Anantakrishna Aiyar, J.
1. The plaintiffs, who are the daughters of the late Krishnayya, instituted the original suit for a declaration that the alienations made by his widow (3rd defendant) in favour of two sets of defendants, vis., defendants 1 & 2 on the one hand and the 6th defendant on the other, would not be binding on the reversioners after the death of the 3rd defendant. The alienees put in separate written statements supporting their alienations. There was also another question raised whether the 5th defendant was not adopted by the widow and whether the said adoption was valid. The Trial Court found against the adoption. The Trial Court also found against the validity of the alienation under Ex. VI in favour of the 6th defendant; but it found that the alienation in favour of defendants 1 and 2 under Ex. IX, dated 7th May, 1917, was valid and binding, and it accordingly dismissed the plaintiffs' suit against defendants 1 and 2. On appeal by the plaintiffs, the learned Subordinate Judge of Guntur analysed the evidence relating to the various debts which were bet up as debts binding upon the estate and discharged by the vendee under Ex. IX. The Lower Appellate Court in paragraph 11 of its judgment set out the several details making up the debt of Rs. 1,774-8-0 mentioned in Ex. IX. The learned Subordinate Judge came to the conclusion that out of that amount only Rs. 673-3-7 was shown to be binding on the estate. He, therefore, came to the conclusion that in the case before him the sale ought to be set aside but that a' charge should be . created in favour of the vendees for the portion of the consideration found to be binding, when the reversion opened. He accordingly passed a decree substantially to that effect. The alienees, defendants 1 and 2, have preferred this Second Appeal.
2. Their case was argued elaborately by the learned advocate who appeared for them. He took me through various items of prior debts and submitted that the Subordinate Judge was wrong in disallowing as many as five items which, he submitted, should have been allowed in favour of the alienees. After having carefully gone through the facts as found on the evidence discussed by the Lower Appellate Court with reference to these items, I have come to the conclusion that the appellants' contention should be upheld with reference to two such items. The first-item relates to a sum of Rs. 62-7-11 dealt with in paragraph 15 at page 5 of the appellate judgment. There was a promissory note executed by the deceased Krishnayya in favour of K. Venkatappayya. That debt was renewed by the widow, and the same was paid off when Ex. IX was executed. The endorsements on the back of the old promissory notes make this point clear, and I think that the Subordinate judge was not right in disallowing this sum of Rs. 62-7-11. Similarly with reference to a sum of Rs. 70-15-0 discussed in paragraph 21 at page 7, the learned Subordinate Judge did not notice the importance of the endorsements appearing on the back of the prior promissory note executed by the widow's husband. The prior promissory note is Ex. XVI (c-1) and that debt was discharged by Ex. XVI (c). Ex. XVI (c) itself was discharged at the time of Ex. XVI (a), and Ex. XVI (a) was discharged at the time of the sale to the appellants under Ex. IX. The creditor was the same person, and the endorsement appearing on the back of Ex. XVI (c-1) makes it abundantly clear that that debt was paid off when money was borrowed tinder Ex. XVI (c). The learned Subordinate Judge was not right in disallowing this sum of Rs. 70-15-0.
3. Three other items were discussed before me, viz., those covered by points 4, 5 and 6 discussed in paragraph 21 of the Lower Appellate Court's judgment. The learned Judge in one instance says that the witness who speaks in support of the debt is interested; in another instance, the debt is alleged to have been borrowed in connection with the annual ceremonies of Krishnayya; whereas the date of the debt is very much earlier than the date of the annual ceremony; and as regards the payment of kist, it has not been proved that without raising the debt the kist could not be paid. The learned Judge thought it unsafe to rely upon the oral evidence relating to these debts, and I must uphold his finding on the three particular debts mentioned in paragraph 21, sub-headings 4, 5 and 6. The result, then, is that instead of Rs. 673-3-7 held to be binding by the Subordinate Judge, I have to add a sum of Rs. 133-6-11, thus bringing the amount of binding debt to Rs. 806-10-6? The balance of Rs. 967-13-6 is not proved to be binding. We have therefore a case where, out of the price of Rs. 1,774-8-0, only Rs. 806-1CM6 is proved to be binding and a major portion, Rs. 967-13-6, is not binding. What then is the legal effect to be given to the sale in view of these findings? The deceased left a house site and some cultivable lands. Ex. IX purported to convey 1 acre 75 cents of land. The Lower Appellate Court discussed the question whether there was necessity for this sale, and it observed in paragraph 25 as follows:
But in the circumstances there was no necessity to have sold the whole land. Once she had sold some 60 cents for Rs. 600. Some extent like that could have been sold again for payment of debts. . As the major portion of the consideration was held not to be for binding purposes, I am inclined to hold that the sale cannot be upheld and is not binding on the reversioners.
