JUDGMENT:
Padmanabhan, J.
1. These Letters Patent appeals have been filed against the common judgment of a learned single Judge of this Court dismissing the appeals, A.S Nos. 574 of 1972 and 522 of 1974 filed by the 4th defendant in O.S 191 of 1967 and O.S 3 of 1968 on the file of the Court of the Subordinate Judge of Erode. One Chinnasami Gounder had two minor sons Asokan and Prithviraj and a minor daughter Jothi by his wife Thangammal. Admittedly, the suit properties were joint family properties in the hands of Chinnaswami Gounder. While so, Chinnaswami Gounder, sold the plaint A schedule property to the appellant Sampoornammal for a sum of Rs. 15,000 under a sale deed, dated 29th November, 1965. Asckan and Prithiviraj represented by next friend filed O.S 191 of 1967 on the file of the Court of the Subordinate Judge, Erode, for a declaration that the sale deed, dated 29th November, 1965 executed by the father Chinnaswami Gounder in favour of Sampoornammal was not binding on their 2/3rd share and for partition and separate possession of 2/3rd share in the suit properties. The mother of the plaintiffs is the second defendant in the suit. The plaintiffs' sister is the third defendant. The alienee Sampoornammal, the appellant before us, is the 4th defendant. The case of the plaintiffs is that the father was given to immoral ways and was leading a reckless life without, in the least, caring for his wife and children. As early as on 16th August, 1965, he drove his wife and children out of the house. Thereafter, the second defendant the mother went to her mother's house with the children. Even then it was apprehended that in order to meet his immoral necessities, the first defendant was about to dispose of the property to one Muthuswami Gounder who is none other than the father of the appellant. The second defendant therefore issued a notice to the said Muthuswami Gounder stating that there was no family necessity for the first defendant to sell the property and that in case Muthusami Gounder purchased the property the sale wojld not be binding on the share of the minor plaintiffs. To circumvent this notice, subsequently, on 29th November, 1965, the first defendant sold plaint A schedule property of an extent of 1.80-¾ acres to the appellant. This extent of 1.80-¾ acres is the ¼ th share belonging to the joint family out of the total extent of 7.23 acres comprised in T.S No. 1424 and 1425. Apart from this property, the first defendant's family owned a residential house in Kollampalayam described in the B schedule. It has also an extent of 37-2/6 cents of dry land in O.S No. 1164. The plaintiff's case is that the sale deed is not supported by consideration and family necessity and that the debts recited in the sale deed were not binding on them. The appellant defended the suit on the ground that the first defendant had incurred debts which were binding on the family. After the debts were discharged a sum of Rs. 2,800 had been paid to the first defendant. The balance of Rs. 6,000 had been deposited in a bank for the benefit of the minors. She, therefore, pleaded that the sale deed was not liable to be declared void.
2. O.S 3 of 1968 was filed by the second defendant wife and her minor daughter the third defendant for maintenance from the first defendant. She also claimed a charge on the suit property. The appellant who is also the 4th defendant in the suit contended that the sale in her favour was in discharge of the antecedent debts and that she was a bona fide purchaser for value and in the circumstances the plaintiffs could not claim any charge on the A schedule properties.
3. The learned single Judge found that the sale deed which is marked as Ex. B1 is not binding on the 2/3rd share of the minor plaintiffs and passed a preliminary decree for partition and separate possession in O.S 191 of 1967. The learned Judge also decreed O.S 3 of 1968 and granted maintenance at the rate of Rs. 30 per month for the wife and Rs. 20 per month to the minor daughter and created a charge over the 1/3rd share of the first defendant in the said properties. On appeal by the appellant the learned single Judge of this Court confirmed the findings of the learned Subordinate Judge and dismissed both the appeals. The cases were posted for being mentioned. The learned single-Judge stated that the plaintiffs would be bound to bear the 2/3rd share of the liability of the debts which were found to be binding on the estate and the interest thereon. In this view, the learned Judge directed that the appellant would be entitled to get 2/3rd share of the interest due on the said debts along with 2/3rd share of the principil debt. As regards maintenance, the learned Judge held that the maintenance would not be a charge on the 1/3rd share of the property in respect of which the alienation has been upheld.
