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Sital Prasad Singh v. Ajablal Mander

Patna High Court
Jan 30, 1939
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Court of Appeal — Mortgage Suit: Structured Summary of Opinion

Factual and Procedural Background

This is a defendants' appeal from a decree of the learned Subordinate Judge of Bhagalpur in a suit to enforce a simple mortgage dated 21 February 1921. The mortgage had been executed by three adult members of a joint Hindu family (identified in the record as defendant 1, defendant 2 and Deo Narain Singh, since deceased) for themselves and as guardians of various minor members of the family. The mortgage secured Rs. 2,000 at the rate of 12% per annum, compoundable yearly, in favour of Saukhi Mandar (deceased), the ancestor of the plaintiffs.

The stated consideration for the mortgage was the payment of part of the purchase price of property bought on behalf of the defendant family and to pay an antecedent debt and household expenses. Payments were made intermittently and the plaintiffs sued to recover Rs. 6,838-12-0 as principal and interest then due.

The Subordinate Judge held for the plaintiffs but treated the contractual rate of compound interest (12% compoundable yearly) as excessive, awarding simple interest at 12% and decreeing Rs. 4,402. The present appeal was prosecuted by the defendants other than the executants of the mortgage bond. The minor members pleaded that the mortgage was not for "legal necessity."

Legal Issues Presented

  1. Whether the mortgage (or particular part of its consideration) was executed for "legal necessity" or for the "benefit of the estate" such that it binds the joint family property and the minor members.
  2. Whether the part of the mortgage consideration amounting to Rs. 1,425 (applied towards payment for the purchased property) could be regarded as money borrowed for family necessity or was a speculative and risky application of ancestral property.
  3. Whether the contractual interest provision (12% per annum compoundable yearly) was excessive and, if so, what rate/form of interest should be applied in the decree.
  4. Whether Sections 9, 10 and 11 of the Bihar Money-lenders Act applied to the transaction (an issue which invoked the Full Bench decision in 20 PLT 1 and raised questions of construction of sections of the Government of India Act), and whether a certificate should be granted under S. 205 of that Act.

Arguments of the Parties

Appellants' Arguments (Defendants)

  • The Rs. 1,425 portion of the loan which was used to pay for Pareyag Kapri's land could not be described as money borrowed for legal necessity; the purchase was speculative and risky.
  • The plaintiffs failed to prove any real need to purchase the property on behalf of the family and did not prove sufficient, specific evidence of productivity (i.e., precise yields) from the purchased land.
  • There was at least one independent witness called by defendants who asserted the purchased property was not productive.
  • The appellants contended that Sections 9, 10 and 11 of the Bihar Money-lenders Act applied to the transaction.

