C.M. Lodha, J.
1. Vallabh Das, husband of defendant-appellant No. 1. Smt. Hardevi, and father of other appellants agreed to sell the house in dispute which is situated in Nagaur to the respondent-plaintiffs Ghanshyam and Bhanwari Lal for a sum of Rs. 2000/ and paid apart of the purchase money i.e. Rs. 500/- on 24-1-1961. He also executed an agreement the same day in favour of the plaintiff and promised to execute a sale deed in their favour and get it registered after a week or so. The agreement has been produced in original and is marked Ex. 1 Since Vallabhdas did not execute the sale deed as promised by him, the plaintiffs gave a notice dated 8-2-1961 to Vallabhdas calling upon him to execute the ale deed and get it registered and also receive the payment of Rs. 1500/- being the balance of sale price within three days of the receipt of the notice lest the plaintiffs would be compelled to file a suit against him. Inspite of this notice Vallabhdas did not execute the sale deed and therefore the respondents Ghanshyam and his son Bhanwarilal filed the suit out of which his second appeal arises on 31-5-1961 against Vallabhdas in the Court of Civil Judge, Nagaur praying that a decree for specific performance of the agreement dated 24-1-1961 be passed against the defendant, who may also be directed to hand over possession of the house in question to the plaintiffs. It was also prayed that the plaintiffs may be awarded for use and occupation of the house from 1-2-1961 upto the date of delivery of possession at the rate of Rs. 10/- per month. Vallabh Das filed the written statement on 18-7-1961 and while admitting the execution of the agreement dated 24-1-1961 pleaded that he had agreed to sell the land in question to the plaintiffs on condition that his wife and his minor sons would give their consent to the sale, and since the latter had refused to sell the property, the plaintiffs could not compel him to execute the sale deed. It was also pleaded that there was neither legal necessity for the sale of the house in question nor the proposed sale was also for the benefit of the estate and since the house was admittedly ancestral, he had no authority to sell the house without there being legal necessity and without there being benefit of the estate. Before the suit could proceed to trial Vallabhdas died and present appellants who were his widow and sons and daughters were impleaded as his legal representatives. It may be relevant here to state that originally the plaintiffs had pleaded that the house was ancestral one and Vallabh Das as manager of the joint Hindu family contracted to sell the house in question for legal necessity such as payment of antecedent debts and for meeting the expenses for household and also for doing the business. But subsequently by an application dated 6-7-62 the plaint was amended and in addition to the allegations of legal necessity, it was alleged that the house in question way lying in a dilapidated condition for the last 25 years, but the defendants had not carried out any repairs in it nor looked after it with the result that the residents of the locality used to ease themselves in this house. It was also stated that the house in question had not yielded rent or any other profits to the defendant and consequently the agreement by Vallabhdas to sell this house was for the benefit of the estate and was consequently binding on all the members of the family. The appellants resisted the plaintiffs' suit and pleaded inter alia that the agreement by Vallabhdas was neither for legal necessity nor for the benefit of the estate, and consequently the plaintiffs' suit should be dismissed.
2. After recording the evidence led by the parties the trail court held that neither legal necessity nor benefit of estate for sale of the house in question had been established. Consequently the plaintiffs' suit for specific performance was dismissed, but the defendants were directed to refund Rs. 500/- to the plaintiffs with interest at 12% per annum from the date of agreement till payment. It was further directed that if the defendants failed to pay this amount within one month they would be bound to execute the sale deed in favour of the plaintiffs and get it registered. It may be observed here, in passing, that such a direction for execution of the sale deed in default of payment of Rs. 500/- was altogether illegal, and the Civil Judge was clearly in error in adding such a direction while dismissing the plaintiff's suit for specific performance.
3. Aggrieved by the judgment and decree of the trial court the plaintiffs filed appeal in the Court of District Judge, Merta, who allowed the appeal, set aside the judgment and decree of the trial court and decreed the plaintiff's suit for specific performance of the agreement Ex. 1. Consequently the defendants have come in second appeal to this Court.
