PETITIONER:
GANGADHARAN
Vs.
RESPONDENT:
JANARDHANA MALLAN & ORS.
DATE OF JUDGMENT: 10/05/1996
BENCH:
VENKATASWAMI K. (J)
AHMADI A.M. (CJ)
MANOHAR SUJATA V. (J)
CITATION:
JT 1996 (5) 82 1996 SCALE (4)537
ACT
HEADNOTE
JUDGMENT
JUDGMENTK.VENKATASWAMI, J.
Aggrieved by the judgment of the High Court of Kerala at Ernakulam in Second Appeal No.75/77 dated 19.7.77, this appeal by special leave has been preferred by the first defendant in the said suit, namely O.S. No. 27/67 on the file of Subordinate Court, Irinjalakuda. The said suit was filed by the respondent nos. 1-5 along with one Ramanathan who died pending appeal before the District Court for partition and separate possession of their 6/8 share in the property, namely, 66 cents with building thereon in Kodungallur (Kerala). The appellant (first defendant) was the purchaser of the suit property from the father of the plaintiffs (respondent nos. 1-5) under sale deed dated 2.4.55 (Ex. P2). The property sold under Ex. P2 was one of the items of the joint family property. When the sale took place, the plaintiffs were minors. After the death of the father and after 12 years of the sale in question the present suit was filed attacking the validity and binding nature of the sale on the ground that the sale was for a grossly inadequate consideration; that there was no pressing need to alienate the property; that the income from other properties of the joint family was sufficient to wipe off the debts if any and that most of the debts for the discharge of which Ex. P2 was executed were bogus in nature. The sale consideration was for a sum of Rs.9,000/-.
The first respondent (appellant herein) resisted the suit by contending that the suit was speculative one, the vendors were obliged to alienate comparatively a small fraction of the family property for the purpose of carrying on the business; that the income from other family properties were not sufficient for discharging the liabilities and that the sale was for adequate consideration.
The trial court after elaborate consideration found that out of sale consideration of Rs. 9,000/- a sum of Rs. 5,750/- factually was utilised to discharge genuine antecedent debts and sale consideration was adequate. Consequently, the trial court upheld the validity of Ex. P2 sale deed and dismissed the suit.
The plaintiffs (respondent nos. 1-5) preferred appeal to the District Court and the learned District Judge also concurred with the findings of the trial court and dismissed the appeal.
The plaintiffs preferred a second appeal to the High Court and the learned Single Judge found that out of sale consideration of Rs. 9,000/-, a sum of Rs. 1,250/-, being part of the sale consideration cannot be treated as a debt as the said amount was left with the vendee to pay the future instalment of ’kuri’subscription. In view of that, the High Court held as follows :
"If as in this case half of the
consideration is to discharge a
debt which is an antecedent debt
and half is not it could not be
said that the alienation was to
discharge antecedent debt. No doubt
the discharge of antecedent debt
was also involved in such
alienation. Therefore, it cannot be
said that in this case the
alienation was effected to pay off
antecedent debt of the father and
as such the alienation is
supportable."
On the question whether there was pressing necessity for the sale of an item of the joint family property, the High Court remanded the case.
Aggrieved by the judgment of the High Court, this appeal has been filed. Learned Sr. Counsel appearing for the appellant submitted that the High Court erred in holding that only half of the sale consideration was utilised to discharge antecedent debt and therefore, the alienation cannot be supported. According to the learned Sr. Counsel if the vendee makes genuine enquiry about the necessity for the sale of the property before the purchase and pays adequate consideration thereafter it was not necessary for him to see the application of the money. In this case according to the learned Sr. Counsel, the learned District Judge has found that the vendee (appellant herein) has made genuine enquiries and satisfied himself regarding the necessity for sale of the lands under Ex.P2, and major portion of the sale consideration has been spent for liquidating antecedent debts. In support of this argument, he cited Sri Krishna Das & Ors. vs. Nathu Ram & Anr. (AIR 1927 PC 37); Ram Sunder Lal & Anr. vs. Lachmi Narain & Anr. (AIR 1929 PC 143);Ram Krishna Muraji vs. Ratan Chand & Anr.(AIR 1931 PC 136); Radhakrishnadas vs. Kaluram (1963 (1) SCR 648) and Smt. Rani & Anr. vs. Smt. Santa Bala Debnath & Ors. (1970 (3)SCC 722).
Learned Sr. Counsel appearing for the respondents while supporting the judgment of the High Court and the reasonings thereon also contended that in as much as the High Court has remanded the matter on the question of legal necessity, this Court may not interfere with that judgment.
We have considered the rival submissions.
The trial court after considering each and everyone of the debts in all amounting to 13 items recited in the sale deed, found that except the debts amounting to Rs. 3,750/- out of total consideration of Rs. 9,000/-, the other amount was proved to have gone into the discharge of antecedent debts binding on the sons. In that view of the matter, the trial court upheld the impugned sale and consequently dismissed the suit.
