Baidyanath Prasad and Others vs Kunja Kumar and Others

Narayan, J.—This is a second appeal by the plaintiffs and it arises out of a suit for setting aside an alienation made by a shebait. The property in suit is a raiyati holding having an area of 50.45 acres which had been acquired through purchase by one Madho Prasad in the year 1924. Five years before 1924, Madho Prasad had installed a deity, and this property had been acquired by Madho Prasad for and on behalf of the deity. Madho Prasad died soon after he had acquired this property, and his son Mahesh Prasad succeeded him as the shebait and began to manage the debettar property. In 1936 he sold the lands in dispute to defendants 1 and 2 for a consideration of Ks. 872, there being a stipulation in the document of sale that the vendees will have to pay the arrears of rent in respect of the years 1340 to 1343 fasli. The kebala haB been operative ever since the date of its execution, and defendants 1 and 2 did come into possession of the property.

The present suit was instituted on 10th November 1944, by Baidanath Prasad one of the sons of Madho Prasad, his daughter, his widow and the deity through Baidyanath Prasad, the plaintiff No. if as the shebait. Mahesh Prasad and two other sons of Madho Prasad were impleaded as defendants second party.

The contention was that Mahesh Prasad, who had ceased to be the shebait after December 1943, had transferred the disputed property with-out any legal necessity, and for the inadequate consideration of Rs. 872. It was further alleged that plaintiff 1 had been the shebait since April 1944, with the consent of all the heirs of Madho Prasad.

The defendants vendees took up the usual plea that the transaction was entered into for a. legal necessity and for the benefit of the estates of the deity, and it was further pleaded that the land being situated at a great distance from the residence of the plaintiffs, could not be looked after properly and yielded very little profit.

The Court of first instance, the learned first Additional Subordinate Judge of Bhagalpur, found that there was no necessity for the transaction and that the property had been sold for an inadequate price, and he accordingly decreed the suit. On appeal, the learned Additional District Judge of Bhagalpur disagreed with this finding and held that the sale was a prudent act and that it has benefited the estate of the deity. The findings of fact arrived at by the learned Additional District Judge may be summarised as follows:

(1) The real consideration foe the sale was Rs. 1700 and this was an adequate price for the property; (2) The land is situated at a place which is "almost inaccessible during the cultivation season" and the Shebait or the heirs of the late Madho Prasad had consequently great difficulty in managing the property; and (3) With the amount which the shebait got as sale proceed he purchased another property for the deity, and this act of the shebait should be regarded as a prudent act, and the estate of the idol would be deemed to have been benefited by it.

These findings are binding on us, but the learned advocate appearing for the plaintiffs-appellants has relied on the observations of their Lordships of the Privy Council in the well-known case of Palaniappa Ghetty v. Sreemath DevasiJcamony Pandara Sannadhi A.I.R.1917 P.C. 33 to the effect that the preservation of the estate from " extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would be regarded as benefits to the estate. It is argued that judged by this standard it cannot be held in this case that the transaction had been entered into for the benefit of the estate. This Privy Council case and certain other eases are authorities for the view that the power of a shebait or a mahanth to alienate dehottar property is analogous to that of a manager for an infant heir. The words of Knight Bruce L.J. in the case of Hanooman Persaud Pandey v. Mt. Bahooee Munraj Koonweree (1856) 6 M.I.A. 393 have been quoted very often as indicating the circumstances under which a manager of an infant''s estate can charge that estate, and they were also quoted by Lord Atkinson in Palaniappa Ghetty''s case AIR 1917 P.c. 33 . But the passage in the judgment of his Lordship on which the learned advocate for the appellants has placed so much reliance should be considered along with the other observation of His Lordship that it is impossible to give a precise definition of the expression "benefit to the estate, so that it may be applicable to all cases, and His Lordship has said that he does not attempt to give any precise definition of the expression. There has-! undoubtedly, been a conflict of opinion as to the meaning of the words "benefit to the estate," and, in some cases it has been held that a transaction, to be for the benefit of the estate, must be of a defensive nature. But the Pull Bench of the Allahabad High Court in Jagat Narain and Another Vs. Mathura Das and Others after reviewing the previous authorities, came to the conclusion that there was nothing in the remarks of their Lordships; of the Privy Council to indicate that an act, for '' which the character of legal necessity or benefit'' of the estate can be claimed, must necessarily; be a defensive act, something undertaken for the protection of the estate already in possession,; and not an act done with the purpose of bringing fresh property into possession. The Pull Bench agreed with the view which had been taken by a Division Bench of that Court in Jado Singh and Others Vs. Natthu Singh and Others in which case it was said that it was impossible to give a precise-definition as to what is of such benefit to the estate as will support the sale of joint ancestral property, and, what I regard as very important for our purposes in this case, their Lordships of the Allahabad High Court had pointed out in Jado Singh and Others Vs. Natthu Singh and Others that the term may be held to apply to such a transaction as the sale of inconveniently situated, encumbered and unprofitable property and that the purchase in its stead of; other property was undeniably a sound investment. I think these observations are fully applicable to the facts of the present case before us. The Allahabad High Court had in Jado Singh''s case A.I.R.1926 ALL. 51l referred to two cases of this Court Sadhu Saran Prasad v. Brahmdeo Prasad AIR 1921 pat 99 and Kumar Kalika Nand Singh and Others Vs. Kumar Shiva Nandan Singh and Others, Besides these two cases of this Court there are others in which this question has been fully discussed, and I think, the point raised is concluded by the authorities reported in Sital Prasad Singh v. Ajablal Mander A.I.R.1939 Pat. 370 and Baijnath Thakur and Another Vs. Sarwan Chaudhury and Others, In Sital Prasad Singh and Others Vs. Ajablal Mander and Others, the then C.J. Sir Trevor Harries observed that 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. In Baijnath Thakur and Another Vs. Sarwan Chaudhury and Others, my Lord the present Chief Justice, who was then a Judge of this Court, after reviewing the previous authorities on the point, came to the conclusion that the karta of a joint family was entitled to hypothecate ancestral lands for the purpose of acquiring other lands for the benefit of the family. I think I need not multiply authorities on this point. The point being concluded by authority of this Court I have no hesitation in rejecting the contention of the appellants'' learned lawyer that the transaction, in order to bind the idol''s estate, must be of a defensive character.

