I.K. Kotwal, J.
1. This civil second appeal is directed against the judgment and decree of District Judge, Udhampur, upholding on first appeal the judgment and decree of Sub Judge, Udhampur, decreeing the plaintiffs-respondents' suit for declaration that sale deed dated October 15, 1965 executed by Devidayal respondent No. 5, now dead, in favour of the appellant, pertaining to one shop situate at Reasi, is null and void, with the consequential relief of possession of the said shop.
2. The plaintiffs-respondents, out of whom respondents 1 and 2 are the sons of Devidayal, respondent No. 3 his mother and respondent No. 4 his widow, brought a suit for declaration with consequential relief of possession alleging : that Devidayal was by habit a drunkard and a gambler who would spend all money on these vices; that he had no necessity to alienate any property belonging to the joint family of which all of them were members, but he still executed a sale deed on 15-10-1965 in respect of the suit shop in favour of the appellant without receiving any consideration; and that whatever consideration he received from the vendee he spent it on gambling and drinking. The suit was resisted by the appellant vendee on the ground that the sale was for legal necessity as the vendor Devidayal had to maintain his family consisting of himself and the plaintiffs-respondents and had also to educate his sons, namely, respondents 1 and 2. He also stated that part of the sale consideration was utilized for liquidating an earlier mortgage debt of Rs. 1,100/- as the very said shop had be.en mortgaged by Devidayal in his favour for a sum of Rs. 1,100/- vide mortgage deed dated 20-10-1963.
3. On the pleadings of the parties, a number of issues were raised by the trial Court, The parties joined the issues and led evidence on them. The learned Sub Judge on consideration of the same decreed that plaintiffs-respondents suit, holding the plaintiffs and Devidayal were members of a joint Hindu family, that the suit shop was ancestral property of the plaintiffs, and that the sale was vitiated by the fact that Devidayal being a habitual drunkard and gambler, had spent the entire sale proceeds on immoral pursuits. Without categorically holding whether or not any legal necessity existed, it decided the issue in regard to legal necessity against the appellant by holding that he had failed to prove that he made any enquiry about the existence of legal necessity before purchasing the suit shop. It further held that even if the sum of Rs. 1,100/- relating to mortgage debt which was included in the sale price was proved to have been paid to Devidayal at the time of the execution of the mortgage deed, yet it was not enough to discharge his burden and the appellant was further required to prove that this sum was also obtained by Devidayal for legal necessity. On appeal, the findings with regard to the jointness of the family and the character of the suit property were confirmed by the learned District Judge, who also held that even though Devidayal was compelled to raise money by the sale of the suit shop in order to maintain himself and his family members, yet the sale was vitiated because the money so obtained had been spent by him not on the maintenance of the family, but on immoral pursuits like drinking and gambling. He further found that the passing of the consideration of Rs. 1,100/- at the time of the execution of the mortgage deed was not proved and that only Rs. 100/- out of the aforesaid sum were proved to have been paid by the appellant to Devidayal. He accordingly upheld the judgment and decree of the trial Court and dismissed the appeal.
4. Mr. Gupta appearing for the appellant has not assailed the findings of the courts below either that the plainliffs-respondents and Devidayal were members of a joint Hindu family, or that the suit shop was ancestral qua the plaintiffs. It is not necessary for me to deal this aspect of the case. Suffice it to say that respondents Janti Devi and Chana Devi could be only members of the joint family, but not the members of the coparcenary. There was, therefore, no question of the suit shop being ancestral qua them, though the same was ancestral qua respondents Kuldip Raj and Jagdish Raj. It is further open to question whether Janti and Chana Devi had a right to challenge the alienation made by Devidayal on the ground that the same was not supported by legal necessity.