4. The short point which arises for decision in this appeal is whether the agreement for sale of the house in question, Ex. 1 entered into by Vallabhdas was either for legal necessity or for the benefit of the estate? The learned District Judge concerned in the finding given by the trial court that the plaintiffs had failed in establishing the legal necessity for the sale of the house but has reversed the finding of the learned Civil Judge on the question of benefit of estate and has held that Vallabh Das had entered into the contract for sale of the house in question for the benefit, of the estate. Learned Counsel for the appellants has urged that conclusion arrived at by the District Judge that the agreement to sell the house was for the benefit of the estate is erroneous, and the plaintiffs' suit should be dismissed. Mr. C.L. Agarwal appearing on behalf of the respondents has however supported the judgment and decree of the District Judge also on the ground that the legal necessity was established and both the lower courts committed error of law in holding that the legal necessity was not proved.
5. I would first take up the question of legal necessity. The burden of proving either that there was legal necessity in fact or that the purchaser had made proper and bonafide enquiry as to the extent of such necessity lay on the plaintiffs. PW. 1 Bhanwari Lal. plaintiff, has stated that at the time of executing the agreement Ex. 1 Vallabhdas had stated he had to repay the debts to his creditors and also wanted money for business. The names of certain creditors - Kanhaiyalal, Mohanlal, Ramdeo, Ramnath. Surajmal, Shiv Prasad and Chunnilal are also alleged to have been disclosed by Vallabhdas to this witness. He also states that on enquiry Daniya had stated to him that this debt was due from Vallabhdas The plaintiffs have also examined P.W. 2 Harakchand, P.W. 3 Likhmi Chand and P.W. 6 Satyanarayan in this connection. P.W. 2 Harakchand stated that Vallabhdas owned a debt of Rs. 539/13/- to him on the basis of Khata of Samwat 20 12-13, and he also produced the copies of the relevant Khatas marked Ex. 4/PW. 2 and Ex. 9/PW. 2 P.W 3. Likhmichand states that there was a debt of Rs. 250/5/6 due to him from Vallbhdas, which he had not realised so far, and he has produced copies of Exs. 10/P.W. 3 and 15/P.W. 3 P.W. 6 Satyanarayan who is sister's husband of the plaintiff Bhanwarilal states that Vallabhdas had told him that he had to pay debts to Kanhaiyalai. MotilaJ, Ramdeo, Ramnath, Surajmal, Shiv Prasad, Chunnilal, Dhanroop etc. and, therefore, he would clear away these debts and do his business also selling the house in question for Rs. 2000/- on the other hand, D.W. 1 Smt. Hardevi, widow of Vallabhdas, has stated that her husband did not owe debt to any body and he used to do business in jaggery and sugar. It is agreed by both the parties that this is all the evidence produced by the parties on the question of legal necessity. On the basis of this evidence the trial court came to the conclusion that the plaintiff had failed to prove that the debts due from Vallabhdas were legal and he also found that the plaintiffs had at the best proved the debts due from Vallabhdas to the tune Rs. 789/- only. For repayment of this amount, it was held by the learned civil Judge, Vallabhdas was not justified in selling the house worth Rs. 2000.-. In this view of the matter the plaintiffs' case regarding legal necessity was negatived by the trial Judge. The first appellate court did not give any finding as to what extent the plaintiffs had succeeded in establishing the legal necessity either for payment of antecedent debts or for other purposes such as business and house hold expenses, but repelled the plaintiff's case for legal necessity on the ground that the debts shown to be outstanding against Vallabhdas were not such that the defendant Vallabhdas was required to sell the house. He also held that there was no evidence on the record to come to the conclusion that any money was required by Vallabhdas for starting any business. From the evidence referred to above it transpires that the plaintiffs had established in proving that the debts to the tune of Rs. 789/- were outstanding against Vallabhdas. There is, however, no satisfactory evidence that any money was required by Vallabhdas doing any business or for meeting the miscellaneous expenditure. The learned Counsel for the respondents submits that the necessity for repayments of debts amounting to Rs. 789/- was itself sufficient to establish the legal necessity in the present case. It was argued that Vallabhdas had no alternative but to sell away the house in question for payment of these debts. On the other hand Shri L.R. Mehta, learned Counsel for the appellants, submitted that even if it be held that Vallabhdas had to liquidate the debts to the extent of Rs. 7891/-, it was only a case of partial necessity, and, it was not at all necessary to sell the house in question which was admittedly worth Rs. 2000/-. It is urged that there is nothing on the record to show that Vallabhdas had no other source for repaying these debts. It is also argued that there were no debts as such but these amounts had remained outstanding only in the course of business transactions.
