Srinivasa Ayyangar, J.
1. In this second appeal I have arrived at the conclusion that it should be allowed. The defendant who is the appellant before us was the purchaser of certain properties described as a fractional share in a certain village. The plaintiff has claimed on partition a share as assignee from one of the members of the family to which these properties originally belonged. The District Munsif dismissed the plaintiff's suit, but on appeal that was reversed and a decree for partition was made by the lower appellate Court and hence this appeal.
2. The learned vakil for the appellant has drawn our attention to two decisions of their Lordships of the Judicial Committee in 'Sri Krishan Das v. Nathu Ram and Niamat Rai v. Din Dayal . The legal principle that emerges from a careful consideration of these two decisions of their Lordships is that when the question that arises is whether a sale by either the father or the manager of a joint family entitled only in certain circumstances to alienate the entire family property is binding, the proper thing to be considered is whether the circumstances under which the power was purported to be exercised were such that he could validly exercise the power. Once the power is held to be properly exercised, no further question arises as regards the necessity for the sale or the utilization of any balance out of the consideration either received by the vendor or with regard to which there is no finding that it was necessary either for family purposes or otherwise.
3. Numerous cases have been cited both in this Court and elsewhere where the Court has taken the view in respect of alienations, whenever, the alienation is found to be supported by necessity to a particular extent, either to allow the alienee to keep the property obliging him to pay the other party the amount in respect of which it was held the alienation was not properly supported or allow the person seeking to set aside the alienation to take the property or the particular share thereof on condition of his paying to the alienee the amount up to which the alienation purported to have been made is found to 'be binding. It is not as if in all these cases the question was lost sight of entirely by the Court or by the learned Judges that alienations of property might be held to be binding if substantially the sale was for purposes binding on the family. It is in the course of determining this latter question, namely, whether in the particular circumstances of a particular case it could be said that the sale was substantially for purposes binding on the family that recourse was had to examining the value of the property and the amount of the necessity found for alienation. Though no doubt such considerations may have been useful in particular eases, what their Lordships of the Judicial Committee have laid down clearly is this: that if the sale should be found to be substantially for purposes binding on the family, the mere fact that in respect of a small portion of the consideration no necessity has been proved or shown cannot affect the sale or the exercise of the power of sale. With regard to this as observed properly by the learned vakil for the respondent, each case has got to be determined on its own facts and no useful 'purpose is likely to be served by referring to the facts of various other cases. 'After all, if we should seek for a principle on which Courts of law can hold whether or not in particular cases alienations were substantially for necessity it seems to me that the matter can be looked at in this way. If a man of ordinary prudence, who is the ideal of the law, in respect of his own property or in respect of property which he is in charge of as manager of the family would in those circumstances have alienated the property for the purpose of raising the amount required for the interests of the family, then it follows that it must be considered as a case where the sale was substantially for necessity. If the facts, however, should turn put to be that the sale or transaction was obviously so imprudent that no man of ordinary prudence would have entered into such a transaction in respect of any such property, then it follows that it was a case in which the power was wrongly exercised or purported to be. I do not therefore propose to enter into any detailed examination of the various cases cited by the learned vakil for the respondent.
4. In this case then the entire property including the share under the assignment of which the plaintiff has now claimed was purported to be sold to the defendant, the appellant. The amount of consideration for the sale was Rs. 580 and out of this amount the finding of the lower Court is that to the extent of Rs. 325 it was supported by family necessity. The learned vakil for the appellant has sought to argue that even the balance was really paid by the purchaser for debts due by the father or the manager of the family and that, therefore, it should be held that the entire alienation was for the purposes binding on the alienor of plaintiff. With regard to this it is sufficient to observe that the original alienation in favour of the defendant was not made and was not purported to be made for the purpose of discharging those debts. The subsequent discharge of such debts is now relied upon as making out the necessity. In all these cases what we have to look at is the state of things when the alienation was made and the purpose for which the alienation was made or stated to be made. That is the reason also why the 'alienee is absolved from all liability to' see to the application of the purchase money 'once the circumstances are shown to be such as to justify the alienation. In this case it is perfectly clear that the sale was not, stated to be effected for the purpose of paying off these other debts on the fact of the payment of which it is now argued that this alienation might be supported. If they were not made for the purpose of paying off these debts, and the existence of these debts was not the ground on which the alienation was purported to be made it follows that from the mere fact that they were afterwards paid the alienation cannot be said to be supported. I must, therefore, take the finding to be binding on us that it is only to the extent of Rs. 325 there was necessity for the alienation.
