1. The 1st defendant sold the plaint land for a sum of Rs. 2,000 purporting to act for himself and his minor sons. In the description of the property it was stated that the land had been purchased by the 1st defendant out of his self-earnings and was in his possession and enjoyment. Rs. 100 out of the sale price was paid at the time of the execution of the sale deed. The plaintiff brought this suit for recovery of possession of the suit property and made the 1st defendant and his two minor sons parties to the suit. The District Mun-sif dismissed the suit. On appeal the Subordinate Judge gave the plaintiff a decree that he was entitled to a half share of the suit property and symbolical possession of the same on condition of his depositing Rs. 900 which represented the balance due for the price of half the property. The 2nd defendant had died during the appeal. It was therefore held by the Subordinate Judge that the plaintiff, under Section 43 of the Transfer of Property Act, was entitled to a half share of the property although at the date of sale he was only entitled to the 1st defendant's share which was one-third of the whole.
2. In appeal it is contended that Section 43 is not applicable to this case. The question is whether the 1st defendant represented that he was authorised to transfer the whole property and whether the transferee accepted the sale on that representation. There can be no doubt from Ex. A that the 1st defendant did purport to sell the whole property on behalf of himself and that the recital therein that he has purchased the property out of his self-earnings was in order to make the purchaser believe that he was getting a good title to the property. It is no indication that what was sold was less than the whole property. This is the only point argued in the second appeal for the appellant which, therefore, fails.
3. In the memorandum of objections it is urged that the plaintiff is entitled to get a decree for the whole property if he can show (1) that the sale was for a purpose beneficial to the family to which the minors belong, or (2) if upon a partition the suit land can be allotted to the father's share. Upon this point the learned Subordinate Judge has only considered whether the purpose of the sale as stated by the plaintiff's fourth witness constituted a binding necessity. He has not considered whether the sale of this land which was said to be sold in order to purchase another land could not be for the benefit of the family. If the land that was intended to be purchased was a better land or more convenient for cultivation, it would clearly be for the benefit of the family that the suit land should be sold and another land purchased in place of it. Upon this point the parties have not realised what they have to prove and there is very little evidence on the point. The 3rd defendant who is a minor and is now represented by his mother has not appeared to contest this appeal or the memorandum of objections. We must therefore call for a finding from the Subordinate Judge upon the evidence on record and such other evidence as the parties may adduce whether the sale under Ex, A was an act calculated to benefit the family of the 1st defendant and his sons. The present suit cannot be converted into one for general partition. Upon the alienee bringing a suit for general partition the equity between the parties will have to be worked out, but he will not be entitled to get the; suit property allotted to the share of the 1st defendant unless the 1st defendant's share in a general partition is at least equal in value to the value of the alienated property. The Subordinate Judge will therefore report approximately what is the net value of the whole property of the joint family of defendants 1 and 3. Findings to be returned within one month after the re-opening of the Lower Appellate Court after the summer vacation. 10 days for objections.
4. In compliance with the order contained in the above judgment, the Subordinate Judge of Madura submitted the following
Finding :--Viz., whether the sale under Ex. A was an act calculated to benefit the family of the 1st defendant and his sons and they have called for a report on the point, viz., (2) what is the net value of the whole property of the joint family of defendants 1 and 3.
1. It is stated on the plaintiff's side that the sale was executed by the 1st defendant in order to purchase some other land of superior quality and higher value. The suit lands are said to be waste lands without any source of irrigation and the soil also is said to be saline. The evidence shows that the sale was executed with the idea of purchasing lands of a better quality and of a higher value and the question is whether the sale with that intention but without really purchasing the other lands would benefit the minors. In fact there was no purchase and the minors were not benefited by it. Rut the wording of the issue is whether the sale was an act calculated to benefit the family. It was no doubt calculated to benefit the family and I find the point accordingly.
2. No evidence was let in to show the net value of the properties in the possession of the defendants' family but the evidence shows that the family had 10 or 11 acres and the lands that were not sold are superior in value and larger in extent than the portion sold. There are only two sharers in the family and the portion sold is less than a half and also much inferior in value to the portions unsold. I find this point accordingly.
5. This second appeal and the memorandum of objections coming on for final hearing after the return of the above finding and report the Court delivered the following
6. We accept the finding and the memorandum of objections will be allowed with costs here and in the Lower Appellate Court. There will be only one vakil's fee for both the appeal and for the memorandum of objections. The plaintiff will be given a decree for the suit property on payment of Rs. 1,900 into Court to be paid to defendants 1 and 3 in one month from this date. There will be no interest or mesne profits. If the money is not paid by the time allowed, plaintiff's suit will stand dismissed with costs.