6. There is no satisfactory evidence on the record produced by either party as to what was the state of business of Vallabhdas and whether he could have liquidated this small debt of Rs. 789/- by any other source. The question, therefore, arises whether the sale of the house in question for Rs. 2000/- was justified for the purpose of raising an amount of Rs. 780/- or so. The observation of the trial court that the debts were not proved to be legal was in my opinion wholly unwarranted and irrelevant. If an antecedent debt is established, it will be presumed to be legal unless it was shown that the debt was tainted with illegality or immorality, and, therefore, that question should not detain me any longer. The difficulty in the way of the plaintiffs however is whether in the facts and circumstances of the present case it can be said that the alienation of the house in question was justified for payment of a debt of about Rs. 800/-. Learned Counsel for the plaintiff-respondents, however, did not bring to my notice any authorities where for the purpose of raising comparatively small amount by way of necessity the transfer of substantial immoveable property belonging to the family for comparatively big amount was held to be justified brawny of legal necessity, I may however draw attention to a Single Bench decision of thus Court Bhura Ram v. Pema 1966 RLWl 492, where the sale of agricultural holding of 10 Bighas for Rs. 5500/- was not held to be for a legal necessity for payment of a debt of Rs. 2750/-. In the present case as is clear from the plaintiffs' own evidence the defendant was carrying on business and it would be not reasonable to suppose that he could not have explored any other source except to sell the house in question for repayment of a business debt of Rs. 800/-. In these circumstances I find it difficult to accept the contention on behalf of the respondents that the sale of the house in question for Rs. 2000/- for repayment of a business debt to the tune of about Rs. 800/- was justified by wav of legal necessity. I, therefore, do not see any justification for reversing the finding of the learned District Judge on the question of legal necessity though I uphold that finding on different grounds.
7. This brings me to the more important question pertaining to benefit of estate. Before coming to the question of law whether an inference of benefit of estate can be drawn in the present case it would be necessary to mention the facts and circumstances which have been established on the record bearing on his question. It has been found by the first appellate court that the house in question was in a dilapidated condition, and was not yielding any rent or profits; and further that there were no apartments worth the name in it. The learned District Judge has also observed that from the evidence put on the record it was proved that it was being used by the people of the locality for answering the call of nature and there by creating a nuisance. It was even admitted by Mst. Hardevi (D.W. 1) that the house had fallen some time in Section 2010 and since then no requires had been made therein. P.W. 1 Bhanwarilal, P.W. 5 Madanlal, P.W. 7 Badri Prasad, and P.W. 8 Jagannath have stated that the house had been lying in this dilapidated condition for the last 20 to 25 years whereas P.W. 1 Mst. Hardevi has stated that it was lying in a dilapidated condition since S. 2010. In addition to these facts the learned District Judge has also found that the financial position of Vallabhdas was not so good that he could have rebuilt this house. These facts found by the learned District Judge are based on evidence and the learned Counsel for the appellants did not doubt less correctly, challenge these findings. But he has vehemently argued that accepting these facts, they did not raise an inference on 'benefit of estate'. It was urged that the plaintiffs had not at all shown as to how Vallabhdas proposed to utilise the amount of Rs. 2000/- which he would get by the sale of this house. He has submitted that the plaintiffs have not led any evidence to show that of the purchase price Rs. 600/-- paid to Vallabh Das was utilised by the latter for any business or any profitable investment or for payment of any debt. In support of his contention learned Counsel relied upon Nirmal Singh v. Satnam 1960 RLW 464 Hemraj