh, 62 Cal. 733; (A.I.R. (23) 1936 Cal. 118). The facts of that case are somewhat peculiar and the case itself was one of a mortgage in which different consideration may apply as pointed out in that very case. There are, however, passages in that judgment which taken out of the context are likely to be somewhat misleading. The principles applicable to a case of this kind have been clearly and unmistakably laid down in the Privy Council cases and it is unnecessary to go beyond them. The fountain source of the case-law on the subject of the power of alienation of limited owners and managers or guardians in Hindu law is the case in Hunooman Pershad v. Mt. Babooee Mundraj Koonweree. 6 M.I.A. 393; (18 W. R. 81n). The law is stated at pp. 423-494 as follows:
'The power of the Manager for an infant heir to charge an estate not his own, is, tinder the Hindoo law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagment of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But of course, if that danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot take advantage of his own wrong, to support a charge in his own favour against the heir, grounded on a necessity which his wrong has helped to cause. Therefore the lender in this case, unless he is shown to have acted mala fide will not be affected, though it be shown that, with better management, the estate might have been kept free from debt. Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under such circumstances, he is bound to see to the application of the money.'
5. It is clear from this passage that the primary test for the validity of an alienation by a limited owner is the existence as a fact of necessity (or benefit) for the particular transaction. Bat it is not a condition precedent. If the alienee has made a bond fide enquiry and on such inquiry he finds the existence of the alleged sufficient and reasonably credited necessity, thisis sufficient and he need not see to the application of the funds. It is, therefore, to be seen that bona fide enquiry as to the existence of necessity and reasonable satisfaction on such inquiry is an alternative to the existence of the necessity bat not in addition thereto. That this is the correct view, is clear from the summary of the legal position as mentioned in Mulla's Hindu Law, Edn. 10, p. 385, para. 244, wherein it is stated :
'Where the manager of a joint Hindu family sells or mortgages joint family property, the purchaser or mortgagee is bound to inquire into the necessity foe the sale or mortgage, and the burden lies on the purchaser mortgagee to prove either that there was a legal necessity in fact, or that he made proper and bona fide inquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.'
It is therefore not correct to assume broadly that both legal necessity in fact, and inquiry, have to be made oat is all cases. What, however, has to be emphasised and appreciated is that the necessity required to be proved is the necessity for the particular transaction as each which is challenged, which is not quite the same as necessity for each individual item of the consideration or for the entirety of the consideration. For instance, in the case of an alienation by way of a mortgage, the necessity for the entire consideration may have been proved but the terms may be found to be exorbitant and not justified by the circumstances. The mortgage would then be invalid. In the case of an alienation by way of sale, on the other hand, a part of the consideration may have been shown not to be for legal necessity but it may be found that a substantial portion of the consideration was required or applied for legal necessity and that to raise that amount the particular transaction by way of sale was reasonably prudent and necessary. As pointed out in the Privy Council cases, it may not be possible to sell the exact extent of land that may be required to raise the particular amount of money which is covered by legal necessity. The sale would under those circumstances be valid notwithstanding that no necessity or inquiry for the balance is proved. These principles are clearly laid down in the leading cases of Sri Kishun Das v. Nathu Ram, A. I. R. (14) 1937 P. C. 87 ; (49 ALL. 149) and in Niamat Rai v. Din Dayal, A. I. R. (14) 1927 P. C. 121: (8 Lah. 597) and also Suraj Bhan Singh v. Sahchain Sukh, A. I. R. (14) 1927 P.c. 244 : (105 I. C. 257). There it is clearly laid down that the test in each case is whether the sale itself was one which was justified by legal necessity and their Lordships pointed oat that it is not the law that the sale will be invalidated whenever part of the consideration is not accounted for which cannot be described as small. It is noteworthy that their Lordships referred in Sri Kishun Das v. Nathu Ram, A.I.R. (14) 1927 P.C. 37: (49 ALL, 149) with approval to the earlier case of Privy Council in Thirumalaiyappa v. Nainar Tevan, A. I. R. (9) 1922 P. C. 307 : (74 I. C. 604). A perusal of this case shows that the sale therein was for Rs. 5,300 and the necessity was made out for Rs. 4588. It was proved that the balance of about Rs. 712 was appropriated by the widow to a purpose which did not constitute legal necessity. All the same the sale was upheld by the Privy Council and there was nothing to show that there was any inquiry as to the necessity for the balance. Their Lordships say in the case at p. 309 as follows :
'He (the Sub-Judge) overlooked the fact that Rupees 711-13-10 merely represented the balance of the sale price of Rs. 5300 and that it was not to raise that Rs. 711-13-10 that the property was sold. The sale would not have been invalid no matter what may have been the purpose for which the defendants applied Rs. 711-13-10.'
In Sri Kishun Das v. Nathu Ram, A. I. R. (14) 1927 P. C. 37 : (49 ALL. 149), their Lordships laid down the principle as follows;
'It would rather appear that in any case where the sale has been held to be justified bat there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes, and for the benefit of the family.'
6. It is possible that different considerations may apply to cases of mortgages as distinguished from sales, but that is not the question with which we are concerned in the present case.
7. The present being a case of an alienation by way of sale, what therefore requires to be proved is not that every portion of the consideration is required foe legal necessity or that inquiry as to necessity has been made out in respect of that portion not covered by legal necessity. What has to be judged broadly is whether for raising the amount for which legal necessity has been made out, the particular transaction by way of sale of the extent comprised therein was in fact reasonably necessary and prudent or whether the alienees were reasonably and honestly satisfied that it was so on a bona fide inquiry. It is this test that has to be applied to this case and not the test as to whether there was any inquiry as to the necessity for the surplus.
8. The Courts below not having judged the case from that aspect, the case will have to go back for a fresh consideration of the material on the record in the light of this test. It is necessary further to remark that while undoubtedly, the burden is upon the alienee, it does not me n that if the alienee does not speak positively to the existence of the necessity or to his having made an inquiry, it must necessarilyfollow that he has to fail. As pointed out by their Lordships of the Privy Council in Lakshmanna v. Venkateswarlu, A. I. R. (36) 1949 P.c. 278 at p. 285 : (76 I. A. 202), the burden of proofis not to be confused with the burden of adducing evidence. When the entire evidence is before the Court, and when on the evidence and the circumstances, the Court has no difficulty in arriving at a definite conclusion, the burden of proof recedes to the background and the person on whom the burden to prove lies is not to fail when a satisfactory conclusion can be reached in his favour on the existing material, merely because he has not himself adduced positive evidence. For instance in cases of this kind either the fact that the transaction was legally justified, or that there has been a fair and bona fide inquiry as to the existence of necessity for the transaction is one that may be possible to infer from the evidence and. the circumstances in the case. Since, however, the matter is to go back, we do not propose to say anything further as to what are the circumstances for and against which might enable the Court) to come to a definite conclusion in the matter on the existing material. The decree of the lower appellate Court must accordingly be set aside and the appeal must be remanded to that Court for rehearing in the light of the above observations. Costs will abide the result.
9. I agree.