5. Taking it so, the question then is whether an alienation of property worth about Rs. 580, when there is necessity only to the extent of Rs. 325 could be supported as an alienation that cannot be avoided. Applying then to this case the test which I have already alluded to no doubt there might be great difficulty in finding that a man of ordinary prudence would ordinarily speaking, not have alienated property worth Rs. 580, at least all the items covered by the deed of sale, when the necessity was only to the extent of Rs. 325. There was no reason why only some of the items or sufficient number of items to raise Rs. 325 should not have been alienated and why the other items should not have been reserved for the family. But if the question should be determined, as undoubtedly it has to be determined, by a consideration of the discretion exercised by the manager of the family or the father, then it becomes necessary to see whether the circumstances were such that I can hold that the discretion was wrongly exercised. Here again the solution of the question depends entirely on the facts and circumstances of each case. In this case we have the fact that not only the father, but the uncle of the person from whom the property is claimed has joined in making the alienation. They were undoubtedly by that act of alienation transferring all their entire interest in these properties. There are no circumstances in this case on which it can possibly be held that they had any motive in sacrificing the interest of the minor. Therefore, having regard to this fact alone it is possible for me to come to the conclusion that the circumstances clearly indicate an exercise of discretion by all the adult members of this family under circumstances which do not show that the discretion was exercised other than properly. No doubt it might have been open to the other party to adduce in evidence circumstances which might have shown the contrary, but no such attempt has been made. We have got further in this case the fact that the property consisted apparently of a share in a village.
6. No evidence has been given in this ease to show that the various items of property going to constitute the share could have been divided up into bits or that it would have been possible to effect any advantageous sale of only portions of the property. All the other items than item 8 appear at the time of the alienation in question to have been in the possession and enjoyment of the mortgagees and it may be observed that item 8 appears to be merely a vacant village site probably pertaining to the share as a sort of appurtenance to the share represented by the other items of the other property. In these circumstances there is not the material and it is impossible for me to come to the conclusion that the discretion exercised by the adult members of the family in effecting a sale of the entire property was wrong. After all, when there are no circumstances of prejudice or;other questionable motive, we must take lit that the discretion of the father or the manager must be taken to be proper until land unless the contrary is established in the evidence or there are circumstances to show the contrary. In the absence of any such it must be held that it has not been shown that the discretion exercised by the adult members of the family in effecting a sale was beyond their legitimate powers. If, therefore, the exercise of the power of alienation was right, no question arises of adjusting any equities. If the whole alienation is to be upheld, there is no question of any payment by the alienee to the plaintiff or any other person whatsoever. The alienation is valid. The balance of purchase money was properly paid into the hands of the alienors. The alienee is not bound to see to the application of any such balance provided there is the power to alienate. Therefore: I am satisfied that the judgment of the lower appellate Court, setting aside the alienation to the extent of the one-fourth share and granting a decree to the plaintiff for partition to the extent of one-fourth share subject to the payment of the portion of the purchase money is. wrong. I must, therefore, allow the appeal and restore the decree of the Court of first instance dismissing the plaintiff's suit. The respondent will pay the appellant his costs throughout.
Ananthakrishna Ayyar, J.
