G.K. Misra, J.
1. Plaintiff is the appellant. Her case may be stated in brief. Defendant 1 is the husband of defendant No. 2 and father of defendants 3 to 7. They constitute a Hindu Mitakshara joint family of which defendant 1 is the Karta. They have their houses in the town of Athmallik and also in village Kandhapara whereto their agricultural lands are situate.
Defendant 1's wife was seriously ill. So he wanted to shift his residence from the Athmaltik town. For the purpose of purchasing a new house-site and constructing a house thereon and for repayment of loan incurred from the Co-operative Bank, defendant 1 wanted to dispose of the house site mentioned in the schedule attached to the plaint and sold the land with the house thereon to the plaintiff for Rs. 1175-00. On 2-2-1959, he executed a contract for sale (Ex. 4) on payment of Rs. 100/-. On the next day, he executed a registered sale-deed (Es. 1) on behalf of himself and his minor sons and received the balance of Rs. 1075.00. A formal delivery of possession was given; but the defendants were allowed to continue in the house for 2 months. As the house was not subsequently given possession of, the suit is filed for declaration of title and recovery of possession.
2. Defendant 1 was ex parte. Defendants 2 to 7, contested the suit challenging the alienation. They averred that there was no necessity for purchasing a new house site and there was also no immediate necessity for liquidating the loan from the Co-operative Bank. They further stated that defendant 1 was not the Karta of the family and the sale was not for adequate consideration.
It is admitted that defendant 2 was attacked with tuberculosis; but on proper treatment being held at Kalabandi Tuberculosis Hospital, she had fully recovered and returned to that suit house where she resides for the last three and half years and that there was no necessity for shifting from the suit house. The suit property is the ancestral family house and defendant 1 had sufficient earnings from his business as a tailor and had no necessity to effect the sale.
3. The learned Munsif recorded the following findings :-
(i) Defendant No. 1 was the Karta of the family at the time of the sale.
(ii) The sale was for adequate consideration and the consideration had been paid.
(iii) The sale was for payment of antecedent debt which defendant 1 had incurred from the Athmallik Land Mortgage Bank by execution of the registered mortgage bond (Ex. 2) dated 26-2-1958 for Rs. 800/-.
(iv) The sale was for acquisition of a new house site and construction of a house thereon.
(v) Defendant 1 did not act prudently in disposing of the suit house-site and the house.
On the last finding he dismissed the suit.
4. Before the learned Subordinate Judge the aforesaid findings (i) to (iii) were not assailed. He held-
(a) ''It is extremely doubtful if defendant No. 1 alienated the suit property for the purpose, of acquiring a new homestead and constructing a house thereon.'
(b) 'The plaintiff has not been able to satisfy why it was so vary urgent to transfer the suit property for the payment of loan under Ext. 2 which was payable in easy instalments in course of 7 years.
Thus there was no pressing legal necessity for transfer of the suit property to the plaintiff under Ext 1.'
5. Both the findings are pure findings of fact and are not assailable in second appeal. Mr. Ranjit Mohanty, however, urged that the major part of the consideration under the sale was for the purpose of repayment of the antecedent debt under Ext. 2 and even without pressing necessity the father had the cower to alienate the joint family estate for discharge of the antecedent debt. The total consideration under the sale is Rs. 1175/-. It was conceded on either side that by the date of the sale en 3-2-1959, Rs. 850-00 was payable under Ext. 2 out of which Rs. 107.40 nP had been paid. So the balance of Rs. 752.60 n,P was payable towards the dues under Ex. 2. The amount payable under the mortgage bond (Ex. 2) constituted almost two-thirds of the total consideration.
6. Mr. D. Mohanty does not dispute the existance of the debt to the extent of Rs. 752.60 nP. incurred by the father and also the antecedency of the debt. Mr. Ranjit Mohanty also does not dispute that there was no pressure for payment of the antecedent debt. The father could have waited for six years more to discharge the loan by paying easy annual instalments. The point for determination is whether the father can alienate the joint family estate so as to bind the sons to discharge the antecedent debt though there was no pressing necessity.
7. Mr. D. Mohanty contends that in order to justify an alienation made by a father, it is not sufficient to show that an antecedent debt was outstanding. It must further be shown that the alienation had to be undertaken under the pressure of a present necessity for the discharge of the debt. , He bases his reasonings on the observations of their Lordships of the Judicial Committee in Hunooman Parshad Pandey v. Babooee Mundraj Koonweree, 6 Moo Ind App 393 (PC), that the power of a limited owner to charge the estate can only be exercised in case of need, or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon the particular instance, are the things to be regarded. According to him, the aforesaid principle will also apply in case of alienation of the joint family estate by the father for the payment of antecedent debts. In support of his contention, he places reliance on Saheb Singh v. Girdhari Lal, AIR 1924 All 24; M. Rama Rao v. M. Venkata Subbayya, AIR 1937 Mad 274, Bansilal v. Shivlal, AIR 1953 Bom 361 and Meenakshi Achi v. Manikkam Chettiar, AIR 1960 Mad 99. The question requires a careful examination.
