BHURA RAM Vs. PEMA

JUDGEMENT

(1.) THE appellants purchased 10 bighas of agricultural land in village Sedhuwali of Hanumangarh tehsil from Gangaram (defendant-respondent) on Phalgun Bad 14, Smt. 2014, corresponding to February 17, 1958, for Rs. 5,500/ -. It was stated in the sale deed that the sale was made because the vendor badly required money for his household expenses. Possession of the land was delivered to the purchasers. Gangaram had an adopted son Pema, who immediately instituted the present suit on May 7, 1958, to avoid the transfer, on the ground that the land was ancestral property and his father Gangaram had made the sale only to deprive him of it because of their strained relations and that, as a matter of fact, the sale was without consideration or legal necessity. Further, the plaintiff took the plea that Gangaram was a man of bad character and was addicted to drinking, so that any debt contracted by him was for an immoral purpose.

(2.) THE purchasers took the defence that the suit property was the self acquired property of vendor Gangaram, that the plaintiff was not Gangaram's adopted son and that there were antecedent debts and other legal necessity for which it became necessary for Gangaram to make the sale. It was pleaded that Gangaram had to repair the house; which was in a dilapidated condition, he required some money for his own maintenance and he had to spend a sum of about Rs. 500/- by way of 'bhat' on the occasion of the marriage of his sister's son Patram. As regards antecedent debts, it was stated that Gangaram owed Rs. 400/- to Udaram, Rs. 2500/- to Birbal, Rs. 200/- to Poora, Rs. 660/- to Baiti and Rs. 1000/- to Bhera and Hazari. It was denied that Gangaram was a man of bad character or was addicted to drinking. Gangaram took almost similar pleas, except that he admitted having taken the plaintiff in adoption and did not give the details of the antecedent debts or the other legal necessity.

(3.) AS has been stated, the purchasers have been able to prove legal necessity only for Rs. 2750/- and not for balance of an equal amount, as the sale was of the entire holding measuring 10 bighas, for Rs. 5500/ -. In a given case, the proof of partial necessity may sustain a sale for a larger amount if it is shown that the money required for the purpose of meeting the legal necessity could not be raised in any other manner or that the residue was quite small. This is so because, as has been stated, the manager of a joint Hindu family has the same responsibilities as the manager of an infant heir and he is not allowed to prejudice the rights of his co-owners except on proof of legal necessity for the transfer. He should therefore guard the joint family property as far as he can and should sell so much of it as will meet the necessity : Baboo Luchmeedhur Singh alias Puchoo Singh vs. Ekbal Ali (14 ). In the instant case, it does not require much argument to say that the sale was justified only for the purpose of raising Rs. 27;. 0/- and the transfer of the whole of the agricultural holding of 10 bighas for Rs. 5500/- cannot be sustained because there is not an iota of evidence to show that it was not possible to sell a lesser portion of that property for equal advantage. AS a matter of fact this was not taken even as a plea or as an argument in the two courts below. It cannot therefore be said that the appellants have discharged the burden of proving the existence of the legal necessity for the sale of the entire property. It may be mentioned that the mere fact that a fair or full price was paid by them for the conveyance, is not sufficient by itself to sustain the transaction, as has been held by their Lordships of the Privy Council in Ravaneshwar Prasad Singh's case (13) referred to above. Another important case is that of Deputy Commissioner of Kheri vs. Khanjan Singh (15 ). The consideration in that case was made up of three parts - firstly, Rs. 7,080/- due under an earlier decree; secondly, interest on that amount subsequent to the decree; thirdly, a fresh advance of Rs. 7,280/- in cash. Their Lordships of the Privy Council found that interest was not payable and there was no evidence for the cash payment of Rs. 7,280/-The sale for Rs. 7,080/- was therefore set aside and the suit was decreed for possession, with mesne profit, the sum of Rs. 7,280/- having been allowed in deduction therefrom.