Shri Bhagwan and Others vs Prakash Chand and Another

B.R. Arora, J.—This appeal is directed against the decree dated April 15, 1978 (judgment dated April 10, 1978) passed by the District Judge, Churu, by which the learned District Judge decreed the Civil Suit No. 23 of 1977 (Prakash Chand and Anr. v. Sri Ram Kishan and Ors.).

Plaintiff Prakash Chand filed civil suit in the Court of Additional District Judge, Churu, for declaration that the sale- deed dated August 27, 1971, executed by Radha Kishan in favour of Ram Krishna be declared as ineffective and void against the plaintiff and the same may, also, be cancelled and the defendants Nos. 1 to 3 may be directed to return the original sale-deed dated April 15,1920, and November 24,1978. It was further prayed that a temporary injunction may be issued against the defendants Nos. 2 and 3 restraining them not to alienate the property in question to any other person and they may further be restrained from making any addition, alteration or construction over the property. It was, also, prayed that the defendants Nos. 2 and 3 may be restrained from recovering any rent from the tenants and may not do any work which may prejudiciously affect the rights of the plaintiff. The case set-up in the plaint was that the plaintiff Prakash Chand and the defendant No. 4 Radha Kishan are the members of Hindu Undivided Family and they own some ancestral properties since the time of his grandfather Ram Chandra, which have not been divided so far. After the death of Ram Chandra on August 18, 1955, the plaintiff and the defendant No. 4 Radha Kishan are the only heirs of deceased Ram Chandra. The defendant No. 4 Radha Kishan, who is father of the plaintiff, sold one-shop, situated in the Western market of Sardarsahar, to Ram Krishna by a registered sale-deed dated August 27,1971, without any legal necessity of the Hindu Undivided Family or for the benefit of the estate. He even sold this property for inadequate consideration without the consent and knowledge of the plaintiff. The plaintiff came to know regarding this sale only on December, 1, 1973, when he returned to Sardarsahar from Bombay and immediately after knowing this fact, he gave a notice on December 10,1973, to the defendants No. 1 and 4 for the cancellation of the sale-deed. This notice was received by them on December 14,1973, and December 18, 1973, respectively. Defendant No. 1 Ram Krishna, inspite of the receipt of the notice, by two different sale-deeds of the same date. i.e., December 21, 1973, sold the shop in question to Sri Bhagwan and Nagar Mal (defendants No. 2 and 3) and got the sale-deeds registered in their favour. As the sale-deed dated August 27, 1971, is ineffective and void against the plaintiff and, therefore, both these subsequent sale-deeds dated December 21, 1973, are automatically ineffective and void. The plaintiff, also, pleaded in the plaint that the sale amount of Rs. 20,000/- for the shop in question was, also, inadequate. The actual market value of the property on the relevant date was not less than Rs. 40,000/-. It was further pleaded that as the plaintiff and the defendant No. 4 are governed by MITAKSHARA School of Hindu Law and, therefore, in the presence of the major son, the father had no right to sell the ancestral property even for the legal necessity, If the property has not yet been divided. The suit was contested by the defendants. In the written statement, the defendant took the plea that Radha Kishan alone had the right to sell the property in question as he was adopted by Shri Ram Chandra and the property in question was the self-acquired property of Ram Chandra and, therefore, he alone had the interest and right in the property and the plaintiff had no interest or right in the property in question. It was, also, pleaded that the property in question was sold by Radha Kishan for adequate consideration and as he was the ''KARTA'' of the H.U.F. and the property was sold for the legal necessity of the family and, therefore, the sale made in favour of the defendant No. 1 Ram Krishna by Radha Kishan was a valid sale. The defendant, therefore, prayed that the suit, filed by the plaintiff, may be dismissed with cost. On July 1,1977, the Court of the District Judge, Churu, was established at Churu and, therefore, the suit was transferred to the Court of the District Judge, Churu from the Court of the Additional District Judge, Churu.

On the basis of the pleadings, the learned District Judge framed nine issues. The plaintiff, in support of its case, examined four witnesses and placed reliance over ten documents. The defendant, in support of its case, examined eighteen witnesses and placed on record six documents. The learned District Judge, by its decree dated April 15, 1978, and the judgment dated April 10,1978, dismissed the suit filed by the plaintiff. It is against this decree dated April 15,1978, and the judgment dated April 10,1978, that the present appeal has been filed by the defendant-appellants.

