1. This judgment will dispose of R. S. As. Nos. 1356 and 1520 of 1969.
2. Udey Chand had made the following four sales:--
1. On 24-9-1956 for Rs.1,500/- in respect of land measuring 13 Kanals 1 Marla in favour of Jawala Singh Ajmer Singh and Jagrup Singh, defendants Nos. 2 to 4.
2. On 16-2-1958 for Rs.3,000/- in respect of and measuring 60 Kanals 5 Marlas in favour of Gopal Singh defendant No.5.Vide sale-deed Exhibit D-3.
3. On 6-2-1962 for Rs.500/- in respect of land measuring 10 Kanals 6 Marlas in favour of Manohar Lal defendant No.6 vide sale-deed Exhibit D-2.
4. On 10-7-1967 for Rs.16,000/- in respect of 32 Kanals in favour of Jawala Singh Ajmer Singh and Jagrup Singh defendants Nos.2 to 4 vide sale-deed Exhibit D-8.
These sales were challenged by Lachhman Das respondent who was the son of Udey chand on the ground that the property sold formed part of the property belonging to the Hindu coparcenary and the sale being for no valid necessity was not binding on Lachhman Das, who was entitled to receive possession of this property.
3. Regarding sale of land measuring 13 Kanals 1 Marla made on September 24, 1956, in favour of Jawala Singh, Ajmer Singh and Jagrup Singh, the learned Lower Appellate Court has held that though the land belonged to the Hindu coparcenery, yet the alienees had failed to prove necessity for this sale. In the sale deed Exhibit D-6, it was recited that the vendor needed this money for purchasing some other land. The learned Lower Appellate Court observed that the vendees failed to make an enquiry whether the statement made by the vendor was bona fide or not. It also observed that if Udey Chand wanted to sell land belonging to the corparcenary, it was incumbent upon him to get the consent of Lachhman Das, A Hindu father acting as the Karta of the family does not have to seek the consent of his sons for making alienations of joint property for necessary purposes. Again, it is not necessary for the alienee to conclusively establish that the necessity recited in the sale-deed was established. In Smt. Rani v. Smt. Santa Bala Debnath, AIR 1971 SC 1028, it was held that the onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to its existence. The recital made in the deed was merely a representation and if the same does not turn out to be true it would be proper for the Courts to draw an inference that the alienee did not make any proper enquiry about the existence of the necessity but this does not mean that he cannot adduce other evidence of necessity. In the instant case, the alienees placed on record a copy of the ledger account (Exhibit D. 9) of loans advanced by the Revenue Department to the land-owners, which shows that Udey Chand had been advanced Taccavi loan of Rs.2000/- which he paid back on October 14,1956 i.e. about 20 days after making the sale in dispute. In this view of the matter, it cannot be said that there was no necessity for this sale. The learned counsel for Lachhman Dass respondent has relied upon Ram Parkash v. Radhe Shyam, AIR 1963 Punj 338,in which it has been held that necessity for the alienation itself should be shown by the alienee. There is no quarrel with this proposition but once an alienee places on record evidence from which an inference of legal necessity can be raised then the burden shifts on those who challenge the alienation to show that in fact there was no necessity for the sale. The peculiar facts of this case are that Lachhman Das did not produce Udey Chand, his own father, as his witness. Consequently, an inference can be drawn against him that if Udey Chand had been cited as a witness he would have deposed about the existence of legal necessity. I therefore, hold that the sale dated September 24,1956, for a sum of Rs.1,500/- in favour of Jawala Singh, Ajmer Singh and Jagrup Singh has been proved to be for necessity and to that extent the judgment of the learned Lower Appellate Court is set aside.
4. The second sale which needs some detailed consideration is the one made on July 10,1967,for a sum of Rs,16,000/- of land measuring 32 Kanals in favour of the same alienees. The recital in the sale deed Exhibit D-8 again mentions that Udey Chand needed this money for purchasing some other land. This sale, in my opinion, has been rightly held to be for no valid necessity by the learned Lower Appellate Court. Apart from this bald assertion in the sale deed, the alienees did not lead any cogent evidence for showing that either they made bona fide enquiries or actual necessity for this sale, in fact, existed. The learned Counsel for the appellants has, however, submitted that in a case like this, the sale was at least binding against Udey Chand and should have been upheld t the extent of his interest in lane. Reliance in this behalf has been placed on para 261 of Mulla's Hindu Law (1970 Edition),in which it has been mentioned that according to Mitakshara law as applied in Bombay, Madras and Madhya Pradesh a coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties.