v. Nathu Ramu (FB) AIR 1935 Bom. 295 Subrahamnyam v. Subba Rao AIR 1948 PC 95 Sengoda v. Muthuvellappa : AIR1955Mad531 , Balmukand v. Pindi Dass Dudh Nath v. Sat Narain Ram : AIR1966All315 , and Rabi Narayan v. Kanak Prova Debi : AIR1965Cal444 . Before I discuss the authorities cited by the learned Counsel for the appellants, I may observe that the doctrine of benefit of the estate under Hindu Law is not free from difficulty. One view is that the transaction cannot be said for the benefit of the estate unless it is of a defensive character calculated to protect the estate from some threatened danger or destruction. Another view is that for a transaction to be for the benefit of the estate it is sufficient if it is such as a prudent owner or rather a trustee would have carried out with the knowledge that was available to him at the time of transaction. Thus there is a conflict of opinion as to the meaning of the words 'for the benefit of the estate' which occur in the judgment of the Judicial Committee in Hunooman Prasad Panday v. Mussumat Babooee Munraj Koonweree 6 My. I.A. 393. In Nirmal Singh v. Sat nam 1960 RLW 464 Modi J. observed as follows:
A prudent transaction, however, such as the sale of a dilapidated house which is of no use to the family unless it is renovated and such renovation is unnecessary or involves needless outlay of money thereon has been held, and, in my opinion, rightly, as a valid alienation under the doctrine of 'benefit of the estate' though it may not be strictly justifiable on the principle of necessity. In all such cases a degree of prudence would be required and the principle which has prevailed is that the prudence must be of an honest or conscientious trustee. I hold accordingly.
8. In Hemraj v. Nathu (F.B.) AIR 1935 Bom. 295 it was observed that where there was nothing to justify the sale except the fact that the price obtained was greater than that which would normally be obtained in the market and there was no satisfactory evidence as to the manner in which the purchase money was to be dealt with, it cannot be said that a sale of that character and for that purpose was justified. This case related to the validity of sale of immovable property by the guardian of a minor and the question was whether the sale was for necessity or the benefit of the estate? Beaumont C.J. pointed out that the question whether a transaction is for the benefit of an estate or not involves the consideration of something more than merely whether the purchase price paid is a good price; it involves the further question of what is to be done with the purchase money. In that case the purchase money was invested in business, so that the ultimate result of the transaction was that the minor, in place of a piece of land worth Rs. 600/- had an interest costing Rs. 900/- in a business; but it did not appear from evidence whether that interest was worth more than Rs. 600/-. In this connection it was observed that to sell a piece of land at a very good price would not be beneficial if the purchase money was to be invested in an insolvent business. There was nothing on the record to justify the sale except the fact that the price obtained was greater than that which would normally be obtained in the market. In these circumstances it was held that a sale of that character was not justified.
9. In Sengoda V. Muthuvellappa : AIR1955Mad531 it was observed that in the absence of any proof of utilisation of the sale proceeds in the purchase of other property for the family, it must be held that the alienations were not for the benefit of the family.
10. In Balmukand v. Pandi Dass it was found that the manager had sold the land at a rate much higher than the market rate but this fact by itself was not considered as a sufficient ground for granting a decree for specific performance of the contract, in as much as in the absence of any further fact that the money utilised by the sale was needed by the family or was utilised for the purposes of family. It was held that the turning of a stable asset like immoveable property of family into cash cannot be itself be for the benefit of the estate.
11. In Rabi Narayan v. Kanak Prova Debi : AIR1965Cal444 the sale by the guardian of the minor was held to be good and valid as the sale price of barren land was invested in income-yielding culturable lands.