Heard learned Counsel for the appellants as well as the learned Counsel for the respondents.

It is contended by the learned Counsel for the appellants that the learned lower Court erred in holding that the sale-deed executed by Radha Kishan was not for legal necessity. It was further contended that the shop was sold for the payment of antecedent debts as well as for investment in the family business, which was being run by Radha Kishan at Jorhat (Assam), and stands proved from the evidence produced by the defendants. The plaintiff has not denied incurring of debt by Radha Kishan at the time of performance of the marriage of his daughter. His further submission is that defendant No. 1, before purchasing the shop in question, made enquiry regarding the legal necessity of the H.U.F. and thereafter purchased the property. The actual application of the money was not necessary to be seen by the defendant. In support of its case, the learned Counsel for the appellants has placed reliance over: AIR 1927 37 (Privy Council) Ramkrishna Muraji v. Ratan Chand, AIR 1931 PC 136 Radhakrishnadas Vs. Kaluram, , Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, , Ramdayal and Others Vs. Bhanwarlal and Others, The case of the appellants further is that the plaintiff even admitted that money was spent by Radha Kishan in the marriage of his daughter. He pleaded ignorance regarding the ancestral debt. He did not produce even Radha Kishan nor did he produce the account books. According to the appellant, he has proved the legal necessity of the Hind Undivided Family for the sale of the property in question and has led sufficient evidence regarding the making of the enquiry for the legal necessity. The case of the appellants, further, is that the value that the property fetched, was most adequate and the learned lower Court was not justified in holding that the property was worth more than Rs. 40,000/-. Lastly, it is contended by the learned Counsel for the appellants that when no relief for possession was claimed in the suit, no decree could have been passed in the present case. He, therefore, prayed that the suit, filed by the plaintiff, deserves to be dismissed and the decree and judgment, passed by the Court below, deserve to be set-aside.

The learned Counsel for the respondent No. 1, on the other hand, has supported the decree and judgment passed by the Court below and has submitted that the learned lower Court rightly came to the conclusion, on the basis of the evidence available on record, that the defendant No. 4 Radha Kishan had no legal necessity of the Hindu Undivided Family to sell the shop in question and, therefore, the sale of the Hindu Undivided Family property, made by the defendant No. 4 is wholly without jurisdiction and void and has rightly been declared so by the learned lower Court. He has further submitted that the defence taken by the defendant was an after thought and in the sale-deed Ex. 2 and in the reply to the notice Ex.10, there was no mention regarding the family''s necessity. Even the case set-up regarding the marriage of the daughter of Radha Kishan was, also, an after-thought. According to the learned Counsel for the respondent No. 1, the appreciation of the evidence, made by the learned lower Court, is perfectly just and proper and no interference is called-for. In support of its contention, he has placed reliance over: Tolaram and Another Vs. Beenjraj and Others, He has further submitted that the cases cited and relied upon by the learned Counsel for the appellants are distinguishable and so far as the arguments regarding the dismissal of the suit on the ground that no relief for possession has been prayed-for, is concerned, this objection was neither taken in the written statement nor any issue was framed on this point and the case was not even argued on this point by the defendant-appellants before the learned District Judge and, therefore, the appellants cannot be allowed to agitate this point at this stage. In support of its case, the learned Counsel for the respondent No. 1 has placed reliance over the judgement of the Supreme Court rendered in : Mst. Rukhmabai Vs. Lala Laxminarayan and Others, . A preliminary objection was, also, taken by the learned Counsel for the respondent No. 1 that the respondent No. 2 Radha Kishan [father of the plaintiff] breathed his last on May SO, 1986, in the Marwari Aarogiya Bhawan Hospital, Jalagar, Dibrugarh, and no steps have been taken by the learned Counsel for the appellants to bring on record the legal representatives of the deceased Radha Kishan. According to the learned Counsel for the respondent No. 1, Radha Kishan was necessary party to the suit as well as to the appeal and the appeal cannot proceed in absence of the legal representatives of deceased Radha Kishan and, thus, stands abated. His further contention is that if the legal representatives of deceased Radha Kishan are not taken on record then two inconsistent decrees will be passed with respect to the estate of the deceased, which is not permissible under the law. He, therefore, prayed that the appeal, as a whole stands abated and deserves to be dismissed. In support of its case, the learned Counsel for the respondent No. 1 has placed reliance over: The State of Punjab Vs. Nathu Ram, , Sri Chand and Ors. v. Jagdish Pershad Kishan Chand and Ors. AIR 1966 SC 1427 , Ramagya Prasad Gupta and Others Vs. Shri Murli Prasad and Others, and Bhanwarlal Vs. Bhulibai and Others, The learned Counsel for the appellants, in reply to this preliminary objection, has stated that the respondent No. 1 Prakash Chand, who is the son of deceased Radha Kishan, is already on record and sufficiently represents the estate of the deceased Radha Kishan. The other legal representatives of the deceased Radha Kishan are not necessary party to the present proceedings. Alternatively, it has been argued that after the amendments of 1976 in the Code of Civil Procedure, it is, also, the duty of the respondent No. 1 to have informed the Court regarding the death of his father Radha Kishan and to disclose the names of other legal representatives. His contention, therefore, is that as the estate of the deceased Radha Kishan is sufficiently represented by the respondent No. 1 Prakash Chand and, therefore, the appeal cannot abate on account of death of the respondent No. 2 Radha Kishan. In support of its case, the learned Counsel for the appellants has placed reliance over: Delhi Administration Vs. Mohd. Iqbal, , Amar Nath and Others Vs. Mul Raj (deceased) represented by his legal representatives and Others, Fakira and Another Vs. Board of Revenue for Rajasthan at Ajmer and Others, Mst. Pemi Bai v. Mst. Sankali Bai RLW 1981 page 125, Mohammad Arif v. Allah Rabhul Alamin and Ors. AIR 1982 SC 948 and Ratan Singh and Others Vs. Padam Singh and Others,

