P.C. Pandit, J.
1. This is a defendant's appeal against the order of the learned Senior Subordinate Judge, Karnal, decreeing in part the plaintiffs' suit and granting them a decree for a declaration that the sale in suit shall not bind them except to the extent of Rs. 4,5257- only, on payment of which they would be entitled to claim joint possession of the house in dispute.
2. On 8-12-1952 Chancier Parkash, defendant No. 1, sold the house in suit for Rs. 8,000/- by a registered deed to Ram Parkash, defendant No. 2. On the same day, he also executed a rent-note in favour of the vendee. Later on 2-8-1956 on the basis of this rent-note, Ram Parkash obtained an order from the Rent Controller for the ejectment of Chancier Parkash from the house in suit. In execution of this order, he applied for the delivery of possession. Thereupon, on 1-10-1956, Radhe Sham and others, plaintiffs 1 to 5, the sons, and shrimati Puma Devi, plaintiff No. 6, the wife of the vendor, brought the present suit for a declaration that the sale-deed dated 8-12-1952 executed by defendant No. 1 in favour of defendant No. 2 was null and void and ineffective as against them, as the house in dispute was the Joint Hindu family property and the sale had been made without consideration and family necessity. It was also prayed that the plaintiffs were not liable to be dispossessed from the house in question in execution of the order of the Rent Controller obtained by defendant No. 2 against defendant No. 1.
3. The suit was contested by defendant No. 2, wno. Inter alia, pleadad that the house in dispute was not thejoint Hindu family property of the plaintiffs and defendant No. 1; and that the sale made by defendant No. in his favour was for consideration and necessity. It was also stated that the house in suit had previously been mortgaged with possession on the basis of which a money-decree for sale of the mortgaged property by auction, had been passed against defendant No. 1. The previous mortgagee was getting the house sold by auction in execution of this decree and defendant No. 1 had no other alternative except to sell the same.
4. On the pleadings of the parties, the following issues were framed : -
1. Whether the house in suit is the joint Hindu family properly of the plaintiffs and Chander parkash, defendant-1 ?
2. If issue No. 1 is proved whether the sale in suit made by Chander Parkash, defendant 1, in favour of Ram Parkash, defendant 2, is for consideration and binds the other co-parceners?
3. Whether the house in suit was under mortgage when the sale in suit was made? If so, what was the extent of that mortgage charge?
4. Whether Ram Parkash has redeemed the prior mortgage and to what effect?
Whether on the date of this suit the defendants ot anyone of them was in possession of the suit property and this suit for declaration alone is not competent?
5. The trial Judge held that the house in suit was the joint Hindu family property of the plaintiffs and defendant No. 1; that the entire consideration for the sale in suit had been proved, but necessity to the extent of Rs. 4,525/- only, being the mortgage amount, was established; that the house in suit was already under mortgage, when the sale in dispute was made and defendant No. 2 had redeemed, the prior mortgage and he was, therefore, entitled to be paid this amount before possession of the house was taken from him by the plaintiffs and that the plaintiffs, who were already in joint possession of the property in dispute, could file the present suit for a declaration and the same was, therefore, competent. On these findings, the suit was partly decreed, as mentioned above. Against this, the present appeal has been filed by defendant No. 2.
6. Learned counsel for the appellant has raised two contentions before us-- (1) that the Court below was in error in holding that the house in suit was the joint Hindu family property of the plaintiffs and defendant No. 1, and (2] that necessity for the entire sale had been validly established on the record and the finding of the learned Senior Subordinate Judge that necessity for Rs. 3,475/- had not been proved was wrong. In any case the sale in dispute had been made for the benefit of the estate and as an act of good management, because the previous mortgage was getting the house sold by auction in execution of the decree that he had obtained in his favour and defendant No. 1 had no other alternative, except to sell the same.