Plaintiffs' Arguments

  • Plaintiff 1 testified that the land purchased by the defendant family was a productive holding and yielded more paddy than the plaintiffs' contiguous holding; plaintiffs estimated the purchased land (about 15 bighas) would yield roughly 90 maunds of paddy, producing a profit sufficient to cover the interest allowance made by the Subordinate Judge.
  • Plaintiffs asserted the transaction was beneficial to the estate and that the adult members who entered the transaction acted as reasonably prudent managers would act.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
5 PLJ 622 Held that actual compelling necessity is not the sole test; where a transaction is clearly beneficial to the family it may be valid and implied consent exists. Also contains cautionary observations that speculative transactions are excluded. The Court treated its observations as confined to the facts of that case and relied on the proposition that the decision did not establish a universal rule excluding all purchases; it cited the passage that "all transactions of a purely speculative nature would properly be excluded."
7 Pat 798 Authority for the proposition that a manager of a joint family can charge ancestral property by loan or mortgage in case of need or for the benefit of the estate; test is whether a prudent owner would enter into the transaction to benefit the estate. The Court cited it to support the test of prudence and benefit to the estate and to show consistency with earlier decisions endorsing manager's limited power when acting prudently and for family benefit.
17 Pat 549 Explained that the karta is a manager not absolute owner and must act with prudence; prudence excludes speculative or reckless transactions; in exceptional circumstances an alienation to acquire new property may be upheld if all adult members, with knowledge, are convinced of its benefit. The Court relied on this authority to state that legal necessity is not limited to defensive acts and that transactions entered into for family benefit by reasonably prudent managers can be supported by legal necessity.
50 All 969 (Full Bench, Allahabad) Held that "for the sake of the family" or "benefit of the estate" has a wider meaning than mere compelling necessity; an alienation can be supported if beneficial. The Court cited this as supporting a broad view of legal necessity and as consistent with the decisions of the Patna Court in similar matters.
55 All 1 (Full Bench, Allahabad) Related Full Bench authority on the broader meaning of "benefit of the estate"; contained discussion relevant to whether Privy Council decisions overruled earlier Allahabad authority. The judgment was cited among Allahabad authorities that the Patna Court relied upon in supporting a broad view of family-benefit as a test for validating transactions.
57 All 605 (Full Bench, Allahabad) Held that "for the sake of the family" has wider meaning than mere compelling necessity and that earlier Allahabad authority had not been overruled by the Privy Council in 54 All 564. The Court relied on this Full Bench to support its refusal to accept that the Privy Council decision (54 All 564) had undermined the broader Allahabad approach.
54 All 564 (Privy Council) Privy Council held that a mortgage securing a loan to finance a business which was not ancestral was not binding on minor members of a joint family. The Court acknowledged the Privy Council decision but recorded that Full Bench authority (57 All 605) had held the previous Allahabad case had not been overruled; the Patna Court followed its view that Allahabad authority remained persuasive.
17 Pat 168 Wort J. expressed the proposition that jeopardizing existing family property to purchase another property can never be a benefit to the estate; but the full Bench in that case also included Rowland J. who decided on facts. The Court discussed Wort J.'s view, disagreed with its broad form, and treated the observations as not in accord with Patna and Allahabad authorities; it emphasized factual inquiry and prudence as the test.
44 IA 147 (Judicial Committee) Noted in the opinion as stating it is impossible to give a precise definition of "benefit to the estate" applicable to all cases. Used by the Court to support the proposition that no precise or general definition can be laid down and that each case must be decided on its facts.
20 PLT 1 (Full Bench) Full Bench decision binding on the Bench regarding constructional issues arising out of Sections of the Government of India Act as they relate to the Bihar Money-lenders Act. The Bench stated it was bound by this Full Bench decision when considering the appellants' contention about applicability of Sections 9–11 of the Bihar Money-lenders Act, and indicated a certificate under S.205 of the Government of India Act should be granted for the construction question.

Court's Reasoning and Analysis

The Court's analysis proceeded in several distinct steps, grounded in evidential findings and a review of relevant authorities. The reasoning is set out below in the order the Court addressed the issues:

  1. Assessment of the challenged portion (Rs. 1,425) used to pay the purchase price:
    • The Court reviewed the timing and sequence: the three adult members contracted for and purchased Pareyag Kapri's land on 20 February 1921 and on the following day (21 February) the money was borrowed from the plaintiffs and the mortgage executed.
    • The defendants/appellants argued the purchase was speculative and there was no evidence of need; the plaintiffs produced testimony (plaintiff 1) that the purchased holding was productive and yielded more paddy than plaintiffs' own holding, with an estimated yield sufficient to cover the interest charged by the Subordinate Judge.
    • The Court considered the character of the defendants as a joint family, the fact that all adult members joined in the transaction, and that the family retained the purchased land thereafter — facts the Court treated as supporting the inference the transaction was believed by those adults to be for the benefit of the family.
    • The Court rejected the defendants' independent witness evidence as weak and found the learned Subordinate Judge's acceptance of the plaintiffs' evidence justified on the record.
  2. Legal framework — "legal necessity" and the karta's power:
    • The Court deployed controlling principles from prior decisions: the karta (manager) is not absolute owner and must act prudently; prudence excludes speculative, hasty or reckless conduct, but does not confine legal necessity to purely defensive acts.
    • The Court relied on Patna and Allahabad authorities to adopt the test whether the transaction was one a reasonably prudent owner/manager would enter into to benefit the estate.
    • It rejected any categorical rule (such as Wort J.'s broad statement that jeopardizing family property to buy new property can never be a benefit) as inconsistent with the weight of authority and with the necessity of fact-based inquiry.
  3. Application of the legal test to facts:
    • Given the combined factors — evidence of productivity, retention of the purchased land by the family, the transaction being entered into by all adult members, and the family's pattern of increasing holdings in the village — the Court concluded the purchase was financially profitable and thus for the benefit of the estate.
    • On that basis, the Court held that raising money and charging family property to finance the purchase was a transaction a reasonably prudent manager would undertake; therefore, legal necessity was established for the Rs. 1,425 item.
  4. Alternative characterization (antecedent debt vs part of purchase):
    • The Court noted some doubt whether the borrowing was strictly to pay an antecedent debt (Pareyag Kapri was owed Rs. 1,425 on the day the sale deed was executed) or whether the borrowing formed part of the purchase transaction. The Court remarked the point was not pressed by appellants.
    • Crucially, the Court observed that either characterization would sustain the validity of the mortgage: if to pay antecedent debt, the mortgage bound the property; if as part of purchase, legal necessity existed by reason of family benefit.
  5. Interest and statutory objections:
    • The Court recorded that the Subordinate Judge had reduced compoundable contractual interest to simple interest at 12% and entered decree for Rs. 4,402. The Court noted the interest in the decree exceeded the principal by Rs. 402.
    • Appellants contended that Sections 9, 10 and 11 of the Bihar Money-lenders Act applied; the Bench stated it was bound by a Full Bench decision (20 PLT 1) on related construction issues and indicated the question required construction of sections of the Government of India Act, so a certificate under S.205 of that Act should be granted.
  6. Concurring reasoning (Manohar Lall, J.):
    • Manohar Lall, J. agreed and emphasized that the central question was factual — whether mortgaging ancestral property to pay the purchase price was speculative and risky — and must be decided on the findings of fact and circumstances of the case.
    • He also addressed Wort J.'s contrary observation, considered it overbroad given authorities, and adopted the view that each case must be judged on its facts with prudence as the controlling standard.