Before considering the arguments advanced by the learned Counsel for the parties, I would first like to take into account the nature of the evidence produced by the respective parties.

PW 1 Prakash Chandra has stated that he and his father Radha Kishan inherited the property, which was left by Ram Chandra has not been divided between his father and him. His father Radha Kishan, on August 27, 1971, sold the house to Ram Krishna for a consideration of Rs. 20,000/-, which is most inadequate and the actual market value of the property is about Rs. 50,000/- to 60,000/-. The property is situated in the Western market of Sardarsahar, Mst. Dakha sold her shop for a consideration of Rs. 20,000/-vide EX.1, The property of the plaintiff is about 2 1/2 times bigger than the property of Dakha and situated in the same market. He has proved Ex. 2 to Ex. 4- the sale-deeds. He has further stated that he came to know regarding this sale in the month of December, 1973, when he returned from Bombay and after coming to know of this fact, he gave notice to Radha Kishan and Ram Krishna, which is Ex. 5. He has, also, proved Ex. 6 to Ex. 9- the postal and Acknowldgement receipts. He has further stated that prior to the sale, this property was not partitioned between his father and him and was the property of Hindu Undivided Family.

PW 2 Pooran Chand has stated that the property in question, which was sold by Radha Kishan was the ancestral property and the partition of the same had not taken place between Prakash Chand and Radha Kishan. That property was given on rent to various tenants and Radha Kishan sold the shop for inadequate consideration. He has further stated that the value of this shop must be near-about Rs. 60,000/-. Similar is the statement of PW 3 Bajrang Lal and PW 4 Mahaveer Prasad.

PW 1 Magraj is the property dealer, who has stated that Radha Kishan wanted to sell the shop in question and for that he had asked him to search for some buyer and he had taken some intended purchasers to Radha Kishan, but he could not get the purchaser who could offer more than Rs. 17,000/-. He has, also, stated that Radha Kishan wanted to sell this property as he required some money. He has, also, stated that as the shop in question was given on rent to various tenants and, therefore, it could not have fetched more than the price what it actually fetched. He has, also, stated that there was one shop in the same market which was in a better condition than the shop of Radha Kishan, which was sold for an amount of Rs. 9500/- by the wife of Laxmi Narain Moondra to Mr. Laxmi Narain Soni.