4. In the appeils before us, Mr. Sivasubramanian, the learnd counsel for the appellant argued that the alienation should have been upheld in entirety and not merely to the extent of 1/3rd share of the pioperty. The learned counsel urged that out of the total consideration of Rs. 15,000 a sum of Rs. 6,200 was paid for meeting the debts which are binding on the family, a sum of Rs. 2,800 was paid in cash at the time of registration. The balance of Rs. 6,000 had been deposited in the names of the minors and that the deposit carried interest at the rate of 7-1/2 % per annum. The learned counsel referred to well established principles of Hindu Law that it was not necessary for an alienee from the Manager of a joint family to look to the application of the money. The learned counsel also stated that the learned Judge committed a serious error in stating that value of the property was Rs. 25,000. According to the learned counsel there is absolutely no basis either in the pleadings or on the evidence for this.
5. The question for consideration is whether Ex. B1 sale deed is valid and binding on the joint family and the plaintiffs. The property sold under Ex. B1 is an extent of 1.80-¾ acres of three crops paddy land. The consideration of Rs. 15,000 is made up of the following amounts—
1. A sum of Rs. 3,500 payable to the Kasipalayam Co-operative Agricultural Bank Ltd. under loan No. 2522, dated 31st July, 1964.
2. A sum of Rs. 2,100 payable to one Kembaraju under the decree in O.S 762 of 1963 on the file of the District Munsif Court, Erode.
3. A sum of Rs. 600 for discharging the debt borrowed by plaintiffs' father from his uncle Velusami.
4. Rs. 2,830 reserved to be paid before the Sub Registrar for the purpose of meeting sundry debts and for maintenance of the minors.
5. Rs. 6,000 to be deposited in a bank in the name of the minors.
The sale deed stated that recitals 1 to 3 should be piid directly by the appellant and the necessary receipt for the discharge of the debts obtained. Schedule B and C propertias were given as security under the sale deed. Ex. B9, dated 11th December, 1965 is a receipt for Rs. 2,100 issued by Raju in favour of the appellant for the receipt of Rs. 2,100 due to the latter under the decree in O.S 762 of 1963 on the file of the Munsif Court, Erode. Ex. B3, dated 27th September, 1963 shows that full satisfaction of the decree was recorded on 27th September, 1969. Ex. B11 shows that on 11th January, 1966 an award was passed by the Extension officer (Crops) Erode in A.F No. 8 of 1965-1966 for a sum of Rs. 3,279 in favour of the Kasipalayam Co-operative Agricultural Btnk Ltd., against the plaintiff's father. Ex. B10, dated 14th March, 1966 is a receipt issued by the Kasipalayam Co-operative Agricultural Bank in favour of the appellant for a sum of Rs. 3,452.63. There is no record to show that the appellant had paid sum of Rs. 600 to the plaintiffs' unsle Velusami as recited in Ex. B1. There is no dispute that a sum of Rs. 6,000 was deposited in bank in terms of the recitals in Ex. B1. We are therefore in respectful agreement with the finding of the learned single Judge that on the date of Ex. B1 there ware only two dsbts which had to be discharged by the plaintiffs' father, viz., the debt in favour of the Kasipalayam Co-operative Agricultural Bank Ltd., in a sum of Rs. 3,500 and the other in favour of the decree-holder Raju in O.S 762 of 1963 on the file of the District Munsif Court, Erode.
6. Mr. Sivasubramanian contended that under Hindu Law, though the burden of proof was on the alienee to prove that an alienation by the father or the Manager of the joint Hindu family was supported by consideration and legal necessity, the burden would be discharged if the alienee was able to prove tint there was legal necessity. There was no duty cast on the alienee to see to the application of the money. Further, it is equally not for the alienee to find out whether the Manager or the father should sell the entirety of the property to meet the necessity. Once the alienee was satisfied that there was legal necessity and he acted bona fide and after due enquiry then he should be protected, notwithstanding the fact that the court might take the view that the necessity could have been met in ways other than by the sale of the property. The learned counsel also laid emphasis on the fact that when a major portion of the consideration is found to be supported by legal necesssity, then the court was under a duty to uphold the sale. In this case, according to the learned counsel there was admitted debt to the tune of Rs. 5,600 which required to be discharged and this taken along with the sum of Rs. 2,800 paid at the time of registration of the document would show that major portion of the sale consideration went for the discharge of legal necessity.