Before the Appellate Court, it appears that both the parties proceeded on the ground that Ex. P2 was not supported by antecedent debts to the extent of only Rs. 3,250/-. The First Appellate Court observed in paragraph 7 as follows."
"In fact, the appellants’ learned
counsel has accepted the finding
recorded in paragraph 13 of the
judgment that Ex. P2 was not
supported by antecedent debts only
to the tune of Rs. 3,250/-. The 1st
defendant’s learned counsel also
did not make any serious attempt to
show that Ex. P2 is supported in
full by antecedent debts. Both the
parties, therefore, have proceeded
on the ground that Ex. P2 is not
supported by antecedent debts to
the tune of Rs. 3,250/-. The total
consideration is Rs.9,000/-
Again on the aspect of adequacy of consideration, the appellate court has found as follows:-
"Though in the grounds of appeal
the appellants attack the
correctness of the finding that the
consideration shown for Ex. P2 is
inadequate. such a contention was
not urged during hearing of the
appeal. The conclusion reached by
the Court that consideration for
Ex. P2 is adequate ss on the basis
of the Commissioner’s Report. Due
consideration was given to the
income derivable from the property.
I am also in entire agreement with
the Court below that the
consideration for Ex. P2 at the
time it was executed was adequate."
On the other important aspect of legal necessity and enquiry by the purchaser, the lower appellate court observed as follows:
"The lower court has found at the
bottom of page 9 that the father
was a prudent manager and that the
family was not in such an affluent
circumstances as claimed by the
plaintiff. The learned Sub Judge
observes the position of the branch
of Venkiteswara Mallan was
"pitiable". That conclusion is
warranted by the request seen in
Ex. D-3. It is in the above
background we have to view the
debts evidenced by the pronotes.
They had to be discharged;
otherwise interest would mount up.
"Legal necessity does not mean
according to 1971 Supreme Court
1028, "actual compulsion; it means
pressure on the estate which in law
may be regarded as serious and
sufficient". The alienee says he
made due enquiries about the
existence of necessity. The
recitals in Ex. P2 corroborates the
evidence of the existence of
necessity. It is also found that
the consideration for Ex.P2 is
adequate. There is evidence of the
1st defendant making a bonafide
enquiry as to existence of
necessity. What was made was such a
reasonable enquiry as is sufficient
for a prudent man to satisfy
himself of the existence of the
necessity. Thus it can safely be
said that the alienee acted in good
faith."
In the light of findings as extracted above, let us now examine the legal contentions advanced before us. As noticed earlier, the contention of the learned Sr.Counsel for the appellant was that if the purchaser acts in good faith after enquiry, it is not obligatory on his part to make further enquiries into the application of surplus. if any, of the sale consideration. This question does not appear to be res integra any more as it is settled by a number of judgments rendered by Privy Council and approved by this Court. In Krishna Das & Ors. Vs. Nathu Ram & Anr (AIR 1927 PC 37) (supra) (supra) after referring to earlier case in Hunooman Persaud Panday vs. Musamat Babooee (6 MIA 393), the Court held that where the purchaser acts in good faith and after due enquiry and is able to show that the sale itself was justified by legal necessity. he is under no obligation to enquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale. This judgment was referred to with approval in Ram Sunder Lal & Another’s case (supra) where the ratio was laid down in more clear terms. It was held that where the sale of family property by the father was effected for adequate consideration after due enquiry made by or on behalf of vendee as to the legal necessity and legal necessity was proved by vendee to the extent of Rs. 1,744/-at least out of a total price of Rs. 10.767/-, then the mere fact that the vendee after a long interval of time (14 years) was not able to prove conclusively how the surplus was applied by the father is not sufficient ground for setting aside the sale. Again the Privy Council in Ram Krishna Muraji vs. Ratan Chand & Anr. AIR 1(931 PC 136) after referring to the earlier pronouncements quoted with approval a passage from 6 MIA 393(supra) and observed as follows :-
"Their Lordships think that the
lender is bound to enquire into the
necessities for the loan, and to
satisfy himself as well as he can,
with reference to the parties with
whom he is dealing, that the
manager is acting in the particular
instance for the benefit of the
estate. But they think that if he
does so enquire, and acts honestly,
the real existence of an alleged
sufficient and reasonably-credited
necessity is not a condition
precedent to the validity of his
charge, and they do not think that,
under such circumstance she is
bound to see to the application of
the money. It is obvious that money
to be secured on any estate is
likely to be obtained on easier
terms than a loan which rests on
mere personal security, and that
therefore the mere creation of
charge securing a proper debt
cannot be viewed as improvident
management the purposes for which a
loan is wanted are often future, as
respects the actual application,
and a lender can rarely have,
unless he enters on the management,
the means of controlling and
rightly directing the actual
application. Their Lordships do not
think that a bona fide creditor
should suffer when he has acted
honestly and with due caution, but
is himself deceived".(Emphasis
supplied)
Now coming to the decision of this Court in Radhakrishna Das and Anr. vs. Kaluram (1963 (1) SCR 648), this Court after referring to the Privy Council decision observed as follows:
"It is well established by the
decisions of the Courts in India
and the Privy Council 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. In this connection, we
may refer to two decisions of the
Privy Council. One is Sri Krishan
Das Vs. Nathu Ram. In that case the
consideration for the alienation
was Rs. 35,000/-. The alienee was
able to prove that there was legal
necessity only to the extent of Rs.