DW 2 Moti Singh has stated that he was serving in the tea garden in the year 1971 near Jorhat in Assam and used to go to Jorhat twice in a week, There, in the year 1971, he was introduced to Radha Kishan and, also, got acquainted with Prakash Chandra, who was working with his father in the radio parts shop at Jorhat. This shop was started by Radha Kishan in the year 1969, and both Radha Kishan and Prakash Chand were doing business in that shop and he had seen them working in that shop upto 1975.

DW 13 Mohan Lal has stated that Prakash Chandra, was his class-fellow. In the year 1970, he, on enquiry, informed him that he cannot get married because the debts incurred by his father in connection with the marriage of his sister, was yet to be paid and the money was required for expanding the business at the shop at Jorhat and, therefore, they are intending to sell the shop in question and ultimately the shop was sold by Radha Kishna. After selling the shop, Prakash Chand went to Jorhat and used to come Sardarsahar off and on. He has further stated that Radha Kishan sold this shop for clearing the debts of his daughter''s marriage and he, also, required the money for expanding the business in the shop at Jorhat.

DW 4 Sanwal Ram has stated that he is operating a sales agency in Calcutta and Assam and used to go to various districts in Assam, including Shillong, Jorhat etc. He has further stated that he knows Radha Kishan R/o Sardarsahar, who was doing the business of radio parts and this business of radio parts at Jorhat is being done by Radha Kishan and his son Prakash Chand jointly. He has seen Prakash Chand in the shop in the years 1970 to 1972. He has further stated that in the month of August and September, 1971, he had gone to Jorhat and there only Prakash Chand was present in the shop and on enquiry, Prakash Chand told him that Radha Kishan had gone to Sardarsahar for making arrangements for the money.

DW 5 Nem Chand has stated that he is running a PAN shop in one of the shops situated in the suit property. He has stated that this shop has been purchased by Hardwari Lal from Ram Krishna and he started giving rent to Ram Krishna, but for the last 12 to 14 months, he had not given rent to anybody. This shop was taken on rent fifteen years before and his younger brother used to sit in the shop. In the cross-examination, he has stated that previously Prakash Chand used to collect the rent of this shop and upto the date when this shop was purchased by Ram Krishna, Prakash Chand collected the rent of the shop,

DW 6 Kishan Lal is the another tenant who has stated that prior to the purchase of the shop in question by Ram Krishna, he used to pay the rent to Radha Kishan. After the sale of the shop in question, Radha Kishan asked him to pay the rent to Ram Krishna in future and thereafter he paid rent to Ram Krishna, but for the last 15 months, he had not paid rent to anybody. In the cross-examination he has stated that sometimes Prakash Chand, also, used to collect rent from him.

DW 7 Habib is, also, a tenant in one of the shops in the disputed premises. He has stated that this shop was sold by Radha Kishan to Ram Krishna and prior to this sale, Radha Kishan used to collect the rent while after the sale he started giving rent to Ram Krishna, but for the last 11/2 to/2 years, he has not paid rent to anybody.

DW 8 Jai Chand Lal has stated that Magraj (property dealer) came to him and asked him that if he intends to purchase some shop then the shops of Radha Kishan Goyal are available for sale and on enquiry : whether the shops are given on rent or are vacant, he was informed that the shops are already given on rent and the tenants are doing their business in the shop and he therefore, offered a price of Rs. 15,000/- to Rs. 20,000/-for these shops, but the deal could not be materialised.

DW 9 Rameshwar has stated that he intended to purchase the shop of Radha Kishan and he offered the price of Rs. 19,000/- to Rs. 20,000/- for this shop as the shop was already occupied by the tenants and the vacant possession was not being given and, therefore, the deal could not be materialised. He has further stated that Magraj had come to him with the offer for the sale of this shop.