7. It is now settled by the decisions of the Privy Council, the Supreme Court and this Court that the Manager or Kartha or a joint Hindu family has the power to alienate the joint family property for value so as to bind the interest of adult and minor coparceners in the property provided the alienation is made for legal necessity or for the benefit of the estate. A Hindu father has also the special power to sell or mortgage ancestral property including the interest of his sons to discharge a debt contracted by him for his own personal benefit and that such alienation will be binding on the sons provided the debt was antecedent to the alienation and it was not incurred for any immoral purposes. Antecedent debt means a debt which is antecedent in fact as well as in time. In other words, the debt must be truly independent of and not part of the transanction mentioned. A borrowing made on the occasion of the mortgage cannot bs said to be an antecedent debt. It is equally clear that an alienation by the father of the joint Hindu family neither for legal necessity nor for the payment of an antecedent debt does not bind the sons' interest in the property. The burden of proof is on the alienee. Where the Manager or a father of the joint Hindu family alienates joint family property the alienee is bound to inquire into the necessity for the sale anl the burden lies on him to prove either there was a legal necessity in fact or the alienation by the father was for the discharge of an antecedent debt or that he made proper and bona fide enquiry as to the existence of such necessity. It is also clear that the purchaser is not bound to see that the money advanced by him was actually applied to meet the necessity. This is on the principle that the purchaser can rarely have the means of having control and directing the actual application of the money. It is also well settled that where the existence of family necessity is established, the manner in which it should be met and the manner of the application of the money for the purpose of meeting the necessity is a matter entirely for the Manager to decide and so long as he does it honestly and prudently in the interest of the family, the fact that another person in the position of a Manager could or would have made a better arrangement for meeting the necessity is not an argument available to invalidate the actual arrangement made by the Manager. Of course, if the challenge to the alienation is on the ground that the antecedent debts incurred by his father were tainted by immorality, it is for the sons to prove that the antecedent debts were immoral and also that the purchaser had notice that they were so tainted. These principles are borne out by citations made by Mr. Sivasubramanian, viz., Sri Krishna Das v. Nathu Ram . A.I.R 1927 P.C 37=26 L.W 856., Niamat Rau v. Din Dayal . A.I.R 1927 P.C 121=26 L.W 442., Gouri Shankar v. Jivan Singh . A.I.R 1927 P.C 246=27 L.W 203., Amritlal v. Jayantilal . A.I.R 1960 S.C 964., Gopala krishna v. Krishna Iyer . 1961-1-M.L.J 296=74 L.W 93., Veerabhadrappa v. Lingappa . A.I.R 1963 Mys. 5., Krishnarajan v. Dorasami, Radhakrishnadas v. Kaluram . A I.R 1967 S.C 574., and Arvind v. Anna . 1980-2-S.C.W.R 13.. We shall only extract the following passage from the decision of the Supreme Court in Radhakrishnadas v. Kaluram:—
“Where an alienation, by way of sale, of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself.”
8. In this case, in order to test the validity of Ex. B1 sale deed, certain facts had to be borne in mind. Admittedly, in this case the mother left the house of the father with the minor children in August, 1965. On 10th September, 1965 the second defendant mother issued a notice Ex. A1 through counsel to the first defendant and Muthuswami Gounder. The notice clearly stated that the first defendant was in the habit of illtreating the second defendant and that finally he drove her out of the house with the three children.
XX XX XX XX
[The discussion of the evidence, is omitted: Ed.]
On the evidence we are not satisfied that the appellant has been able to establish that Ex. B1 was supported by legal necessity except to the extent of Rs. 5,600. As already stated D.W 1 has not even given formal evidence that either the appellant or he made enquiries and were satisfied that there were sundry debts for the discharge of which a sum of Rs. 2,800 was paid. The recital in Ex. B1 that the first defendant had to maintain the minor children was obviously false because the second defendant and the minor children had left the house even in August, 1965 and a notice had been issued by counsel to the first defendant and Muthuswami Gounder claiming maintenance and also warning him that the property should not be sold and if sold the sale would not be binding on the second defendant and the children. We are equally satisfied that the document was taken in the name of the appellant by her father Muthuswami Gounder only to circumvent Ex. A1 notice, issued by the second defendant's counsel to the first defendant and the appellant's father.