7. It is common ground that the house in depute belonged to Nanak Chand and Chander Parkash, Defendant No. 1, is the adopted son of Nanak Ghana. According to the plantiffs, defendant Ho. I got this house in inheritance, while, according to the appellant, he got it on the basis of the wills, Exhibits D. 5 and 0, 6, executed in his favour by Nanak Chand Thetrial Court has found that the house in suit cannot be identified with the one mentioned in these two wills, I am of the opinion that it is unnecessary to go mu this question, because by these two wills Nanak Chard had given his entire property, movable or immovable, to his adopted son, Chander Parkash. He had further mentioned in the will Exhibit D. 5 that in case there was any increase or decrease in his property during his or his wife's lifetime that would also be deemed to be considered as the subject-matter of this will. Therefore, when once it is conceded that this house belonged to Nanak Chand, it follows that it was also the subject-matter of the wilts and Chander Parkash got it under the same. I would, therefore, hold that Chander Parkash got the house in dispute by means of the wills from his adoptive father, Nanak Chand.
8. The next point for decision is whether this house in his hands would be deemed to be ancestral qua the plaintiffs. The contention of the appellant is that the house in suit would be considered to be the self-acquired property of Chander Parkash and he could alienate it in any manner he liked. On the other hand, the contention of the plaintiffs is that even if Chander Parkasn got this house under the will, it would be considered to be their joint Hindu family properly, the gift having been made to the next heir.
Previously, there was divergence of judicial opinion on the point that where a Hindu, instead of allowing his self-acquired or separate property to go by descent, made a gift of it to his son, or bequeathed it to him by will, whether such property was the separate property of the son, or whether it was ancestral in the hands of the sons as regards his (son's) male issue. This matter has, however, been set at rest by a decision of their Lordships at the Supreme Court in C. N. Arunacnaia Mudallar v. C. A. Muruganatha Mudaliar, AIR 1953 S. C. 495 They have held that this question was primarily one ot the intention of the donor or the testator, to be gathered from the terms of the deed of gift or will. If there are no clear words describing the kind of interest intended tc ba given, the Court would have to collect the intention from the language of the document taken along with the surrounding circumstances in accordance with the established canons of construction. The material question in such eases would be whether the grantor really wanted to make a gift of the property to his son or the apparent gift was only an integral part of a scheme to partition the same. There is no presumption that he intended the one or the other.
In the present case, we find that the testator has mentioned thus in the two wills -
(Exhibit D. 5) 'x x x x x He (Chander Parkash) will live with me and my wife as our heir. Immediately on our death, he will straightaway become the sole owner of entire movable and immovable property, subject to the conditions mentioned in para No. 4, and will continue to live in this house.
X X X X X (Exhibit D. 6) x x X If Chander Parkash happens to marry a second wife due to stupidity and incapability of his wile, Smt. Kalawati, to manage household affairs, then at the time of death of Chander Parkash, the male issues of boththe wives or of either of them will succeed to the entire movable and immovable property. In the event of the minority of the male issues his real mother will be the guardian of his person and the second wife of Chander Parkash will be the guardian of the property. In the absence or a male issue, if both the wives are alive, then the second wife will become the owner and the possessor of the entire movable or immovable property, and will be responsible to bear the necessary expenses of Smt. Kalawati during the period she remains the owner and possessor of the said property. * * * * * *'
A reading of the two wills, Exhibits D. 5 and D. 5, which are printed at pages 71 to 75 and 77 to 73, leaves no manner of doubt that Nanak Chand was giving his property to his adopted son, Chander Parkash, as an heir because he wanted to perpetuate his line and was anxious that the property should remain in his family. Nowhere has it been mentioned that the legatee would have the power to dispose it of either by sale or mortgage. As a matter of fact, he has definitely made provisions for hit grandchildren by mentioning that they would succeed to the entire property on the death of Chander Parkash. From this, it is clear that the intention of the testator was that the property should remain in the family and after the death of Chander Parkash, his (the testator's) grandsons should inherit the same. Therefore, the property in suit was the joint Hindu family property of the plaintiffs and defendant No. 1, Chander Parkash.