DW 10 Ram Krishna is the purchaser of the shop in question, who purchased the shop from Radha Kishan. He has stated that Prakash Chand had no right over the property in question and Radha Kishan was the sole owner of this property. He has, also, stated that the shop in question was purchased by him for a consideration of Rs. 20,000/-, which too, on enquiry, was found to be the exhorbitant price than what the actual price of the shop in question was. Five tenants were occupying the suit premises, who executed the rent-notes in his favour. Before the sale of this shop, Radha Kishan informed him that some old debts has to be paid by him and some amount is required for the business at Jorhat, and, therefore, he is selling the shop. Regarding the old debt, he had informed him that the amount was taken in connection with the marriage of his daughter. He has further stated that the plaintiff, at the time when the sale deed was executed, was working with his father at Jorhat and doing the business in the name and style of "R.D. Radio Parts House, Jorhat." The plaintiff was in the know of this sale. He has further stated that the plaintiff is doing the business with his father and he is not doing any business at Bombay, though he had gone to Bombay for his treatment of cancer. He has further stated that the price of the shop in question was not more than Rs. 20,000/-, and even when he tried to sell this shop, he could not get the buyer who could purchase the shop for Rs. 20,000/- even and, therefore, he sold the shop to Nagar Mal and Sri Bhagwan in two parts for a consideration of Rs. 10,000/- for each part.

DW 11 Hardwari Lal is the father of the purchaser Ram Krishna. He has stated that Radha Kishan was in the need of some money and he demanded some money from him on interest, but he refused to give that amount to him. As Radha Kishan could not make arrangement for the money from other sources, he, therefore, made an offer regarding the sale of the shop in question and sold the shop for a consideration of Rs. 20,000/- to him. An agreement was, also, executed prior to the registration of the sale-deed that if Radha Kishan would be able to arrange for the re-payment of the money within the period of 20 months then he will return the money plus Rs. 5000/-, but he was not able to return the money. That agreement is with Radha Kishan. He has further stated that the shop in question is an old one constructed about fifty years before and the value of the shop is not more than Rs. 20,000/-. He has, also, stated that Radha Kishan required the amount to repay the debt incurred by him in connection with the marriage of his daughter. The debts which Radha Kishan had to pay, were of Bheekam Chand Ratan Lal Cloth Merchant amounting to Rs. 2000/- as well as that of Ganga Ram Kalu Ram. An amount of Rs. 4000/-to Rs. 5000/- was, also, to be paid by Radha Kishan to some sundry creditors. The marriage of the daughter of Radha Kishan took place about 1 1/2 years before the sale. Radha Kishan, also, required the money to be invested in the business at Jorhat and for that he demanded the money from him on interest. He has further stated that Prakash Chand and Radha Kishan both are jointly doing the business in radio parts in the name and style of "R.D. Radio House, Jorhat," and both the living jointly. He has, also, proved Ex. 2-the sale-deed. He has further stated that Radha Kishan is doing the business at Jorhat since 1968, and prior to that he was running a printing press at Sardarsahar, and was, also, publishing a news-paper, but the same have been sold to Shri Shiv Shanker Trivedi.

DW 12 is Nagar Mal, who purchased half of the shop from Ram Krishna by a registered sale-deed Ex. 4 for a consideration of Rs. 10,000/-. He has stated that Radha Kishan, in the year 1969- 70, requested him to pay Rs. 4000/- on interest, which amount he required for the repayment of the debts incurred by him in connection with the marriage of his daughter, but he refused to pay the amount. He has further stated that Prakash Chand is doing the business with his father at Jorhat.

DW 13 Sumer Mal is the brother of Sri Bhagwan subsequent purchaser, who purchased half of the shop from Ram Krishna, who has stated that his brother Sri Bhagwan purchased half of the shop for a consideration of Rs. 10,000/-. He has stated that Radha Kishan required the money in connection with the repayment of the debt of the marriage of his daughter and for which he wanted to sell the shop and for that Magraj Dalai, also, came to him. Radha Kishan was demanding Rs. 21,000/-, while he was ready to pay only Rs. 15,000/- and, therefore, the deal could not be finalised. He has further stated that Radha Kishan and Prakash Chand are living jointly and are doing joint business and Prakash Chand is still bachelor.

DW 14 is Mala Ram, who worked with Radha Kishan for three years and is a milk-man, who used to supply milk to Radha Kishan and has stated that Radha Kishan and Prakash Chand used to live jointly in the same house. Similar is the statement of DW 15 Doongar Ram, who worked as a Cook with Radha Kishan and has stated that both father and son used to live jointly in the same house and the marriage of the daughter of Radha Kishan took place about seven to eight years before.