5. Mr. Gupta has, however, contended that the findings recorded by the courts below on the issues of legal necessity of the debt are contrary to law. I find considerable force in this contention. It is well settled that a father who is the Karta of a joint Hindu family can alienate the property belonging to the joint family, including the share of his sons, either for legal necessity, or for payment of his antecedent debt.' The burden of proving the legal necessity is undoubtedly on the alienee. Where the alienee shows that the alienation was made for payment of an antecedent debt incurred by the father, he is not further obliged to show that the same was also incurred by him for legal necessity. The burden will then shift on to the son to show that the debt was tainted with immorality. This proof implies two things : one, that the debt was utilized for immoral purposes, and two, that the alienee had notice of the same. The mere proof that the debt was utilized for immoral purposes will not be enough to vitiate the alienation. Law on the point has been authoritatively laid down by their Lordships in Luhar Amrit Lal Nagji v. Doshi Jayantilal Jethalal, AIR 1960 SC 964 in the following words :
'......Where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so contracted......'
6. The sale consideration in the instant case consists of Rs. 3,400/-, of which Rs. 1,100/- were advanced by the appellant to Devidayal at the time of the execution of the mortgage-deed. There is no doubt evidence on the record to show that Devidayal was a habitual drunkard and gambler, and that he spent this amount on drinking and gambling, yet there is not an iota of evidence to show that the appellant too at the time of the execution of the sale deed had knowledge of this fact. Obviously, therefore, the trial Court was not right in holding that in order to discharge his burden of proving legal necessity for the sale deed, the appellant had further to show that the mortgage debt was also incurred for legal necessity.
7. This brings me to the rest of the sale consideration amounting to Rs. 2,400/-. To justify the sale for this sum, the appellant was required to prove either that legal necessity for execution of the sale existed, or that he had made enquiries about its existence and bona fide believed it to exist before entering into the sale transaction. He was not required to prove both things. It is in evidence that at the time the sale deed was executed Devidayal had been dismissed from service. It is also in evidence that he had to support a big family including himself and the plaintiffs-respondents, for which he had no ostensible means. There is also evidence to the effect that in order to meet the requirements of the family, Devidayal needed a minimum sum of Rs. 200/- per month. He had no such income and this is proved from the plaintiffs' evidence itself. All these facts and circumstances clearly prove the existence of legal necessity. Even the District Judge has on consideration cf the evidence recorded a finding to this effect. To quote the learned Judge in his own words :
'.....It has come on record that defendant 1 was suspended and dismissed from service and had no means to maintain his family. This fact can lend substance to the averment that legal necessity of maintaining the family was there and the defendant 1 was forced by the circumstances to raise loans. But this suspension and dismissal is a culmination of an immoral behaviour of the defendant 1. It is on the record that he used to drink and gamble which has led to his dismissal......'
After the appellant had satisfied himself about the existence of legal necessity and paid the sale price to Devidayal, he was not further obliged to see that the sum advanced by him was actually applied to meet the necessity. He could have no control over the actions of the vendee after he had paid the money to him. In saying so I am only following the law laid down by their Lordships of the Supreme Court in Radhakrishnadas v. Kalu-ram, AIR 1967 SC 574 wherein it was held :
'......What the alienee has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the alienee can rarely have the means of controlling and directing the actual application of money paid or advanced by him unless he enters into the managements himself......'
The District Judge was, therefore, clearly wrong in setting aside the sale on the ground that the sale price was spent by Devidayal on immoral pursuits. His finding that a sum of Rs. 100/- only out of a total sum of Rs. 1,100/- was paid to Devidayal at the time of the execution of the mortgage deed is also perverse. He has based his finding on the oral testimony of a marginal witness while ignoring the endorsement of the Sub Registrar to the contrary.
8. It is, therefore, manifest that both the courts below have taken a wrong view of the facts as well as law and their judgments cannot be allowed to survive. The sppeal is accordingly allowed, the judgments and decrees of the courts below are set aside, and the plaintiffs-respondents' suit is dismissed. In the circumstances of the case, the parties are left to bear their cwn costs throughout.