8. In Brijnarain v. Mangla Prasad, 51 Ind App 129 : (AIR 1924 PC 50), their Lordships formulated 5 propositions. Proposition No. 2 is that if the managing member of the joint undivided estate is the father and the other members are the sons, he may, 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. The1 language is unqualified and the alienation of the joint family estate is not dependent upon the pressure for payment of the antecedent debt. The obligation arises by the factum of incurring of antecedent debt which must be truly independent, both in fact as well as in time and not part of the transaction impeached.
The best authority directly in support of Mr. D. Mohanty's contention is Bandhu Ram v. Ram Kishun Sonar, AIR 1923 All 535, the judgment in which was delivered on 15-3-1923 while the Judicial Committee delivered its judgment in 51 Ind App 129 : (AIR 1924 PG 50) in November 1923, This Allahabad decision has been dissented from and not followed in Baburao v. Pandharinath, AIR 1930 Mag 43; M. Rama Rao v. M. Hanumantha Rao, AIR 1930 Mad 325 and Subbarayulu Chettiar v. Ratnani Ayyar, AIR 1931 Mad 615 as not laying down the correct law after the pronouncement of their Lordships of the Judicial Committee. These authorities have ruled that pressure is not a pre-requisite of antecedency and the antcedent debts by the father do by themselves constitute a form of legal necessity which justifies the alienation and renders it unimpeachable by the son.
9. The principle laid down by their Lordships of the Judicial Committee in Hynooman Pershad Pandey's iase, 6 Moo Ind App 393 (PC), largely applies to the casa of antecedent debt though it has no full application. If it is proved that there was an antecedent debt, or that the alienee inquired and believed in good faith that such a debt existed and that the alienation was made for satisfying the debt, then the burden of proving that the antecedent debt was incurred for immoral or illegal purposes lies on the son who impugns the alienation: Raghunath Ramchandra v. Ramchandra Narayan, AIR 1939 Bom 396.
It has, however, been rightly observed in AIR 1960 Marl 99 that though in principle the observations in 6 Moo Ind App 393 (PC) apply to a case of anteced it debt, in actual application of the rule between a case of necessity and a case of antecedent debt, there will be a difference. In the former case, the existence of necessity would itself be a matter of representation and inquiry and if a bona fide lender satisfies himself as to the existence of necessity, it would not be necessary that the necessity should have actually existed. But in the case of antecedent debt, the existence of the debt should be proved as otherwise it would not be held that the inquiry was full and bona fide. The observation in 6 Moo Ind App 393 (PC) that the touchstone of authority is the necessity, and the necessity must be judged by the test of the pressure on the estate, the danger to be averted and the benefit to be conferred upon have no application to the case of an antecedent debt. It is not essential for the application of this doctrine that the debt should have become payable and should have bean paid by the alienee. In other words, alienee can succeed even though the debt has not matured and the alienee has not paid the fullconsideration and discharged the antecedent debt, AIR1931 Mad 615. The legal position is clear that on proof of theexistence of antecedent debt, alienation of the joint familyestate by the father is not impeachable by sons. But isbased on the theory of pious obligation which arises fromthe relationship of father and son and not the accidentof the father being also the manager of the joint family,AIR 1960 Mad 99 approves the dictum laid down in AIR1937 Mad 274 and all the decisions cited by Mr. D.Mohanty do not lay down any contrary view. In fact the alienation was justified in AIR 1937 Mad 274 on proof of mere existence of antecedent debt. In paragraph 13 in AIR 1953 Bom 361, his Lordship observed-
'The alienation would be binding upon the sons if the alienation had taken place only for the payment of antecedent debt.'
At a later stage, however, his Lordship appears to have taken a view similar to the one in AIR 1923 All 535 which does not lay down good law. Most of the decisions on which Mr. D. Mohanty placed reliance are not opposed to the view I have taken. But if any of these decisions is construed to have taken the contrary view, J . respectfully differ from those. The alienation of the disputed land for the discharge of the mortgage bond in this case is therefore justified and cannot be questioned by the sons.
10. The next question that arises for consideration is that out of Rs. 1175/-, a consideration of Rs. 752-60 nP constituted the antecedent debt. With regard So the balance, the finding of the learned lower appellate Court is that there was no legal necessity nor bona fids enquiry. the question, is whether the alienation would be set aside in the circumstances. In Sri Krishan Das v. Nathu Ram, 54 Ind App 79 : (AIR 1927 PC 37), their Lordships of the Judicial Committee observed-
'it would rather appear that in any case where the sale has been held to be justified but 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. This is in line with a series of decisions already referred to, in which it was held that where a purchaser acts in good faith, and after due enquiry, and is able to show that the sale itself was justified by legal necessity, he is under no obligation to inquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale.'
The identical principle applies to the case of enantecedent debt. The sale in, this case is justified forrepayment of the antecedent debt which constituted themajor part of the consideration. The finding is that thealienation was for adequate consideration. In such circumstances, the sale, as a whole, is upheld and the alieneeis not bound to make repayment of the balance to thesons.
11. In the result, the appeal is allowed, the judgment of the learned lower appellate Court is set aside and the plaintiffs' suit is decreed. In the circumstances, parties to bear their own costs throughout.