Holding and Implications

The Subordinate Judge's decree was upheld.

Implications and direct consequences (as stated in the opinion):

  • The mortgage in question was held to be valid and binding on the family property because the transaction that gave rise to the borrowing (including the Rs. 1,425 applied to the purchase) was found to be for the benefit of the estate and such as a reasonably prudent manager would enter into.
  • Even if the borrowing were regarded as for payment of an antecedent debt, the Court stated the mortgage would in any event bind the property.
  • The Subordinate Judge's measure of interest (simple interest at 12% rather than 12% compoundable yearly) stands as the practical financial outcome endorsed by the Court; the decree so entered resulted in a total in which interest exceeded principal by Rs. 402 as noted by the Court.
  • The appellants' contention about the applicability of Sections 9–11 of the Bihar Money-lenders Act was considered in light of binding Full Bench authority (20 PLT 1); because the point involves construction of provisions of the Government of India Act, the Bench indicated that a certificate under S.205 should be granted for resolution of the construction question.
  • No broader or novel legal rule was enunciated; the Court applied established tests (benefit to the estate and prudence of a reasonable manager) and resolved the appeal on the facts presented.

Note: The summary above is confined to the content and conclusions expressly stated in the provided opinion and does not add information beyond that text.

Show all summary ...

Harries, C.J:— This is a defendants' appeal from a decree of the learned Subordinate Judge of Bhagalpur decreeing the plaintiffs' claim in a mortgage suit. The plaintiffs brought the suit out of which this appeal arises to enforce a simple mortgage dated 21st February 1921, which had been executed by defendant 1 for himself and as guardian of his minor sons, defendants 4 to 7, by defendant 2 for himself and as guardian of his minor son, defendant 8, and by Deo Narain Singh, since deceased, for himself and as guardian of his minor sons, Anant Lal Singh and Sital Prasad Singh, defendant 3. The mortgage was for a sum of Rs. 2000 which was to carry interest at the rate of 12 per cent per annum compoundable yearly. The mortgagee was Saukhi Mandar, deceased father of plaintiff 1 and grandfather of plaintiff 2 and great-grandfather of plaintiffs 3 and 4. The consideration for this mortgage, namely Rs. 2000, was required for the payment of part of the purchase price of certain property purchased on behalf of the defendant family and to pay an antecedent debt and house, hold expenses. Certain payments were made from time to time and the suit was brought to recover Rs. 6838-12-0 being the amount of principal and interest then due. The learned Subordinate Judge held that the plaintiffs were entitled to a mortgage decree, but he was of opinion that the rate of interest, namely 12 per cent per annum compoundable yearly, was excessive. He allowed simple interest at 12 per cent per annum and accordingly decreed the claim for Rs. 4402. Against this decree the defendants other than the executants of the mortgage bond have preferred the present appeal. The defendants form a joint Hindu family and by way of defence it was pleaded by the minor members of the family that the mortgage bond in suit was not for legal necessity and such has been the contention before us today.