5. On behalf of Lachhman Das respondent, Shri G. R. Majithia has submitted that position of law in the northern parts of India is different. According to him in Punjab a coparcener is not entitled to sell his undivided interest in the coparcenery property without the consent of the other coparceners or for legal necessity. In support of this view, reliance has been placed on Choranji Lal v. Kartar Singh, AIR 1925 Lah 130.In that case the Joint Hindu family consisted of two brothers. The elder brother acting for himself and on behalf on his minor brother sold the property. The minor brother brought a suit for possession of the property on the ground that the sale made by the elder brother was absolutely void. Before the High Court, it was urged that a decree should be so framed as to bind the interest of the elder brother in the joint property. Campbell, J., observed as under:--
'In view of Lord Haldane's observations, I am not prepared to make a decree in the form adopted in Dharam Chan v. Karam Devi, 1893 Pun Re 6.I accept the appeal and restore the decree of the first Court for possession of the whole land in dispute with the declaration added that this decree shall not affect any remedy which Kartar Singh may be able to enforce hereafter against Sri Ram. The appellant will have his costs throughout.'
In Ralla Ram v. Atma Ram, AIR 1933 Lah 343, it was held that in Punjab it was not open to a coparcener to alienate his undivided share in joint property without the consent of other coparceners and if he did do so, the alienation was likely to be set aside as a whole. In this case also the joint family consisted of two brothers and the alienation was made by the elder brother who purported to make it on his own behalf and on behalf of his brother. A perusal of these authorities would show that a brother as a coparcener was not held to be entitled to sell joint family property without the consent of his brothers who were members of the coparcenery. The position of a Hindu father is entirely different. It is no doubt true that in Punjab a son cannot claim partition but nothing can stop a Hindu father from making a partition of the coparcenary property by allotting a share to himself and shares to other members of the coparcenary. He as the Karta of the family has much greater powers of alienation of the joint family property for valid necessity. I am of the view that the rule laid down in Ralla Ram's case AIR 1933 Lah 343(supra) and Choranji Lal's case AIR 1925 Lah 130(supra) does not apply to those cases in which alienation is made by the father. This consideration apart, in Balmukund v. Kamla Wati, AIR 1964 SC 1385, the Court was concerned with a case in which the Manager of the Joint Hindu Family belonging to Punjab entered into an agreement for the sale of immovable property on behalf of the family. A decree for specific performance of this agreement was declined on the ground that the transaction could not be regarded as one for the benefit of the family and yet the Manager was held to be bound by the contract of sale. The material portion of the judgment reads as under:--
'No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus:
'Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.' However, in the case before us there is no claim no behalf of the plaintiff that he is willing to pay the entire consideration for obtaining a decree against the interest of Pindidas alone in the property.'
In this case, however, Shri K. C. Puri, the learned Counsel for the appellants, submits that he would be satisfied if the suit of Lachhman Das qua the property belonging to the share of Uday Chand is dismissed. In this situation, decree for possession of the entire property covered by this sale deed cannot be passed in favour of Lachhman Das. Since the coparcenery consists of only tow members, namely Shri Udey Chand and Sh. Lachhman Das, both of them were entitled to half the share of the property sold. I, therefore, accept the claim of the appellants to the extent of half the property which would have fallen to the share of Uday Chand on partition and hold that the sale in dispute will not bind Lachhman Das respondent to the extent of the half share of the land sold. This judgment and the decree of the learned lower appellate Court are also modified to the extent indicated above.
6. Regarding the sale of land measuring 60 Kanals 5 Marlas for a sum of Rs. 3000/- made on December 16, 1958,in favour of Gopal Singh, the learned lower appellate Court has held that this amount was really needed by Udey Chand vendor for the marriage of his grand-daughter and so the sale was for valid necessity. This is a finding of fact and not open to challenge in second appeal. Similarly, the sale of land measuring 10 Kanals 6 Marlas for a sum of Rs. 500/- made on February 6, 1962, in favour of Manohar Lal was held to have been made by Udey Chand for making repairs of his residential house which is also a necessary purpose. This is also a finding of fact and binding on me in second appeal. Consequently, the last mentioned two sales are upheld to be for valid necessity and to that extent the judgment and the decree of the learned lower appellate Court are upheld.
7. On an oral request made by Mr. Majithia, the learned counsel for Lachhman Das respondent, I certify that the decision given in R. S. A.No.1356 of 1969 is fit for appeal under Clause X of the Letters Patent.
8. Appeal allowed in part.