12. In Dudh Nath v. Sat Narain Ram (F.B.) : AIR1966All315 it was observed by the learned Judges that in order to uphold an alienation of a joint Hindu family property by the father or the manager, it is not only necessary to prove that there was legal necessity, but also that the father or the manager acted like a prudent man and did not sacrifice the property for inadequate consideration.
13. In the present case it is not alleged by the defendants that the price of Rs. 2000/- for the house in question was inadequate, nor it is the case of the plaintiffs that the price agreed was much more than the market value of the land in the locality. Some of the cases referred to above in which it was contended that more than the market price has been paid for the immovable property, it was held that this was no ground for holding the same to be for the benefit of the estate, and, therefore, obviously those cases in my view have no bearing on the present case. The question of investing the sale price also does not arise in the present case in as much as the sale has not been complete and the price not paid.
14. After a careful examination of the cases cited by the learned Counsel for the appellants I am of the opinion that none of them is applicable to the facts and circumstances of the present case. The lower court has placed reliance on a single Bench decision of this Court Manmal v. Kalyanmal 1961 RLW 618 In that case a house which had been lying in a dilapidated condition for about two decades and was not yielding any profit for the family was sold by the manager of the family and the sale was held to be for the benefit of the estate. In this case reliance was placed on certain observations in a decision of the Bombay High Court Magnidas Maneklal v. Mahomed Yusuff Mitchelia AIR 1922 Bom. 122. In the Bombay case the Municipalty had issued a notice for pulling down the house as it was in a dilapidated condition and on receipt of this notice the adult members of the joint family agreed to sell the house. It was held that the adult co-pareceners had taken the correct decision indisposing of the house which was in a dilapidated condition, and the minor coparceners were bound by the agreement. Whether a transaction is beneficial to the estate, in my opinion, must depend upon the facts and circumstances of each particular case, and it is futile to match one case with another. In the present case as already observed above the house had been lying in a dilapidated condition at least fore more than a decade and no steps had been taken to renovate it or to make it otherwise productive. It is also further clear from the record that it had become a source of nuisance as the persons of the locality-were using it for answering the call of nature. It is also reasonably clear from the record that Vallabhdas was not in such a financial condition that he could have rebuilt the house and make it an income-yielding one. Learned Counsel for the appellants argued that the house was allowed to remain in a dilapidated condition as Vallabhdas may have desired to sell it later on when the price of land in Nagour may have still soared up. The argument is indeed ingenious but there is no foundation for the same. On the other hand Smt. Hardevi has stated that she may have required this house as she had a number of children to some of whom this house may have been given at the time of partition. In the trial court as well as in the appellate court it was also urged on behalf of the defendants that Vallabhdas was given to gambling and was a waster and therefore he may have entered into this transaction for the sale of his house but this part of the defendant's case has not been relied before me and I think rightly so because the evidence on the point is so meager that no reliance can be placed on this part of the defendants' case. Thus there is no escape from the conclusion that Vallabhdas did not enter into this agreement on account of any vicious habits or with a view to squander away the money. The house had been lying to a dilapidated condition at least for more than a decade if not more and bad not been yielding any income. It also cannot be denied that Vallabhdas never thought of nor could he, due to his financial position, think of rebuilding it so as to make it productive or to use it for himself. In this background it cannot be said that the dilapidated house was a stable asset, which was yielding an income to the family or was likely to yield any income in future. If in these circumstances Vallabhdas agreed to sell away the property in question it cannot be said that he acted in an imprudent or a dishonest or unconscientious manner, nor can it be said that the transaction was not a prudent one.
15. Taking an over all view of the case I do not see any substantial reason for reversing the judgment and decree passed by the first appellate court and dismiss the appeal. But in the circumstances of the case I leave the parties to bear their own costs of this Court.
16. Learned Counsel for the appellants pray for grant of leave to appeal to Division Bench, but I do not consider it a fit case for grant of leave. Hence the prayer is disallowed.