4. The learned advocate for the appellants drew my attention to the recent Privy Council case, Krishn Das v. Nathu Ram and another Niamat Rai v. Din Dayal (1927) L.R. 54 IndAp 211 : I.L.R. 8 L. 597 : 52 M.L.J. 729 (P.C.) and a still more repent case Suraj Bhan Singh v. Sah Chain Sukh (1927) 53 M.L.J. 300 (P.C.); and he argued that the sale should be upheld even though the alienees have not been able to explain what was done with the major portion of the consideration, as already noticed by me. I am not able to understand the Privy Council judgments in the way in which the learned advocate wants me to understand the same. The Privy Council laid down that in cases where a sale is upheld the alienee: is no more bound to look to the, application of any small amount that might have been fetched by the sale over and above the actual debt which is binding upon the estate. The question whether there was an occasion for the sale, and whether the sale was justified or not, was not the question that their Lordships had to consider; and, as I remarked, the case before them was a case where the sale was binding, but the only question was what was to be done with reference to the small excess amount that remained after the binding debt was discharged The case before me is a case where the Courts have to find whether there was necessity for the sale or not. Having regard to the finding that there was no occasion to convert this immoveable property into money with reference to a major portion of the transaction, I think the Lower Appellate Court was flight in coming to the conclusion that the sale as such of the land of 1 acre 75 cents was not justified. The learned advocate, however, argues that even in that view it does not follow that the alienees are not entitled to get any portion of the property and that all that they are entitled to claim is a charge with reference to that portion of the purchase money which the Court finds to be binding on the estate. He argues that the nature of the land and the other circumstances in the case should be considered by the Court before the Court in such a case could work out the equities between the parties. On the other hand the learned advocate for the respondents drew my attention to a decision of Sadasiva Aiyar and Napier, JJ., in Rukmani Sundarammal v. Muthu Ammal (1915) M.W.N. 8, where a sale by a minor's guardian of 4 acres of dry land and 4 acres of wet land for a sum of Rs. 1,425 was sought to be impeached by the minor. The Lower Appellate Court found that Rs. 650 out of the price of Rs. 1,425 was binding on the estate and held that the vendees should be allotted a proportionate extent of the land originally intended to be conveyed to them in the ratio of the consideration found by the Courts to be binding. The learned Judges disapproved of that course and held that the plaintiff was entitled in that case to recover the whole of the land alienated, and they gave a decree for a charge on the property in favour of the vendee for the amount found binding. The question how equities have to be worked out in any particular case would depend on the facts and circumstances of each case. In the particular case before me, having regard to the fact that under Ex. IX (a), the agreement that preceded the sale--Ex. IX--there is a statement that the sale was to be at the rate of Rs. 1,050 per acre, I think that the question should be further considered as to the exact relief that Should be granted in this case. It is also said that 60 cents were sold by the widow for Rs. 600. The question had not to be considered by the trial Court in the view that it took of the case, namely, that the whole of the consideration mentioned in the sale was utilised for binding purposes. It is only when the Lower Appellate Court disallowed the contention of the alienees as regards a portion of the sale price that this question arose for decision. I think that the Lower Appellate Court's discussion of this question in the last few lines of page 25 is not altogether satisfactory in the circumstances. The learned advocates are not now in a position to state what the: nature of the evidence is and whether there is any other matter on the record relevant to this point. It, therefore, seems to me that I should call for a finding from the Lower Appellate Court on the question whether, on the finding that only Rs. 806-10-6 is binding upon the estate, the present is a case where the alienees should or should not be allotted, in the circumstances, a proportionate extent of the lands agreed to be conveyed under Ex. IX (a). I am anxious to be placed in possession of all relevant circumstances appearing in the evidence in this case with a view to my finally resolving how to work out the equities of the parties in this particular case. The Lower Appellate Court will accordingly be directed to submit a finding, on the evidence on record, on the question whether the present is a case where the alienees should or should not be awarded any, and if so, what proportion of the lands covered by the sale-deed, having regard to my finding that Rs. 806-10-6 is binding on the estate. Finding in six weeks, and objections in ten days.
5. In compliance with the order contained in the above judgment, the Subordinate Judge of Guntur submitted the following
Finding.--I am directed by the High Court to submit my finding on the evidence on record on the question whether the present case is one where the alienees should or should not be awarded any, and if so, what proportion of the lands covered by the sale-deed, Ex. IX, having regard to the finding that Rs. 806-10-6 is binding on the estate.
2. I am directed to state-
(i) Whether the defendants 1 and 2 are entitled to a proportion of the property sold by Ex. IX, or only a charge;
(ii) If they are entitled to a portion of Ex. IX land, what proportion are they entitled to?
We have, therefore, to consider:
(i) Whether a sale was absolutely necessary under the circumstances of the present case.
(ii) Whether a sale of a portion of the property could be decreed in this case.