It was next argued by the learned advocate for the appellant that there was no Clear finding in this case by the learned Additional District Judge to the effect that any property had been acquired by the shebait with the sale proceeds of this property. The findings on this point are to be found on p. 33 of the paper book, and they run as follows:

It is also in evidence that some land was actually jmrehased for the idol after the sale of this land though direct evidence is lacking to establish that purchase was made out of the sale proceeds of this land. But when the idol had no other property left, it appears reasonable to hold that the purchase in question was actually made with the sale proceeds of this land as was the intention of Mahesh Prasad in selling it.

There is thus a definite finding to the effect that some property had been purchased after this property had been disposed of, and that this property had been purchased for the idol. It is true that we are not in a position to know what -was the value of the property which was purchased, but, in order to judge whether the conclusion arrived at by the learned Additional Judge is sound, we should also consider his other finding to the effect that this property yielded very little profit to the estate, so much so that even the rent could not be paid out of its income. The learned Additional Judge has further pointed out that this transaction had been assented to by all the adult male members of the family, so much so that one of the defendants, who is a lawyer, had drafted the sale deed, wherein there is a recital that it was difficult to manage this property, and that it was yielding very poor income. All these findings of the learned Additional District Judge taken together, would, irresistibly lead to the conclusion that it was a prudent act on the part of the manager or the shebait to have disposed of this property and to have purchased some property out of the sale proceeds of this property which could yield better income.

The learned advocate for the appellant further argued that it had not been proved that the amount of cash consideration which is said to have been paid was actually required for the benefit of the estate. What appears is that Rs. 871 was paid in cash as the consideration for the sale deed, and besides this amount which was paid in cash at the time of the transaction, the vendees had to pay the arrears of rent, which also amounted to about Rs. 800. There is no doubt that the amount of rent due had been paid, though in installments. To meet this contention of the learned advocate for the appellants Mr. L.K. Jha on behalf of the respondents has cited the case of AIR 1927 37 (Privy Council) in which case it was held that a sale of property should not be set aside merely because a considerable part of the proceeds is not proved to have been applied to purposes of necessity. The real question to be considered is whether the sale itself was justified by necessity, and if the purchaser has acted honestly and made due enquiry as to the existence of necessity for the sale, he is not bound to account for the application of the price. I think these principles can be applied in this case. The purchasers could easily ascertain after enquiry that the rent had not been paid, and that there was a chance of the property being sold for arrears of rent. The finding of fact arrived at by the learned Additional District Judge is clear enough to show that it was impossible for the shebait to manage this property and that it could not fetch even sufficient income for the payment of rent. It cannot be argued with any show of reason that the vendees in this case had not acted honestly and bad not made proper enquiry as to the existence of the necessity for the sale. The learned advocate for the appellant tried to show that the judgment of the Court of first instance that the defendants first party had, after the sale, made some improvement in the land which could have been effected by the shebait. But the shebait is a doctor, and one of his brothers is a practising lawyer and the shebait, according to the findings of the learned Additional District Judge, had considerable difficulty in managing the property which was situated at an appreciable distance from the place where he resides. This appeal, therefore, fails and is dismissed with costs.

Agarwala C.J.

I agree.