Kumaraswami Sastri, J.
1. The plaintiffs, who are the appellants, sued for a partition of the properties specified in the plaint between themselves and their father, who was the first defendant, after setting aside the alienations made by the first defendant to the other defendants, The alienations complained of were made under four sale deeds, Exhibits B, C, D and F. The Sub-ordinate Judge held that the alienation under Exhibit C was binding on the plaintiffs and dismissed the. suits as regards the items comprised therein. He found that the alienations under B, D and F were not binding, but passed a decree in favour only of the 2nd plaintiff for his share of the items holding that the 1st plaintiff's claim was barred by limitation. The plaintiffs appeal in so far as the decree is against them.
2. As regards the question of limitation, the case so far as the 1st defendant's alienation is concerned clearly falls under Article 126 of. the Limitation Act, which provides for a period of 12 years for suits by a Hindu governed by the law of the Mitakshara to set aside his father's alienation in ancestral property. The fact that the father executes the document as guardian of his son will not take the case out of Article 126 and bring it under Article 44, which applies to cases where property belonging to a minor is transferred by his guardian. In the case of joint family property the father is co-owner with the sons. He sells property as the managing member of the family and the mere fact that he describes himself as guardian of the sons would not take the case out of the express terms of Article 126. In Lachmi Narain Prasad v. Kishan Kishore Chand 33 Ind. Cas. 913 which was a case where property had been conveyed by the father and grandfather, the Article that was held applicable was Article 126 and the suit was dismissed on the ground that the alienation was more than 12 years before suit. In Ramkishore Kedarnath v. Jainarayan Ramrachpal 20 Ind. Cas. 958: (1913) M.W.N. 661: 17 C.W.N. 1189their Lordships of the Privy Council treated a suit by the sons to set aside a partition by the father giving to a stranger properties as a suit governed by Article 126. I might also refer to Soundararajan v. Saravana Pillai 34 Ind. Cas. 794 and Kishan Lal v. Shib Narain 3 Ind. Cas. 505 and Asaram v. Ratansingh Cas. 12 N.L.R. 12. The plaintiff is, therefore, entitled to a decree so far as his one-third share in the properties covered by Exhibits B and C is concerned.
3. As regards the alienation under Exhibit C, I am unable to agree with the Subordinate Judge. The 1st defendant and his father, who died before 1909, conveyed about 46 acres 45 cents of Nanja land and 3 acres 65 cents of Punja for Rs. 5,000. The recital as to consideration runs as follows: ' Owing to the distance between the said Palli Vialkam village and Mudikondan village where we live, the cultivation and other business have been interrupted and a great deal of loss has been occasioned. Intending, therefore, to discharge the present small debts of our family and to purchase lands in the village where we reside and to, better our prospects by carrying on money dealings you and we entered into an agreement on the 29th October last, and under this we receive Rs. 500 in cash, and the amount received by us this day from you is Rs. 1,500 and the amount with which we are debited under the agreement to receive in the presence of the Sub-Registrar of Nannilam from you is Rs. 3,000.'