3,000/- and not for the balance.
The High Court held that the
alienation could be set aside upon
the plaintiff’s paying Rs. 3,000/-
to the alienee. But the Privy
Council reversed the decision of
the High Court observing that the
High Court had completely
misapprehended the principle of law
applicable to a case of this kind.
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
the money paid or advanced by him
unless he enters into the
management himself. This decision
was followed by the Privy Council
in Niamat Rai vs. Din Dayal where
at p. 602 and 603 it has observed:
"It appears from the judgment of
the learned Judges of the High
Court that if they had been
satisfied that the whole of the Rs.
38,400 Paid out of the sale
proceeds was paid in discharge of
debts incurred before the
negotiation of sale, they would
have been of opinion that the sale
ought to have been upheld. With
this conclusion their Lordships
agree, but they are of opinion that
undue importance was attached by
the learned Judges to the question
whether some of the payments made
in discharge of debts incurred in
the interval between the
negotiation of the sale and the
execution of the sale deed. Even if
there had been no joint family
business, proof that the property
had been sold for Rs. 43,500 to
satisfy pre-existing debts to the
amount of Rs. 38,000 would have
been enough to support the sale
without showing how the balance had
been applied, as held by their
Lordships in the recent case of
Krishan Das vs. Nathu Ram."
Both these decisions state the
correct legal position, Mr. Sinha’s
argument must, therefore, be
rejected."
Again in Smt. Rani & Anr. vs. Mrs. Shanti Bala Dev Nath & Ors. (1970 (3) SCC 722), it is observed as follows:
"The onus of proving legal
necessity may be discharged by the
alienee by proof of actual
necessity or by proof that he made
proper and bona fide enquiries
about the existence of the
necessity and that he did that was
reasonable to satisfy himself as to
the existence of necessity".
The Court further observed
regarding legal necessity as
follows :
"Recitals in a deed of legal
necessity do not by themselves
prove legal necessity. The recitals
are, however, admissible
inevidence, their value varying
according to the circumstances in
which the transaction was entered
into. The recitals may be used to
corroborate other evidence of the
existence of legal necessity. The
weight to be attached to the
recitals varies according to the
circumstances. Where the evidence
which could be brought before the
Court and is within the special
knowledge of the person who seeks
to set aside the sale is withheld,
such evidence being normally not
available to the alienee; the
recitals go to his aid with greater
force and the Court may be
justified in appropriate cases in
raising an inference against the
party seeking to set aside the sale
on the ground of absence of legal
necessity wholly or partially, when
he withholds evidence in his
possession.
In view of the findings which, we have already extracted regarding adequacy of sale consideration, substantial portion having gone into the discharge of antecedent debts and enquiries made by the purchaser regarding legal necessity coupled with the, fact that the alienation was challenged after 12 years from the date of alienation, we find no difficulty in coming to the conclusion that the High Court went wrong in upsetting the judgments of the Trial Court as well as the First Appellate Court. Even though the judgments of the Privy Council and of this Court were brought to the notice of High Court, it unfortunately, failed to give due consideration to the ratio laid down in those cases. The High Court simply observed as follows:
"It may not be possible to lay down
any strait-jacketted rule as to
what proportion of the
consideration should be shown to
have been antecedent debt in order
to sustain an alienation by a Hindu
father."
We also do not agree with the contention of the learned Sr. Counsel for the respondents that the High Court was justified in remanding the matter on the question of legal necessity. The purchasers have done their best to prove the legal necessity and substantial portion of the sale consideration went into the discharge of the antecedent debts. The First Appellate Court has given a clear finding on this. Having regard to the long lapse of time when the suit was instituted, challenging the alienation, nothing more could be expected from the purchasers to prove the legal necessity and the application of sale consideration.
In the view we have taken on the facts of this case, it is not necessary in this case for us to consider the correctness of the view expressed by the High Court that the amount reserved for the discharge/payment of future instalments of ’kuri’ subscription would not amount to antecedent debt to bind the minor.
In the circumstances, we allow the appeal, set aside the judgement and decree of the High Court and restore the judgment and decree of the First Appellate Court, dismissing the suit. However, there will be no order as to costs.