N.J Wadia, J.:— This appeal arises out of a suit filed by respondents 1 to 4 for a declaration that the sale deed of 2nd October, 1925, executed in favour of appellant, defendant 1 by the plaintiffs' uncle Ahilaji, defendant 2, and the plaintiffs' mother was not binding upon them and for possession of their half share in the land together with mesne profits. The land was sold for Rs. 2000. The trial Court held that defendant 1, appellant, had failed to prove that there was legal necessity for the sale or that he had made due inquiries as to such necessity and acted honestly, and accordingly made a decree in favour of the plaintiffs. This decree was confirmed in appeal by the Assistant Judge of Ahmednagar, and the alienee defendant 1 has come to this Court in second appeal. The questions whether there was legal necessity for the alienation and whether there was bona fide inquiry on the part of the alienee were both questions of fact on which the two Courts have come to concurrent findings against the appellant. Those questions cannot therefore be gone into by this Court.
2. The first point urged before me in the appeal is that as the lower appellate Court has found that out of the consideration of Rs. 2000 there was legal necessity to the extent of Rs. 912-2-6 which represented a debt due from defendant 2 and the deceased father of the plaintiffs to the Co-operative Society of Pimpalwadi on an award decree, the appellant was at least entitled to a direction that the plaintiffs should get possession of the land subject to their paying their proportionate half share out of this sum of Rs. 912-2-6. This contention was not raised either in the trial Court or in the lower appellate Court, and on the view which has been taken by the trial Court, which was not challenged in the appeal before the Assistant Judge, it seems to me clear that the appellant is not entitled to any such equitable relief. The learned Assistant Judge says in his judgment that the trial Court considered that there was legal necessity to the extent of Rs. 912-2-6. But this does not appear to be a correct statement of the finding of the trial Court. The trial Judge found that this sum of Rs. 912-2-6 which was due to the co-operative society on the award decree represented an antecedent family debt which existed at the date of the sale. But he goes on to say that the existence of this family debt was not by itself sufficient to establish legal necessity for the alienation, and he found that there was nothing to show that though this debt existed there was any pressure brought upon defendant 2, against whom the award had been made, to pay it. He also found that there was nothing to show that the debt could not have been paid in any other way except by sale of the property. According to the learned Judge at that date the family possessed considerable property and he therefore came to the conclusion that defendant 2 could have raised the sum of Rs. 912-2-6 by a loan or by mortgage of immovable property or even by a promissory note. He also found that the alienee, defendant 1, had not acted honestly and in good faith, nor had he paid a fair price for the land. According to the learned Judge's finding the actual consideration was only Rs. 1500 though it was represented to be Rs. 2000, and the Judge further found that Rs. 1500 was not a fair price for the land. On these findings the appellant is certainly not entitled to the equitable relief which he asks for. The next point taken before me is that no order for mesne profits could have been made in this suit as only joint possession had been awarded to the plaintiffs. I see no reason why mesne profits should not be awarded in a case like this. It has been found that the plaintiffs' half share in the land was sold without any necessity. It is clear that the plaintiffs have been kept out of enjoyment of their joint half share in the suit property and that the defendant has wrongfully enjoyed the profits of their share. That being so, the order for, mesne profits is justified. The only other contention urged was that Article 44 of the Limitation Act, applied and that the suit was barred as plaintiff 1 was admittedly 22 years of age when the suit was filed. The alienation in this case, however, was made by defendant 2 as the manager of the family. The fact that the plaintiffs' mother joined in the alienation or that she described herself as guardian would not make any difference to the position. The family being joint, as has been found by the trial Court, the mother could not be the legal guardian of the property of her minor sons, and Art. 44 does not apply to a suit to set aside an alienation of a minor's share by the managing member of the coparcenary. The appeal is dismissed with costs.
Judgment of Letters Patent Bench
3. Broomfield, J.:— We are concerned in this Letters Patent appeal with the equities arising when joint family property has been alienated without legal necessity and the alienation is set aside at the suit of persons interested in the property who were not parties to the alienation. The facts, so far as it is necessary to mention them, are these. There was a joint Hindu family consisting of the plaintiffs, their father Hari and his younger brother Ahilaji. It appears from the entries in the record of rights that in the year 1921 Hari mortgaged the two survey numbers, which are the subject of litigation as security for a loan taken from the Pimpalwadi Co-operative Credit Society. Hari and his brother Ahilaji had an account with this society from the year 1918. In 1922 Hari died. In 1924 the society obtained an award decree against Ahilaji. In October 1925, Ahilaji and the plaintiffs' mother together sold the two survey numbers for an ostensible consideration of Rs. 2000 to Madbavrao, defendant 1, the present appellant. It has been found by the Courts of fact that the real consideration was Rs. 1500 only. It has also been found that there was no legal necessity for the sale but that there was a debt to the co-operative credit society amounting to Rs. 912-2-6. This debt was binding on the family and the plaintiffs' share of it would be one-half.