DW 16 Ladu Ram, DW 17 Bhanwaru Khan and DW 18 Hamid Khan are the three witnesses, who have been produced to prove the sale-deed Ex.2, executed by Radha Kishan in favour of Ram Krishna. Bhanwaru Khan is the petition-writer and is the scribe of this sale-deed while Ladu Ram and Hamid Khan are the attesting witnesses to Ex. 2. Hamid Khan has, also, proved the plan of the house.

Now, coming to the documents produced by the plaintiff, Ex. 1 is the certified copy of the sale-deed dated July 13, 1971, executed by Mst. Dakha in favour of Sanwal Ram Sharma. Ex. 2 is the original sale-deed dated July 13, 1971, with respect to the property in dispute executed by Radha Kishan in favour of Ram Krishna for a consideration . of Rs. 20,000/-. Ex. 3 is the original sale-deed dated December 21,1973, for half of the shop in question, executed by Ram Krishna in favour of Sri Bhagwan for a consideration of Rs. 10,000/- Ex. 4 is the original sale-deed dated December 21,1973, for half of the shop executed by Ram Krishna in favour of Nagar Mal for a consideration of Rs. 10,000/-. Ex. 5 is the notice given by Manik Chand Sharma, Advocate, on behalf of the appellant to Ram Krishna and Radha Kishan. Ex. 6 and Ex. 8 are the postal receipts of sending the registered notices and Ex. 7 and Ex. 9 are the A.D. receipts. Ex. 10 is the reply to the notice sent by. Ram Krishna.

The defendants placed on record six documents. Ex.A. 1 is the rent-note, executed by Habib in favour of Ram Krishna for a monthly rent Rs. 13/-. Ex. A.2 is the rent-note executed by Nem Chand in favour of Ram Krishna for a monthly rent of Rs. 23/-. Ex. A 3 is the rent-note executed by Shiv Shanker in favour of Ram Krishna for a monthly rent of Rs. 41.75 p. Ex.A 4 is the rent-note executed by Kishna Ram in favour of Ram Krishna with respect to one of the shops in the suit premises for a monthly rent of Rs. 18/-. Ex.A. 5 is the rent-note executed by Durga Ram with respect to one shop situated in the disputed property for the monthly rent of Rs. 22/-. Ex.A.6 is the power of attorney executed by Sri Bhagwan in favour of his brother Sumer Mal.

This is the whole evidence produced by both the parties.

Now, I would first like to consider the preliminary objection, raised by the learned Counsel for the respondent No. 1 regarding the abatement of the appeal. According to Order 22 rule 4 C.P.C. if a defendant dies and his legal representatives are not taken on record within the time limit prescribed by law, or no application is made within the prescribed time then the appeal against the deceased defendant stands abated. It is an admitted position that in the present case, no application under Order 22 rule 4 read with Rule 11 C.P.C. was made by the appellant to take the legal representatives of deceased Radha Kishan or record, ft is not disputed before the Court that Radha Kishan died on May 20, 1986, at Jorhat. It is, also, not disputed that the plaintiff Prakash Chand and his father Radha Kishan were governed by the MEETAKSHARA School of Hindu Law and the property in dispute, at the time of sale, was the property of MEETAKSHARA Coparcenary. According to Section 6 of the Hindu Succession Act, 1956, when a male Hindu dies after the commencement of the Act having at the time of his death an interest in the MEETAKSHARA Coparcenary property, .his interest in the property shall devolve by survivalship upon the surviving members of the coparcenary and not in accordance with the Hindu Succession Act. According to MEETAKSHARA Coparcenary, the female members have no share and it is only the male members who are the coparceners under the MEETAKSHARA Coparcenary and the female are excluded from MEETAKSHARA Coparcenary. As per the MEETAKSHARA Law, the plaintiff, being the only son of deceased Radha Kishan and the only surviving male member in the family, he is the only person who could have represented the estate as the legal representative of deceased Radha Kishan. He is already on record, though in a different capacity and as such the estate of deceased Radha Kishan is sufficiently represented by Prakash Chand and the appeal cannot stand abated. It is not necessary under the law that appellant should move an application for taking the legal representatives of Radha Kishan on record when the plaintiff, who is the sole legal representative of the deceased Radha Kishan to represent his estate is already on record and an oral request application in this regard is sufficient. If the estate is properly represented then there can be no abatement and the decree and judgment can be passed which can bind the estate as well as the plaintiff Prakash Chand. Prakash Chand-the legal representative of Radha Kishan (deceased) is before the Court, though in a different capacity and the failure to bring him on record as the legal representative of the deceased Radha Kishan, thus, will not abate the appeal. Moreover, Radha Kishan did not contest the suit. He neither filed the written statement nor he appeared in the witness-box and, therefore, even as per Sub-rule [4] of rule 4 of Order 22 C.P.C., the Court, whenever thinks it fit, may exempts the necessity of substituting the legal representatives of any of such defendant, who has failed to file the written statement or who has been failed to appear and contest the suit. The exemption of impleading the legal representative of the deceased Radha Kishan can be granted even in the present case because he neither filed the written statement nor appeared in the witness-box and even did not contest the suit. In this view of the matter, the preliminary objection, raised by the learned Counsel for the respondent No. 1 has no force and the appeal does not abate inspite of the death of the Radha Kishan.