7. I agree. I should like to add a few words on, the question of equity raised by the learned vakil for the respondent. It must be admitted that there have been a number of decided cases in this Court as well as in the Allahabad High Court where the Court was asked to consider and did consider the question of equities even in cases where the Courts upheld the sales in question.' But having regard to the decision of the Privy Council in the two cases quoted by' the learned vakil for the appellant, Srikrishan Das v. Nathu Ram and Niamat Rai v. Din Dayal , I think that the cases referred to by me require reconsideration. On looking into the principle of those cases, as far as one is able to see. a sale impugned must either be upheld or held to be not binding. If a sale is held not binding, then questions of equity would crop up. But in cases where the sale is held to be binding, I fail to see how in ordinary eases any question of equity would arise at all. The finding that a sale is binding implies that either the persons who effected the sale had authority or that, having regard to the particular circumstances in which the sale was held, authority to sell must be implied in law. Whatever might be the exact ground on which a sale is upheld, if a sale is really upheld, one fails to see how the Court is justified in asking the purchaser to pay again the whole or any portion of the purchase money. The circumstance that there was an occasion for sale implies that the purchaser was justified in dealing with his vendor and that also implies that he was justified in parting with his money and paying the same into the hands of his vendor. Having once paid the consideration it is difficult to understand why he should ordinarily be compelled to pay again any portion of the purchase money. But that would seem to be the result of some of the cases which have been decided in this Court as well as in the Allahabad High Court. But, as I have said, having regard to the latest rulings of the Privy Council, I am of opinion that these cases require reconsideration.
8. I also wish to mention one other matter. Sales conducted by coparceners, among whom is the father or the manager of the family conveying out not only their in dividual shares but also the shares of the minors of the family would, it seems to me, stand on a different footing from sales effected by guardians of property of minors in which the guardians have no personal interest. Sales by managers and coparceners would ordinarily stand on a different footing from the sale effected by guardians for this reason: that the coparceners who join in such sales have themselves got an interest in the property they purport to sell. No doubt they purport to deal with the shares of minor coparceners also. But the circumstance that they have got their own individual interests also in the property which they purport to sell is I think one important factor to be taken into account in considering whether an occasion for sale had arisen or not. In the case of a sale by a guardian, he, not having any personal interest in the property that he purports to sell, the purchaser from such guardian, should be expected to have proper proof that an occasion for sale arose and that the sale was for purposes binding upon the minor.
9. In the case of a joint Hindu family, as I have said, the question would be whether the manager of the family and the other coparceners thought that in the circumstances a fair case had arisen for converting a portion of the joint family property into money and the fact that they themselves had shares in the property sold would ordinarily be taken to be a strong indication that the sale was effected bona fide. Of course, if there be any circumstances in the evidence which tended to show that the coparceners in defence of the rights of minors wanted to convert the immovable property into money with a view to misappropriate them, say for themselves, the matter might be quite different. Now the cases quoted on behalf of the respondent have laid great emphasis upon the exact portion of the purchase money which has been found to be binding in the particular circumstances of each case. While granting that that would be one of the factors to be taken into account in deciding whether a particular sale should be ultimately held to be binding or not, I must say that if, however, the cases proceed to lay down that that test is conclusive, then, with all deference, it seems to me that that is not a proper position to take. The proportion of the price to the amount of actual necessity is no doubt a factor, ordinarily an important factor but that is not the sole test to be taken into account in adjudicating on such matters.
10. In the present case, having regard to the fact that the minor's father and uncle-have joined in executing the sale and that out of the amount of Rs. 580, the sum of Rs. 325 is admitted to be a debt binding upon the family, I am of opinion that no circumstances have been adduced by the subsequent vendee, the plaintiffs to hold that the sale was not a bona fide one binding upon all the coparceners. The plaintiff in this case is a person who has purchased subsequently the rights of the minor, the defendant being the purchaser from the other coparceners. Having regard to the facts found by the lower appellate Court, it seems to me that no case has been made out by the plaintiff why the sale to the defendant is not binding upon the minor. I agree in the decree proposed by my learned brother.