4. The suit from which this appeal arises was brought by the plaintiffs for a declaration that this sale was not binding on them and for recovery of possession of their half share with mesne profits from the date of suit. The trial Court decreed the suit substantially but ordered joint possession along with defendant 1. Mesne profits were awarded from the date of suit and the plaintiffs were ordered to pay the sum of Rs. 456-1-3 to defendant 1, this being one-half of the debt to the co-operative credit society discharged by defendant 1 after his purchase. There was an appeal by defendant 1. The plaintiffs did not cross-appeal as to the order for payment of this money. The District. Court confirmed the decree, which was also confirmed in second appeal by N.J Wadia J. Before that learned Judge a new point was argued on behalf of defendant 1 that the delivery of possession to the plaintiffs ought to have been made subject to payment of the sum of Rs. 456 odd. That contention was not accepted by N.J Wadia J. The first and principal contention of Mr. Joshi who appears for appellant-defendant 1 before us is that the decree should have been in this conditional form. His second point, which is more or less consequential, is that mesne profits should have been ordered to be paid not from the date of suit but from the date of payment of the sum of Rs. 456 odd by plaintiffs to defendant 1.
5. In the course of the argument we have been referred to numerous cases. We propose to mention only those which have a mate, rial bearing on the circumstances of this case. (We shall not discuss, for instance, such cases as 54 I.A 791, where the alienation has been held to be good and no question of the equities on setting aside an alienation therefore arises.) In 2 I.A 72 property was in possession of a Hindu widow under a will of her husband by which she had merely a limited estate. She sold part of the property for Rs. 41,000 of which Rs. 14,000 were devoted to pay off a mortgage on the property. The decision of the High Court, which was affirmed by the Privy Council, was that there was no legal necessity for the sale, which therefore had to be set aside, but that the plaintiffs were only entitled to be put in possession on payment to the purchaser of the sum of Rs. 14,000 which had been used to pay off a mortgage subsisting on the estate. In the case before us, the fact that the suit property was mortgaged has not been referred to in any of the judgments. However, it was not necessary to mention it except in connexion with this particular point which does not seem to have been argued until the case came before N.J Wadia J. There is an extract from the re-cord of rights which mentions that both the survey numbers in question were mortgaged to the Pimpalwadi society in 1921, and we see no reason why this evidence should not be accepted. In that case the payment of this money to the society by defendant 1 had the effect of freeing the property from an encumbrance and 2 I.A 7 is an authority directly in point. 52 All. 3913 was a case of a sale of joint family property by the father and manager of the family. The sale was found not to be justified by legal necessity. Nevertheless the recovery of possession by the sons and grandsons from the purchaser was made conditional on repayment of that part of the consideration for which legal necessity was established. The facts therefore were closely similar to those of the present case. It has been pointed out that the liability of the plaintiffs to make good to the vendee that part of the consideration found to be for necessity was not disputed in the argument of the case. But that is obviously no reason for holding that the proposition is not a sound one.
6. 24 Bom. L.R 4934 was a case of a sale by a Hindu widow. The circumstances were somewhat peculiar as she died shortly after the sale and the greater part of the consideration money was still intact. A sum of Rs. 375 had been spent on her obsequies. This was a debt binding on the family and there was no dispute that on setting aside the sale, which was without legal necessity, the heirs had to repay this money. The question which came before this Court in the appeal was whether they were also bound to repay the rest of the purchase money which had not been spent, and it was held that under the circumstances the purchaser was entitled to receive back the whole of the consideration. Macleod C.J said (p. 495):
If it has been proved that a sale by a widow having a limited interest, has benefited the estate by the payment of debts which were binding on it, although the amount paid may not amount to the whole of the consideration money received for the property sold, the Court, when it sets aside the sale, will direct payment to the alienee to the extent of the benefit received by the estate, and it must follow that if the consideration money for the sale is found intact at the death of the widow, the estate has benefited to that extent, so that if the reversioner after the widow's death wishes to have the sale by her set aside, he can only succeed if he restores the money.