4. The distance between the village where the lands sold are situate and the 1st defendant's village is admitted to be within 10 miles, and it is difficult to see why cultivation should be interrupted and a great deal of loss occasioned because of the distance. Families often own lands few miles away and this would not justify a Hindu father in alienating the lands. So far as the debts are concerned, all that is stated is that there were some 'present small debts,' and there is no evidence either as to the extent of the debts or as to any debts having been paid off. The transaction was not very old and the existence of debts could easily have been proved. The family was not a tracing family or one carrying on money-lending business and the starting of prospective moneylending transactions is no ground for alienating family properties. The observations of the Privy Council in Palamappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722: 33 M.L.J. 1: 22 M.L.T. 1 apply with equal force to sales of joint family properties by non-trading families. Though there is nothing said in the sale deed as to any difficulties having been experienced owing to the want of irrigation facilities, from evidence of the defendants' witnesses the sale does not seem to be justified. The lands sold consisted of 46 acres 45 cents of wet land and it appears from the evidence of 3rd defendant that irrigation supply was improved by Government in 1904 or 1905 (prior to the sale Exhibit C). He wants to make out that because the silt was not cleared by the Public Works Department) the harvest' was poor for 4 or 5 years and that when the department removed the silt, the harvests were good. Defendants' 4th and 5th witnesses 'want to make out that the water supply was bad till shutters were fitted up to the irrigation channel and improved afterwards. It is nut disputed that the Government completed the irrigation channel over two years before the sale. If all that was required to make the channel a success was the removal of the silt or the putting up of shutters, I cannot say that it was a prudent act to sell the lands after irrigation facilities were completed, as it was almost certain that the Government would do the needful to give a good supply of water. The sale or mortgage of ancestral lands to purchase other lands can only be justified if there was clear benefit to the family: In Re: Krishnasawmi Doss 13 Ind. Cas. 648; Subramania Nadan v. Ramasami Nadan 21 Ind. Cas. 656; Adikesavan Naidu v. Gurunatha Chetti 39 Ind. Cas. 358: (1917) M.W.N. 171 and having regard to the case with which such recitals can be made by an improvident < father in order to raise money, I think Courts ought to be slow to find necessity unless on clear proof that the transaction was one manifestly for the benefit of the family. So far as the price' of the lands is concerned, I do not think Exhibit 11, which is relied on by the Subordinate Judge, is a safe criterion. Thamarai Selvam Pillai, the purchaser under Exhibit 11, admits that he got the lands cheap. Subramania Iyer, the vendor, D. W. No. 4., admits that he purchased the lands for Rs. 3,600 and that he sold the lands for Rs. 3,000 as he had debts to the extent of Rs. 3,600. The sale deed shows that Rs. 3000 went to discharge debts and the price at which a needy debtor sells is no safe criterion as to value. Having regard to the other sale-deeds filed in the case the value per acre is certainly much more than the price for which the lands have been sold under Exhibit C.
5. I am not unmindful of the fact that the 1st defendant's father also joined in the sale-deed. When evidence as to necessity is not clear, the fact that all the adult members of the family joined' would have an important bearing, but when there is no justifying necessity the mere fact that all the adult co-parceners joined would not give any additional weight to the transaction.
6. I am of opinion that the sale of the land under Exhibit C is not binding on the plaintiffs. As, however, it is proved that the lands covered by Exhibit 11, dated 9th April 1908, were purchased for Rs. 3,000 out of the sum of Rs. 5,000, the consideration for Exhibit C, the plaintiffs, if they seek to avoid the alienation under Exhibit C, cannot get any share of the lands purchased by 1st defendant under Exhibit 11. Their claim to these lands, items Nos. 2 to 27 specified in schedule B to the plaint, is, therefore, dismissed and the property will be declared to be the separate property of the 1st defendant.
7. As regards the claim for mesne profits, I do not think plaintiffs are of right entitled to mesne profits from the date of alienation. Mesne profits are in the nature of damages and each case must be dealt with on merits. I think the correct principle has been laid down in Bhirgee Nath V. Narasingh Tewari 35 Ind. Cas. 475.
8. In the result, the decree of the Subordinate Judge will be modified by decreeing to the plaintiffs a third share in the properties alienated under Exhibits B and C in addition to a third share decreed to the 2nd plaintiff. The decree of the Subordinate Judge dismissing the suit as regards alienation of the items covered by the sale-deed Exhibit C is set aside, the plaintiff getting 1/3rd share in the said items (the 1st plaintiff getting l/6th share). As plaintiffs elect to take the lands in Al schedule to the plaint which represent lands exchanged for some of the family lands covered by Exhibit C they will get 1/3rd share of the lands covered by schedules A and A1 to the plaint. The plaintiffs' suit as regards items covered by the sale deed Exhibit VII (B schedule properties) will be dismissed. The alienees defendants Nos. 2 to 6 will have a charge on the properties covered by Exhibit VII, except those alienated under Exhibit E, to the extent of a third of the consideration paid by them under Exhibit C. There wilt be a preliminary decree for partition on the above terms. Each party will bear his own costs of the appeal.
John Wallis, C.J.
9. I agree and will only say that I concur in what my learned brother has said as to the question of mesne profits in a case like this being determined upon a consideration of all the circumstances of the case.