1. The appellants sued for recovery of the properties covered by B schedule to the plaint on a claim that the sale thereof by their mother on 25th June 1943, was not for necessity of for the benefit of the estate and, therefore, not binding on them. The suit was resisted by defendants 1 to 3 (respondents 1 to 3) of whom the, first is the son of Krishnayya Naidu in whose favour the sale was executed, the second and the third are his wife and undivided brother respectively, asserting that the sale was supported by necessity and was beneficial to the estate and that the suit was also barred by limitation. The Court below accepted the defence on those points and dismissed the suit. The fourth respondent who is a brother of the appellants was impleaded as a defendant as according to them he would not co-operate with them.
2. The main point argued before us on behalf of the appellants is whether the sale in favour of Krishnayya Naidu was supported by necessity or it was for the benefit of the Estate. Chengalvaraya Naidu, the father of the appellants, had executed a usufructuary mortgage on 26th May 1941, over the said properties securing repayment of a sum of Rs. 3000. The sale effected in favour of Krishnayya Naidu by the mother as guardian of the appellants and the fourth respondent, who were then minors, was for a sum of Rs. 4500 out of which Rs. 3150 went in discharge of the earlier usufructuary mortgage, Rs. 350 was received by the vendor for the purpose of paying the plaintiffs' maternal grand-father in consideration of his having discharged two decrees for that total sum which had been obtained against Chengalvaraya Naidu before his death and another sum of Rs. 150 was applied in discharge of a mortgage dated 11th February 1942, executed by the appellants' mother over her own property.
For the balance of the purchase money, namely, Rs. 1000, Krishnayya Naidu executed a promissory note. It is stated that a suit was instituted for recovery of this sum due under the promissory note, but, for the purpose of the present appeal we are not concerned with the details of that suit or its result. The usufructuary, mortgage provided a period of ten years for redemption. Though the bulk of the sale consideration went in discharge of the antecedent debts of Chengalvaraya Naidu, it is contended that having regard to the fact that there was no pressure upon the estate and there was no benefit to the estate the sale could not be supported as binding on the appellants. In support of this contention, learned counsel for the appellants relied on Pandharinath v. Ramachandra, : AIR1931Bom157 and Bansilal v. Shivlal, : AIR1953Bom361 .
3. It is well established that the power of a manager of a Hindu joint family or a guardian of minors, under the Hindu law, to sell or charge a property belonging to a co-parcenary or the minors is a limited and qualified one. Such a parson can properly exercise his power only in a case of necessity or for the benefit of the estate. In considering that question the pressure on the estate, the danger to be averted or the benefit to be conferred upon the estate should of course be taken, into account. We do not think it necessary to refer to, authorities in support of these propositions. The question, however, is whether where a father who is a coparcener executed a usufructuary mortgage to secure a debt of his, his widow and guardian of his minor sons can notwithstanding a stipulation in, the deed that the mortgage was redeemable after a specified period could properly sell the charged property for discharging that mortgage even before expiry of that period. In such a case, no doubt there could possibly have been no demand from the creditor to pay the debt and in that sense there could also have been no pressure upon the estate. But can it be said that the circumstance in itself is conclusive on the question of necessity?
The Bombay High Court in : AIR1931Bom157 , was apparently inclined to the view that in such a case unless it was shown that there was actual pressure, the mere fact that the sale was for the purpose of discharging an antecedent debt would not make it binding on the minors. To the same effect is : AIR1953Bom361 , in which the mortgage provided a period of two years for redemption but the sale of the property was before expiry of that period. It was held that the sale could not be justified because there was no pressure upon the vendor for repayment of the debt. It does not appear from the reports of these two cases whether or not there were other assets or means for payment of the debt. In our opinion whether in such a case the sale could be held to be for necessity would depend upon not merely whether there was pressure on the estate but whether there were other circumstances present which showed that though there was no immediate pressure for repayment there were no other means or way of paying off the antecedent debt. We think also that in such circumstances it is not necessary for the sale to be binding that the purchaser should show that there was no alternative for the vendor but perforce to sell the property. Even that extreme test appears to be satisfied in the present case.
4. It is in evidence that the family of the appellant was possessed of no other property and that they had no means of livelihood or other source of income from which they could possibly discharge the debts. It is true that the appellants had yet a long period to redeem the mortgage. Even so, there was no ostensible way of paying off the debt even after expiry ,of the specified period. As a matter of fact even now, long after that period, they have sued in forma pauperis and in the plaint they have described themselves as coolies. The mortgage covered so large a sum of Rs. 3000.
In the circumstances we are inclined to the view that the fact there was, when the sale was executed, still time for redemption as provided in the mortgage deed, did not in the circumstances make any difference to the binding character of the sale. The sale itself was clearly occasioned by necessity to discharge the antecedent debts of the appellants' father, one of which! as we mentioned, was covered by the usufructuary mortgage and the others by two decrees of Court against him. Absence of actual pressure in the sense of an immediate demand by the mortgagor does not, therefore, in our opinion, conclude the question against the purchaser. We agree with the trial Court that the sale is binding on the plaintiffs.
5. The other point, which the appellants wanted to argue, is as regards limitation. According to respondents 1 to 3, the fourth defendant, who was the eldest of the minors, failed to file the suit within, three years of his attaining majority with the result the present suit is barred by limitation. The Court below accepted this contention. But on the view we have taken on the binding character of the sale, we do not think it necessary to consider this question.
6. The appeal fails and is dismissed with costs of respondents 1 to 3. Court-fee payable by the plaintiffs on their plaint and memorandum of appeal will be recovered from them.