9. Mr. Sivasubramaniam argued, supported by the decision in Sri Krishna Das v. Natu Ram, that where the sale has been proved to be for legal necessity, but there is no evidence as to the application of a portion of the consideration, a presumption would arise that it has been expended for proper purposes and for the benefit of the family. It must be noted that in the Privy Council case the total sale consideration was Rs. 3,500 out of which the necessity was proved to the extent of Rs. 3,000. Similarly, in the case before the Supreme Court in Radhakrishnadas v. Kaluram, out of the consideration of Rs. 50,000, Rs. 45,000 was admittedly for binding debts. However, that is not the position in this case. Here, out of the total consideration of Rs. 15,000 the legal necessity has been established only to the extent of Rs. 5,600. In the circumstances, we are unable to accept the argument of Mr. Sivasubramanian that a major portion of the consideration has been proved to be for legal necessity and that the purchaser has not been able to prove the necessity only with regard to a negligible portion of the consideration. Apart from this, it is borne out by the evidence of P.W 1 and also the notice issued under Ex. A1 that plaint A schedule property was worth Rs. 25,000. As against this the appellant has not established that she had purchased the property for an adequate consideration. Hindu Law on the subject is clear, viz., although there may be legal necessity justifying alieaation, it is not open to a father or other manager to sacrifice family property for adequate consideration. The transfer in such circumstances is liable to be set aside at the instance of other copar ceners. In Ram Charan v. Bhagwan Das the Privy Council observed thus—
“In these circumstances, a transaction even involving the disposal by Gopal Das of this entire immovable family property might well be justifiable and be binding on the whole family, provided the property was not sacrificed for an inadequate price and provided the consideration was calculated to relieve the necessity, the existence of which called for the disposition.”
10. In Kailash Nath v. Tulshi Ram, after referring to the ratio of the Privy Council in Ram Charan v. Bhagwandas, Sinha, J., observed thus—
“It is, therefore, obvious that the adequacy of the price was a factor emphasised by their Lordships and that it was not merely enough that the consideration was calculated to relieve the necessity. Both conditions were to co-exist. Even though the consideration was devoted to the payment of the just debts of Maiku Lal and Ram Narain, it was not open to the latter to sacrifice the family property for an inadequate consideration. In the case before their Lordships the evidence had, under a sale deed executed under the orders of the court, been placed in possession. This did not prevent their Lordships from setting aside the transaction on the ground that it was an improvident transaction.”
Following this principle, the Bench set aside the sale deed on the ground that the family property was actually proved to be worth Rs. 40,000 when it was sold for Rs. 30,000.
11. In Helava v. Senigowda, a Division Bench of the High Court observed thus:—
“It is equally clear that while making such alienation of property of which he is not the sole owner, he should exercise a measure of prudence higher, as in the case of a trustee, than if he were its sole owner even if he was making the alienation for family necessity or benefit. If, however, the alienation is unreasonably excessive in the seme that more property has been sold than was necessary to relieve the existing necessity or for a grossly inadequate price, it could hardly be suggested that he exercised the required degree of prudence or did not unnecessarily sacrifice family property.”
12. In D. Nagaratnamba v. K. Ramayya, the Andhra Pradesh High Court held:
“When there are minors, the father cannot at any rate, neglect his duty to act as a prudent guardian or trustee of the properly. Needless further to say that even in cases of necessity not only the sale should be for value but also the consideration should be adequate.”
13. The question arose for consideration before the Full Bench of the Allahabad High Court in Dudh Nath v. Sat Narain Ram. The question referred to the Full Bench was ‘whether an alienation of ancestral joint family property by a Hindu father is not binding on his son if it was made for inadequate consideration, even if there was legal necessity’. After referring to the various decisions Sahai, J., observed thus—
“Several cases decided under the Hindu Law that a Hindu father or a manager of joint Hindu family is expected to act prudently. However great the necessity may be, if the joint family property is sacrificed for inadequate consideration, it would be a highly imprudent transaction and it would be a case where, though for necessity, the father or the guardian has not acted for the benefit of the estate of the members of the joint Hindu family. The father of the manager is not the sole owner of the property. In fact, until the partition takes place even his share does stand demarcated. The ownership vests in all the coparceners taken together as a unit. The father and the manager therefore only represent the coparceners. Consequently the coparceners stand bound by the act of the father or the manager of the family only to the extent the act is prudent or for the benefit of the coparceners or the estate. For the reasons mentioned above I am of the opinion that in order to uphold an alienation of a joint Hindu family property by the father or the manager, it is not only necessary to prove that there was legal necessity but also that the father or the manager acted like a prudent man and did not sacrifice the property for inadequate consideration.”
