1. The plaintiff is a minor and claims in effect to have a conveyance, Exhibit I, set aside. Exhibit I is dated 20th August 1906. Under it, the plaintiffs' father purported to convey the whole of certain ancestral property to defendants Nos. 2, 3, 4 and 5. At the date of Exhibit I, the plaintiff and the plaintiff's father were jointly interested in the property. The question whether or not Exhibit I is binding upon the plaintiffs share in the property depends upon whether the purpose for which it was executed is a purpose binding upon minor members of the joint family. That purpose was to raise funds for 'the fees and other expenses' for the defence of the plaintiff's father against charges under the Indian Penal Code, Section 232 (counterfeiting the King's coin).
2. Beni Ram v. Man Singh I.L.R. (1911) All. 4 is relied upon for showing that the purpose above referred to is a legal necessity: it is argued that in that case the prosecution ended in a conviction and yet it was held that the expenses for defending the accused member of the family were a legal necessity: in the present case the plaintiffs father was acquitted. Had the plaintiff's father incurred debts for his defence in the criminal proceedings and had the creditors of the father proceeded against this property, then according to the decision in Sumer Singh v. Liladhar I.L.R. (1911) All. 472 the plaintiffs share in the property could have been sold in execution. When the question is as to whether there was legal necessity for a mortgage or sale, the following remarks of the Privy Council in Hanuman Persad's case (1856) 5 M.I.A.393 may have much relevance on the decision. It is obvious that money to be secured on any estate is likely to be obtained upon easier terms than a loan which rests on mere personal security, and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management; the purposes for which a loan is wanted are often future as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and directing the actual application. Their Lordships do not think that a bona fide creditor should suffer when he has acted honestly and with due caution, but is himself deceived.' Their Lordships were dealing with a mortgage but similar principles would apply with the necessary changes to a sale. The principle laid down in Venkataramanayya Pantulu v. Venkataramana Doss Pantulu I.L.R. (1905) Mad. 200 has no bearing on this case. What was considered was the distinction between antecedent debts and debts contracted concurrently with the sale or mortgage that is in question, whereas in the present case it is conceded by the appellants that there was no antecedent debt but the decision (it was argued) depends upon whether there was legal necessity for the sale of ancestral property. The Respondent's learned vakil met this argument by questioning whether the contention that the money was borrowed for a legal necessity was taken in the lower courts and submitted that it should not be permitted to be taken. The sixth paragraph of the plaint and the 3rd paragraph of the written statement of defendants Nos. 2, 3, 4 and 5 refer to this point They are in the following terms:
Para 6 of the plaint. The sale deed mentioned in the plaint was, it appears, executed for meeting the expenses of the criminal case against the 1st defendant. The case against the 1st defendant was one of counterfeiting King's coin. The sale is not legally binding on plaintiff. So much money was not spent and there was no reason for spending so much. The debt is not legally binding on plaintiff. This debt was not contracted for any family necessity nor for discharging antecedent debts.
Para 3 of the written statement of defendants Nos. 2, 3, 4 and 5.The purchase-money Rs. 200 was used for proper expenses of the plaintiff and the 1st defendant. The 1st defendant is not a man of immoral habits. The purchase money was not used for immoral or illegal purposes. Therefore the purchase by these defendants is legal.
3. The issue on these allegations is issue (2) : 'Was the sale deed to defendants 2 to 5 executed and given in the manner alleged by plaintiff? ' It is certainly a most unsatisfactory way of stating the question for decision. The issue should have been framed in such a form as to make it clear on what point the plaintiff wished to attack the sale and the defendants to support it. Questions might have been raised on the pleadings:
(1) Whether the defendants made proper and bona fide enquiries as to there being any necessity for the sale.
(2) If not, (a) whether the purpose for which the sale was effected was such a purpose as would make the alienation legally binding on the plaintiff and (b) whether the consideration for the sale was, as a matter of fact, utilized for the purpose mentioned in the sale-deed
4. I am of opinion these questions arose on the pleadings and it is clear from the issues and from the judgments that these questions have not been considered by the lower Courts. The respondent contends that the appellants cannot now ask for a consideration of these questions as there were no cross-objections to the finding of the lower court that the sale was not binding on the plaintiff a finding which was twice arrived at by the District Munsif, The District Munsif had, however on each occasion dismissed the plaintiff's suit Order 41, Rule 22(2) C.P.C. and the real issues with reference to the validity of the sale-deed have not as yet been adjudicated upon.
5. The question therefore whether the purpose for which the money was borrowed was not a legal necessity should have been considered by the lower Courts. It is a question of law and we have heard arguments upon it. I feel no difficulty in saying that in my own opinion that question should be answered in the affirmative. My learned brother is delivering a separate judgment on this point. I have had the benefit of reading the judgment he has prepared and I agree with it.
6. It is clear from the terms of the sale deed and from the plaint itself that representations were made to the defendants that the sale was for the purpose above referred to. Under these circumstances it seems to me unnecessary to call for any fresh finding. The sale should have been held to be binding on the plaintiff and the appeal will therefore be allowed and the suit dismissed with costs in all the courts.
7. It is clear to my mind that money spent in meeting the necessary expense of defending the head of a joint Hindu family in a criminal prosecution is money spent for legal necessity and for the benefit of the members of that family. For this proposition it is sufficient to refer to Beni Ram v. Man Singh I.L.R. (1911) All. 4 and Suman Singh v. Liladhar I.L.R. (1911) All. 472.
8. The former case is one in which in spite of the defence made at the trial the head of the family was actually convicted. Here the prosecution ended in acquittal. This is therefore a stronger case. In the words of the learned Judges who decided that case, 'No more pressing necessity could arise from the point of view of members of a Hindu family than the necessity for raising money to defend the head of the family against a serious criminal charge'.
9. Respondent's pleader on this point has referred us to Mc Dowell and Co. v. Ragava Chetty I.L.R. (1913) Mad. 71 which was the case of a bond entered into by the head of a Hindu family as security for the due fulfillment of his duties as cashier in which capacity he committed certain defalcations. As pointed out in the judgment, the taking of the misappropriated money was it self, a criminal offence and it was no part of the pious duty of the sons to pay such sums. But every man has a right to defend himself against a criminal prosecution, and it would be the duty of sons to assist him in his efforts to establish his innocence. The facts admitted in the pleadings and found by the lower Courts here are sufficient to prove legal necessity for Exhibit I although the point was not clearly taken at the trial. I therefore agree in thinking that the appeal should be allowed and the suit dismissed with costs throughout.