9. As regards contention No. 2, the admitted facts are that Chander Parkash owned two houses and 150 big has of land. Both these houses were mortgaged with Sunder Lal, D. W. 1. This witness had on 31-10-1952 obtained a mortgage decree against Chander Parkash, who had been directed to pay into Court on or before 31-1-1953 the sum of Rs. 4,498/5/- plus interest till the date of payment. If he had not paid this amount by the prescribed date, the mortgaged property would have been auctioned. The sale in suit was made on 8-12-1952, by which one of the mortgaged houses was sold for Rs. 8,000/-, out of which Rs. 4,523/157- had been left with the vendee tor payment to the mortgagee and the remaining amount of Rs. 3,476717- had been received from the vendee before the Sub-Registrar. In the sale-deed it was mentioned that this amount of Rs. 3,47671/- had been taken by the vendor for private business and effecting improvements on the land.
There is on the record no evidence with regard to these two items of necessity mentioned in the sale-deed, barring, of course, the statement of the vendee himself, in which he had mentioned that the vendor had sold this property for paying his debt, for sinking a well, and for effecting improvements on his land. He further stated that after enquiry he had satisfied himself that the vendor needed the money for the foregoing purposes. On this 'statement alone, it would not be possible to hold that these two items of necessity have been established. The trial Judge also has not discussed these items in his Judgment and has merely referred to the mortgage amount and found it for necessity.
10. Faced with this difficulty, the learned counsel for the appellant submitted that the sale by Chander Parkash had been effected for the benefit of the estate and was an act of good management on his part, becauseif he had not sold one of these mortgaged houses, both of them would have been auctioned since he had not the means to pay of the mortgage money by the prescribed date. These houses would not have fetched their proper price in an auction-sale, and, therefore, Chander Prakash had wisely negotiated the private sale and got a proper price for one of them, with the consideration of which he paid off the mortgage amount as well as got about 3,4767- for meeting his other demands.
Learned counsel for the plaintiff-respondents, on the other hand, submitted that this was not the case set up by the appellant in his written statement and, consequently, no issue was framed thereon. Besides, this sale could not be termed as an act of good management on the part of Chancier Parkash, because he, admittedly, had 150 big has of land and tie could have easily raised some amount by mortgaging with possession a portion of this area and, thus, paid off the mortgage amount, it was also submitted that in para 11 of the written statement, the appellant had stated that defendant No. 1 had no other alternative except to sell the house, under these circumstances, it was for the appellant to prove conclusively that Chander Parkash could not raise the martgage amount in any other way and he was, therefore, compelled to sell the house in suit. It is only under those circumstances that it could be urged that this was an act of good management on his part. There is no evidence on the record to prove this fact and the appellant should, therefore, fail on that ground alone.
11. After weighing both these contentions, I am ot the view that since there was no specific issue on this point, the parties could not lead any evidence. As I have already mentioned above, the question whether the sale in dispute was an act of good management on the part of Chander Parkash and whether it was for the benefit of the estate was raised during the course of arguments only. The main question to be decided in cases of this kind is whether the sale, itself, was for legal necessity, that is to say, was there a necessity for the sale of this house! As held by a Division Bench of the Allahaoau High Court in Murli v. Ghammar, ILR 51 All 61: (AIR1930 All 22(2))
'* * * * * * * Consideration that would be of importance in order to decide whether it was necessary to sell the house in suit in order to raise a sum of Rs. 967/- would be whether the parties concerned had any other property out of which they could meet the necessary expenditure, whether it would not have been possible to raise the sum by mortgage instead of selling the house outright, andmatters of a like nature. * * * * *'
In my view, there is not at present material on the file to enable us to decide this question. In the interest of justice and for the proper decision of this case, I would remit the following issue to the trial Court:
'Was there no way in which the mortgage amount could have been raised by Chander Parkash except by the sale of the house in suit?'
The parties should be given reasonable opportunity to produce evidence on this issue. The finding on the same together with the evidence should be returned within a months from today. Parties have been directed to appear before the trial Court on 4-3-1963.
D.K. Mahajan, J.
12. I agree.