3. The Privy Council decided in Girdharee Lall v. Kantoo Loll (1874) L.R. 1 IndAp 321 referred to in 52 M.L.J. 724:
Where a father has sold ancestral property for the discharge of his debts, if the application of the bulk of the proceeds is accounted for, the fact that a small part is not accounted for will not invalidate the sale.Explaining this decision, their Lordships of the Privy Council observed in Krishn Das v. Nathu Ram :
While this is in itself a correct statement of the law so far as it goes, ii does not by any means follow, as the learned High Court Judges seem to have thought, that it is a complete statement of the law or that the sale will be invalidated wherever the part of the consideration not accounted for cannot be described as small...The learned Judges seem to have lost sight of the true question which falls to be answered in such cases, vis., whether the sale itself was one which was justified by legal necessity.It is, therefore, clear that a sale by a Hindu widow would Be upheld:
(i) if the vendee paid a fair price for the property;
(ii) (a) whether a sale was necessary, and whether in the case of the sale in question there was legal necessity;
(b) whether the vendee acted bona fide, i.e., honestly and with due caution.
4. My predecessor found in paragraph 25 of his judgment that the price paid for the sale was adequate, The correctness of this finding was not questioned before me. I, therefore, hold that the defendants 1 and 2 paid a fair price for the property under Ex. IX.
5. The learned District Munsif found in paragraphs 19 to 22 of his judgment that the income from the estate in the hands of the 3rd defendant was insufficient for the maintenance of her family, that she had other expenses to meet, and that she was justified in incurring debts. That she was. justified in incurring debts to the extent of Rs. 806-10-6 cannot now be disputed. By the date of Ex. IX, the 3rd defendant was in possession of the land sold and a house site (Ex. VI--property). The site, it is said, is worth about Rs. 500. It is true that it was found that Ex. VI sale was unsupported by consideration; but it is not contended that the property was worth more than Rs. 500. We may, therefore, take it that it was worth about Rs. 500. A sale of the site only would not have discharged the whole debt. It is clear that it was advantageous to sell the land and retain the site. The correctness of the observation of my predecessor 'there can be no doubt that 1 and 2 defendants contention that the 3rd defendant had no other means of paying off the debts is proved' was not questioned--so far as. her husband's properties were concerned--at the time of the arguments. She is not bound to apply her own properties for the discharge of the debts chargeable on the estate. There was legal necessity for the sale to the extent of Rs. 806-10-6. D.W. 9 wrote Ex. .IX-.a. He deposed that the 2nd plaintiff's brother, N. Venkatasubbayya, settled the terms of the sale and attested the deed. N. Venkatasubbayya attested Ex. IX-a also. The witness pays an income-tax of Rs. 138. It is, therefore, clear that nothing was done under the rose. D.W. 13 is a creditor. He attested Exs. IX-a and IX. He said that the whole land sold yielded 9 or 10 salakas per year and the makta was 6 salakas. He added referring to the makta, 'which, if adjusted towards the debt, she could not get on for the last 30 years till 1916.' The deed was executed by the mother of the plaintiffs, as their. guardian. D.W. 13 deposed 'The portion left after sale to the defendants was sold to E. Krishnayya (60 cents not included in the suit).' It is clear that 60 cents of the land was sold by her and the plaintiffs did not question that alienation. This shows that the land had to be sold then. The 3rd defendant had to discharge debts to a large extent and everybody knew that a sale of the estate was the only means of wiping off the debts. If they were not discharged they would grow. For all these reasons I hold that a sale in this case was necessary and that the defendants 1 and 2 acted bona fide and with caution. There was legal necessity for the sale to the extent of Rs. 806 and odd. It cannot be said that the part of the consideration not accounted for in the present case is small. Even if it is considered small, the circumstances of the case show that a sale was necessary. The proportion can easily be determined because the price per acre is given in Ex. IX-a as Rs. 1,050.
6. For all the reasons given supra, I find that the defendants 1 and 2 are entitled to a proportion of the property sold. And that proportion is 79,247|507 cents (or roughly 79 1/2 cents).
6. This second appeal coming on for final hearing after the return of the finding of the Lower Appellate Court, the Court delivered the following
7. In this case I called for a finding on two questions (1) whether the defendants 1 and 2 are entitled to a proportion of the property sold under Ex. IX, or only to a charge on the same for the amount found due, and (2) if they are entitled to a portion of the land covered by Ex. IX, what proportion they are entitled to. The learned Subordinate Judge has returned findings to the effect that the defendants 1 and 2 are entitled to a portion of the property Sold having regard to the circumstances mentioned by him and that the proportion is 79 1/2 cents out of 1 acre 75 cents.