2. In the first place it was argued that the part of the consideration for this mortgage, viz. Rs. 1425, which was applied towards the payment of the purchase price of property bought by the family, could not possibly be regarded as money borrowed for legal necessity. It appears that on the day before this mortgage was executed, i.e the 20th February 1921, the three adult members of the family, who executed the mortgage deed, purchased certain property from Pareyag Kapri in Mauza Kenuar and Rs. 1425, part of the money borrowed from the plaintiffs, was applied in paying Pareyag Kapri for this property. Both the sale deed and the mortgage were registered on the same day, namely the 23rd February 1921. It has been urged on behalf of the defendant-appellants that the plaintiffs wholly failed to prove that there was any need whatsoever for the family to purchase this property and that mortgaging the ancestral property in order to pay the purchase price was a speculative and risky transaction. The learned Subordinate Judge held that it was a transaction beneficial to the estate and family and such as a reasonably prudent manager of an estate would enter into. Before us it has been contended that there is no evidence whatsoever to support this finding. Plaintiff 1 himself gave evidence and stated that the holding purchased by the defendant family was a productive holding and yielded more paddy than did the plaintiffs' own holding which was contiguous to it. According to the plaintiffs, their own land yielded 4 to 5 maunds of paddy per bigha. If the purchased property was more productive, then it is clear that it would yield some 90 maunds of paddy at the rate of about 6 maunds per bigha, the purchased property being 15 bighas odd. If 90 maunds of paddy could be raised from the purchased land, then it would yield approximately a profit of about Rs. 180. Such would be more than sufficient to cover the interest at the rate allowed by the Sub ordinate Judge. Counsel for the appellants argued strenuously that the Court should not rely upon a general statement such as that made by the plaintiffs in this case. He has argued that the plaintiffs should adduce definite evidence of the actual amount of produce raised by the defendants yearly from the land in suit. Clearly the plaintiffs can never be in a position to give such evidence. All the plaintiffs can do is to produce the best evidence they can to show that the purchase of the property by the defendant family was a transaction which at the time it was entered into was beneficial to the estate.

3. In the present case they have shown that the produce of the land is more than sufficient to pay the interest; but that is not all. The transaction was entered into by the three adult members of the family, and a Court may safely assume that these three members would not act unreasonably. Clearly, they must have thought at the time that the transaction was for the benefit of the family, and it appears to me that subsequent events have abundantly established this. The family has retained this property and actually owns it today. In these circumstances, it is very difficult for any Court to hold that the transaction was not for the benefit of the estate. Further, the defendants held land in this village and at the time they entered into the transaction under discussion they also purchased shares in the village from other persons. In short, the defendants were increasing their holding in this village, presumably, with a view to making it more productive and economic. In those circumstances, the learned Judge accepted the plaintiffs' contention that this transaction was for the benefit of the family. The only evidence adduced by the defendants is hardly worthy of notice. One so-called independent witness was called to state that the purchased property was not productive. The witness held property near by, and when he was asked how many maunds of paddy he raised per bigha, he wanted the Court to believe that he did not know. When a witness of that kind is put forward, it is impossible to say that the learned Judge was wrong in rejecting the defendants' evidence. Reliance has been placed by counsel for the appellants upon a case of this Court, 5 PLJ 622.1 In that case it was held that actual compelling necessity was not the sole test of the validity of an alienation by a manager acting without the express consent of the other members and a Bench laid down that when it could be shown that the transaction was one which was clearly beneficial to the interests of the family as a whole, such was valid, and the consent of the other members would be implied though not expressly given. In this particular case it was eventually held that a purchase of property was not beneficial to the estate and that money borrowed to finance the purchase was not borrowed for legal necessity. Certain observations of Dawson Miller C.J have been relied on by the appellants; but in my view those observations must be confined to the particular facts of the case. At page 627 the learned Chief Justice observed:

It is not desirable to lay down any general proposition which would limit and define the various cases which might be classed under the term beneficial as above used. It is clear however that all transactions of a purely speculative nature would properly be excluded.