14. In this case, P.W 1 has given evidence that the value of the property was Rs. 25,000. As against this, there is no evidence on the side of the appellant. The appellant ought to have proved that the father, the first defendant did not sacrifice the family property for an inadequate consideration and the sum of Rs. 15,000 paid towards the sale represented a fair value of the property as on that date. Mr. Sivasubramaniam took strong exception to the observation of the learned Judge that there was no necessity to sell the entire property for meeting his binding debts of Rs. 5,600. According to the learned counsel it was for the father to decide whether he should sell the entirety of the property or only such portion which should be sufficient to meet the binding debts. Though under the Hindu Law a wide discretion is conferred upon the father or the manager to decide upon whether he should execute a sale or a mortgage of the family property for discharging the debts, the law enjoins on the father or the manager to act as a prudent person. The citations already referred to clearly show that it is the duty of the father to act in a prudent manner. If the father alienates an extent of 1.80 acres worth Rs. 25,000 for discharging only a binding debt of Rs. 5,600 and that for a price of Rs. 15,000 it could not be characterised as a prudent transaction. We are therefore of the view that the learned Judge was perfectly justified in coming to the conclusion that the alienation of the entire property would not be considered to be a prudent transaction.
15. We do not think that the learned counsel for the appellant could derive any support from Krishnarajan v. Dorasami, because this case reiteraed the principles of Hindu Law already referred to by us and specifically referred to the decision of the Privy Council in Ram Charan v. Bhagwan Das, that adequacy of consideration is a relevant factor in judging whether the alienation is prudent or not.
16. Mr. Sivasubramaniam raised an alternative contention and sought to file an additional written statement before this Court. He has also filed C.M.P 14159 of 1982 and C.M.P 14160 of 1952 in which it is stated that the property originally belonged to one Kolandasami Gounder. The said Kolandasami Gounder died after the commencement of the Hindu Succession Act, 1956 leaving behind Ammani Ammal his wife and the mother of the first defendant and also the first defendant's brother Veluswami. There was a family arrangement under which the first defendant, his brother Velusami and mother Ammani Ammal dealt with the properties of the deceased Kolandasamy Gounder as owner. Ex. B1 sale deed was executed by Ammani Ammal and the first defendant. Consequently, Ammani Ammal must be held to be entitled to one half of the properties covered by Ex. B1 and the first defendant would be entitled to one half of the ancestral property. If that be so, then, the sale deed ought to have been upheld to the extent of Ammani Ammal's share of one half and 1/6th share of the first defendant. We are not inclined to accept the above written statement and the contention urged before us on the basis of the additional written statement. Admittedly, there was a partition between the first defendant and his brother and under the said partition the property was allotted to the first defendant. The parties proceeded on the basis that the plaint A. schedule property was the ancestral property in the hands of the first defendant obtained by him under partition. The appellant in her written statement pleaded that Ex. B1 sale deed was executed for family necessity and was therefore binding on the plaintiffs. It is now too late in the day for the appellant to shift her stand and state that one half of the plaint A schedule property belonged to Ammani Ammal. Even in the additional written statement it is admitted that there was a partition of the properties between the first defendant and his brother and plaint A schedule property was allotted to the first defendant, but such a partition did not and would not affect the rights of Ammani Ammal. The additional written statement if accepted at this stage would be to permit the appellant to alter the very nature of the defence which she had set up till now. Even D.W 1 has stated in his evidence that Ammani Ammal was added as a party to the sale deed because at the time the transaction was entered into Ammani Ammal stated she had also some right. We do not know under what circumstances Ammani Ammal even if she had right in the property acquiesced in the sons entering into a partition deed. We therefore decline to receive the additional wiitten statement.
17. In the result, we agree with the finding of the learned single Judge that Ex. B1 sale deed is not binding on the 2/3rd share of the minors and is valid to the extent of 1/3rd share of the first defendant and the appellant will be entitled to the refund of the deposit amount of Rs. 6,000 together with interest accrued thereon. The appeal is dismissed. However in the circumstances of the case, there will be no order as to costs in this appeal.
18. However, the appeal has to be allowed with regard to one aspect. The plaintiffs' suit as regards the appellant was confined only to Ex. B1. The consideration of the same was only Rs. 15,000. Consequently, costs should have been awarded against the appellant on a sum of Rs. 15,000 only. However, it is found that costs have been awarded against the appellant on the value of Rs. 26,733.87 which is not correct. This is not opposed to by the learned counsel for the respondent. We therefore direct that costs should be calculated on the value of Rs. 15,000 and not on the higher value of Rs. 26,733.87.
19. As regards the maintenance appeal the only ground that was urged by the learned counsel for the appellant was that there cannot be any personal decree against the appellant. The learned counsel is right in his submission that there cannot be any personal decree against the appellant. We therefore allow the maintenance appeal to the extent that the decree will stand modified in as much as it gives a personal decree for maintenance against the appellant. There will be no order as to costs in this appeal also.
VCS.