7. In other words the reversioners were not entitled to get back the land and at the same time keep the price of it. That was another case in which the Court made the order for delivery of possession conditional on repayment of part of the consideration. Another case of a sale by a Hindu widow is 24 Bom. L.R 3865, It was held there that on the setting aside of an unjustified alienation the person dispossessed was entitled to sums paid by him towards mortgages binding on the estate and also for reasonable improvements to the land. The record here does not show the precise form of the decree. The only other case that need be mentioned is 33 Bom. L.R 1046 a decision of Baker J. This again is a case of an alienation by a Hindu widow. She was acting as guardian; of her minor sons and she mortgaged the-family property and subsequently sold it partly for the purpose of paying off the mortgagee. It was held that the sale deed should be set aside on the plaintiff paying to the purchasers the sum of Rs. 330 which alone was justified by family necessity. Recovery of possession was made conditional on payment of the sum fixed to the defendants. Mr. Gupte who appears for the respondents has not cited cases on this point. He has drawn our attention to the fact that N.J Wadia J. was of opinion that in the circumstances of the case no equities arose in favour of the purchaser. For this view two reasons have been given: the first is that there was no necessity for the sale, and the second is that defendant 1 had not acted in good faith because he tried to make out that the binding debts were more considerable than they were and also because Rs. 1500 was not a fair price. With respect we think that the first part of the reasoning is hardly relevant. If there had been legal necessity for the sale it could not have been set aside at all and there would have been no question of equities arising in favour of the purchaser. The foundation for N.J Wadia, J.'s view that the purchaser was not acting honestly is to be found in para. 10 of the trial Court's judgment:
Nor can he be said to have acted honestly and in good faith, and to have paid a fair purchase price. He paid only Rs. 1500, but sought to make it appear that the consideration was Rs. 2000; and he got up a story as to the existence of antecedent debts, due to himself and his relative Aba, in order to make it seem that the entire amount of the consideration was necessary for liquidation of antecedent family debts. Furthermore, the land conveyed is of good quality and is extensive; and if the several transactions relating to immovables in the village, admitted by Aba (Ex. 33), can be regarded as the criterion for the assessment of the value of land in the village, the sum of Rs. 1500 cannot be regarded as a fair price for the suit lands.
8. But it does not appear that there is any definite finding that Rs. 1500 was an in-adequate price for the land. The finding of the learned Subordinate Judge is merely hypothetical. On the whole, we can see nothing in the circumstances of the case which make it an exception to what appears to be the ordinary rule. It has been ordered by the Courts below that plaintiffs are to pay this sum of Rs. 456 odd to defendant 1. There has been no appeal as to that. Even if the Courts below had not ordered payment of this sum, we should, on our view of the authorities on this point, have been prepared to order the payment. The only question therefore is whether there should be a bare order for payment of the money or whether the recovery by the plaintiffs ought not to be made conditional on the payment. We think that the proper order to make is that the plaintiffs must pay this money before they recover possession. Then there is the point as to mesne profits which have been ordered to be paid from the date of the suit. It has been held in several cases (we were referred to 48 Bom. 4287 and 46 Mad. 8158) that mesne profits in a case of this kind should be made payable from the date of the suit. That probably is the general rule. But in 33 Bom. L.R 9419 the learned Chief Justice stated the position to be that where the plaintiff sues to set aside an alienation, whether it be a sale by a Hindu widow, manager of a joint family or guardian of a minor, he may either ask for an order restoring the parties to their original position or he may merely ask for recovery of possession from the date of the suit. In the former case the Court is in a position to make such order as is just and equitable, and to provide that the plaintiff recovers the land with mesne profits from the date from which he was dispossessed. In that case, however, the defendant purchaser would be entitled to get back his purchase money with interest. If, on the other hand, the plaintiff merely desires to recover possession of the land and does not offer to repay the purchase money to the defendant, he is entitled to an order for recovery of possession with mesne profits only from the date of suit. It should be pointed out that this was a case where the alienation was entirely unjustifiable and there was no question of the refund of any part of the consideration.
9. None of these cases, however, was a case where the Court had made a conditional order. That is to say in none of the cases was the plaintiff found to be entitled to recover possession only on payment of a certain sum to the other party. From the point of view of mesne profits it is clear that must make all the difference. 37 Mad. 43510 was a case of this kind. There the managing member of a joint Hindu family sold family property for a consideration of which part was found to be binding on the family. A suit was brought by the other member of the family to recover his share of the property from the alienee. It was held that the proper decree to make in such a case is to decree to the plaintiff his share of the property sold on condition that he pays to the defendant a proportionate share of the consideration found binding, together with mesne profits from the day that he deposits the amount into Court, and gives notice thereof to the defendant. In the judgment no reason is given for the order as to mesne profits but the reason is sufficiently obvious. If the plaintiff's right to possession does not arise until the payment of a certain sum by him to the party in possession, the possession of that party obviously cannot be called wrongful and therefore there can be no question of mesne profits until the payment is made. We think that in this case also mesne profits are pay able not from the date of suit but from the ‘date of deposit of the money by the plaintiffs.
10. We must, therefore, make the following modifications in the decree of the trial Court: The first sentence of the decretal order will stand as it is. In the second sentence, that as, after the words “the plaintiffs be put into joint possession of the properties with defendant 1” the following words must be inserted: “subject to their first paying him the sum of Rs. 456-1-3.” In the sentence next after that the words “from suit date” must be deleted and for them the following words must be substituted: “from the date on which the plaintiffs deposit the amount in Court and give notice thereof to defendant 1.” The last sentence of the decretal order should be deleted as being now unnecessary.
11. As regards costs, in view of the course of the litigation, we think the proper order to make will be: Plaintiffs to get two-thirds of their costs from defendant 1 in the trial Court and in the Courts of first and second appeal. Plaintiffs must pay the costs of defendant 1 in this Letters Patent appeal.
12. Decree modified.