4. The Court appears to have thought upon the evidence that the transaction was a risky and speculative one and nowhere does the learned Chief Justice lay down that facts such as established in this case do not prove that the transaction was beneficial to the estate and the family as a whole. This case to which I have referred was cited in 7 Pat 7982 where a Bench of this Court held that a manager of a joint Hindu family has power to charge ancestral property by loan or mortgage in case of need or for the benefit of the estate. The test in each case is whether it was a transaction into which a prudent owner would enter in the ordinary course of management in order to benefit the estate. In this case the case in 5 PLJ 622 was closely considered and the effect of the decision discussed. It is pointed out that the earlier case laid down no general proposition and was a decision upon the facts of that particular case. The question has been very recently considered by this Court in 17 Pat 5493 in which it was held that the karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law givers however could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he must act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct. The manager is not allowed to enter into any transaction which is speculative or fraught with risks or which may involve a possibility of loss to the family and the Court will not encourage him either to part with the joint family property or to encumber it merely in order to increase the immediate income of the property, because a prudent person will not sacrifice a certain and stable income in favour of the mere prospect of a better income. In exceptional circumstance however, the Court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property, as for example where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirement of the family are convinced that the proposed purchase of the new property is for the benefit of the estate. These authorities make it abundantly clear that this Court does not confine legal necessity to transactions of a purely defensive nature. If transactions are entered into which benefit the family and the estate and are such as a reasonably prudent man would, enter into, such can be said to be supported by legal necessity. The view taken by this Court has been consistently held of late by the Allahabad High Court—see the Full Bench decisions in 50 All 9694 and 55 All 1.5 These two cases were later considered in the lull Bench case in 57 All 6056 in which it was especially laid down that the expression “for the sake of the family” occurring in the text of the Mitakshara or the expression “benefit of the estate” has a wider meaning than mere compelling necessity, and is not limited to transactions of a purely defensive nature. The Full Bench further held that the authority of the case in 50 All 969 had not been overruled or shaken by the Privy Council decision in 54 All 564.7 In this latter case their Lordships of the Privy Council held that a mortgage securing a loan to finance a business which was not ancestral was not binding on the minor members of the joint family and Mukerji J. in his judgment in 55 All 1 at p. 5 was of opinion that this decision of their Lordships overruled the earlier Allahabad case, 50 All 969. Sulaiman, C.J and King J. took a contrary view and this latter view was accepted in the most recent Full Bench case, 57 All 605.

5. A contrary view appears to have been taken by Wort J. in 17 Pat 168.8 He held that although no precise definition of what is a benefit to the joint family estate can be given, it is well established that jeopardizing a property, which is already the property of the joint Hindu family, for the purpose of purchasing another property can never, under any circumstance, be considered a benefit to the estate. Rowland J. who was also a member of the Bench, did not agree with the proposition laid down by Wort J. In that particular case the transaction was such as no reasonably prudent man would have entered into, and Rowland J. held upon that ground that the transaction was not supported by legal necessity. In my judgment the observations of Wort J. are not in accordance with the authorities of this Court supported as they are by the decisions of the Allahabad High Court to which I have referred, which have laid down that an alienation of family property may be supported by legal necessity if the transaction was at the time when it was entered into for the benefit of the family and was such as a reasonably prudent man would enter into at that time. In the present case, as I have stated, all the adult members joined in this transaction. The property purchased was in the village in which the family already owned property, and from the evidence of the plaintiff coupled with the fact that this property has been retained, it is clear that the purchase was from the financial point of view a profitable transaction. It was a transaction for the benefit of the estate and family and eminently one which a reason, ably prudent manager would enter into. In these circumstances, the adult members of the defendants' family were entitled to raise money and to charge the family property with the repayment of that money. That being so, the learned Judge was right in holding that legal necessity had been established for this item.