8. The question has been argued before me whether in such cases the proper course is not to declare the sale to be not binding on the reversioner, giving only a charge in favour of the purchaser to the extent of the purchase money found to be binding on the estate. The question as to how the equities should be worked out in any particular case would largely depend on the facts and circumstances existing in that case. No doubt a sort of working rule has been laid down in several decisions of this Court to the effect that when consideration to the extent of about, or more than, a moiety of the price is held to be binding on the estate, then the sale, as such, . should be upheld, but the purchaser should be directed to pay to the ultimate reversioner the difference between the sale price and the amount found to be binding on the estate. The exact effect of the Privy Council rulings recently given on the direction as to refund of a portion of the price to the reversioner may have to be considered in cases where the question arises. In the present case, however, I have found, that out of the consideration of Rs. 1,774-8-0, a sum of Rs. 806-10-6 only should be taken to be binding on the estate. But the amount that I have held to be binding upon the estate is substantially less than a moiety of the price. That being so, the question arises as to how the equities between the parties should be worked out in the present case. It is in evidence in this case that an extent of 60 cents had been sold by the widow for Rs. 600; and it also appears that under the very agreement which gave rise to the sale in question (Ex. IX-a) the price is fixed by the parties at Rs. 1,050 per acre. In these circumstances, I called upon the Lower Appellate Court to submit findings on the two points already mentioned by me, and I have already noted the findings submitted by the learned Subordinate judge. It was argued by Mr. Somayya, the learned Advocate for the respondent, that in such circumstances the sale should not be upheld in respect of any portion of the property sold; and he contended that the decision in Rukmani Sundarammal v. Muthu Ammal (1915) M.W.N. 8 is clear that the purchaser would be entitled only to a charge on the property in respect of Rs. 806-10-6. On reading the decision referred to by the learned advocate, I find that Sadasiva Aiyar, J., does not discuss this question. I find that Napier, J., refers to this point at page 12 of the report. As I read the judgment of the learned Judge, he does not purport to lay down any general proposition of law applicable to such cases. On the other hand, the learned Judge speaks of equities arising in such cases. The exact nature of the agreement which led to the sale is not clear in that case. I think it is open to the Courts, in case the facts and circumstances warrant, to uphold a sale in part. In the present case, I have got Ex. IX-a which evidences the agreement in pursuance of which the property was sold. The agreement is clear that the basis on which the parties contracted was that the property was to be sold at Rs. 1,050 per acre. As I said, we have got also evidence in the case, which the learned Subordinate Judge has referred to, that 60 cents were sold for Rs. 600. The learned Subordinate Judge has come to the conclusion that there is no difficulty as regards apportioning the land which was the subject of sale in the present case. I am, therefore, led to the conclusion that the parties in the present case bargained for the sale and purchase of the land at Rs. 1,050 per acre, and as it was alleged that there was necessity to the extent of Rs. 1,774-8-0, the plot of 1 acre and 75 cents was made the subject of the bargain. Now that I have found that the consideration binding upon the estate is only Rs. 806-10-6, I think, having regard to the facts of the present case, that I am not making a fresh contract between the parties by decreeing that the defendants 1 and 2 should have 79% cents out of 1 acre 75 cents covered by Ex. IX. On this question of working out equities, I think that the Full Bench decision in Baluswami Aiyar v. Lakshmana Aiyar I.L.R. (1921) M. 605 : 41 M.L.J. 129 affords me some guidance. There the managing member of a joint Hindu family, for purposes not binding upon the other co-parceners and without their concurrence, agreed to sell a specific item of joint family property. The Full Bench held that the purchaser in such a case could not enforce specific performance of the entire contract, but that in case the purchaser should elect to have the (vendor's) manager's share of the property for the whole of the consideration stipulated, then it would be open to the Court to grant specific performance in respect of the said share only as indicated above. I think that the decision of the Full Bench in Baluswami Aiyar v. Lakshmana Aiyar I.L.R. (1921) M. 605 : 41 M.L.J. 129 lends support to the view that I am inclined to take in this case. Having regard to the facts and circumstances appearing in the present case and having regard to the inference that I draw from the agreement Ex. IX-a and the sale-deed Ex. IX, and in the light of the special circumstances found by the Lower Appellate Court, I think that the proper decree that I should pass in the present case is that the ultimate reversioners to the estate of the 3rd defendant would be entitled to recover 1 acre 75 cents covered by Ex. IX less 79 1/2 cents (to be selected and separated by the Court if the parties interested be not then able to agree) to which I think the vendees should be held entitled in the circumstances. Of course, it goes without saying that the whole of the price paid by them, viz., Rs. 1,774 and odd, should be taken to be the price of 79 1/2 cents, so that no question of any refund by the ultimate reversioners in favour of defendants 1 and 2 or vice versa would arise. The decree of the Lower Appellate Court will be modified accordingly.
9. The Lower Court had directed that each party should bear his own costs in the two Lower Courts. I think I should also pass the same order as regards the costs of this second appeal.