6. I have some doubt whether the plaintiffs were hound to prove legal necessity with regard to the item which I have discussed. The adult members of the family negotiated with Pareyag Kapri for the purchase of his property, and on 18th February 1921 had made a contract with him and paid a certain sum as earnest money. The sale deed was executed on 20th February 1921, and on that day the family owed Pareyag Kapri a sum of Rs. 1425. On the following day this money was borrowed from the plaintiffs and the mortgage executed. It may be argued that this mortgage was entered into in order to obtain money to pay an antecedent debt, and if that be the true view of the transaction no question of family necessity arises. On behalf of the appellants however, it could be contended that the borrowing was in fact a part of the transaction of purchasing this property. This aspect of the case however was not pressed before us. The matter is not of great importance, because, however the borrowing is regarded, the mortgage, in my view, was a valid one which was binding on the property. If the money was borrowed to pay an antecedent debt, clearly the mortgage bound the property. On the other hand, if the borrowing was part of the transaction of purchasing the property, then the mortgage is a valid one for legal necessity by reason of the fact that the transaction was one which was beneficial to the estate and the family and was one which a prudent manager would have entered in to. No argument has been addressed to us upon the evidence as to the other item which goes to make up the total sum of money advanced. The learned Judge held that legal necessity was established for this item and with that view I agree. The interest given in the decree exceeds the principal sum by Rs. 402. It has been con-tended by the appellants that Sections 9, 10 and 11 of the Bihar Money-lenders Act, apply to this case; but this Bench is bound by the Full Bench decision in 20 PLT 1.9 This point involves a construction of various Sections of the Government of India Act, and that being so, it appears to me to be a fit case in which a certificate should be granted under S. 205 of that Act.

Manohar Lall, J.:— I agree. The very nature of the question, which requires to be answered in the present case, namely whether the mortgage of the ancestral property of the defendants in order to pay the purchase price of Pareyag Kapri's land was a speculative and risky transaction, indicates to my mind that this is eminently a question of fact and must be answered on the findings of facts and circumstances of this particular case. This view is in accord with the quotations from several judgments of this Court given by my Lord the Chief Justice in the judgment just delivered. But the learned advocate for the appellants relied strongly on the observations of Wort J. in 17 Pat 168 where the learned Judge states at p. 172:

I have no hesitation in going so far as to say that jeopardizing a property, which is already the property of the joint Hindu family, for the purpose of purchasing another property can never under any circumstances be considered a benefit to the estate.

7. The facts found in that case were that the money was taken by a joint family on the security of a mortgage bond in order to obtain a usufructuary mortgage of certain property. The final Court of fact had found that the income of the property which the ancestors of the defendants took in usufructuary mortgage from the plaintiffs was Rs. 60 per annum only out of which Rs. 9 was payable as Government revenue with the result that the profit was only Rs. 51 a year excluding the collection charges: but the interest payable to the mortgagees was about Rs. 75 a year calculating at a simple rate although interest in arrears was agreed to be compounded. The learned Subordinate Judge put the question to be answered in this form: “the question is whether on these facts the transaction was for the benefit of the joint family.” He after a review of the entire evidence in the case came to the conclusion that the trans, action appeared on the face of it to be of a speculative character and disadvantageous to the interest of the joint family. I am of opinion, therefore, that it was not necessary for Wort J. to lay down the proposition in the broad form which is enunciated in the quotation referred to, because the finding of fact was quite sufficient to dispose of the appeal. But as the observation in quotation is couched in a general form I, with great respect, give my reasons why I do not agree with it. In the very decision of the Judicial Committee referred to by the learned Judge at p. 171 of 44 IA 14710 it is stated that in their Lordships' view it is impossible to give a precise definition of it (benefit to the estate) applicable to all cases. In the cases of 5 PLJ 622 also referred to by Wort J., the learned Chief Justice at p. 627 states:

It is not desirable to lay down any general proposition which would limit and define the various cases which might be classed under the term beneficial as above used. It is dear however that all transactions of a purely speculative nature would properly be excluded.

8. In my opinion these two authorities amply justify the view that it is impossible to lay down any hard and fast rule as to what should be and what should not be regarded as a purely speculative transaction in a particular case. In every case the Court of fact will consider prominently and accurately whether the transaction which is sought to be enforced in a particular case was for the benefit of the estate and this must be decided not from any a priori arguments but upon the facts of each case. I agree with the doubting opinion expressed by Rowland J., that it is impossible to endorse the proposition that it can never be beneficial to an estate to acquire a fresh property by hypothecating ancestral property for the purpose. It is to be noticed that Rowland J. was able to dispose of the case upon the clear findings of facts in the case which were that the trans, actions in question were not such as a prudent manager would or should have entered into on behalf of the family estate.

N.S/R.K

9. Order accordingly.