The next question, which requires consideration is: whether the alienation of the sale made by Radha Kishan with respect to the shop in question, which belongs to the coparcenary property, was for legal necessity of the Hindu Undivided Family or for the benefit of the estate; because alienation by a father or ''KARTA'' of the family of the ancestral property-movable or immovable-can bind the interest of the other coparceners in the property provided the alienation is made for the legal necessity of the Hindu Undivided Family or for the benefit of the estate. The sale of the ancestral property by the father can, also, bind the interest of his son and grand-son if the sale is so made for the payment of his own debt, provided the debt was antecedent debt and was not incurred for the illegal or immoral purposes. According to Hindu Law, if the Joint Hindu Family property is sold by the father for the payment of antecedent debts then that will amount to a legal necessity and the application of the price, for the payment of antecedent debt or for the family business, is not necessary to be proved by the alienee as he has no control over the money after the sale has taken place and the money has been paid by him. He has only to see, after due enquiry, as to the necessity for sale and the mere fact that the alienee failed to prove that the sale consideration was not applied by the seller in the payment of the antecedent debt, will not invalidate the sale, as the purchaser in neither in a position nor is bound to see the application of the price. If an alienation is made to raise the funds to improve the family business by the father or the Manager of the Coparcenary property then that alienation, made by the father or the Manager, binds the family property including the interests of other coparceners. The manager or father can raise money to discharge the debt arising out of the family business and, also, for the arrangement of the money required to carry-on the business. In view of the law on the point, regarding the powers of the father/Manager regarding the alienation of the property for the legal necessity of the Hindu Undivided Family or for the benefit of the estate, now, I have to scrutinize the evidence, produced by both the parties on this point.

Defendants came with a specific case that the alienation of the property, i.e., the sale of the shop in question, was made by Radha Kishan to Ram Krishna, for the legal necessity of the family, but still no evidence has been led by the plaintiff to rebut this fact. The plaintiff produced only four witnesses and all the four witnesses have been produced only on the point that the property in question belongs H.U.F. and no partition of the joint property has even taken place and the second point, on which the evidence has been led by the plaintiff, is that the consideration received by his father was most inadequate and the property was worth more than Rs. 40,000/-. The learned District Judge, while considering the evidence of the parties, came to the conclusion that the evidence produced by the defendants is not sufficient to prove the legal necessity of the H.U.F. The learned trial Court was, also, of the view that the evidence produced by the defendants does not show that the sale proceeds, which was used for the business in the radio parts being done by Radha Kishan, was the H.U.F. business. The learned District Judge, also, did not give much weightage to the evidence produced by the defendant and decided the issue No. 3, which deals with the legal necessity, against the defendants. On the question of legal necessity, the defendant has produced DW 1 Magraj, DW 3 Mohan Lal, DW 10 Ram Krishna, DW 11 Hardwari Lal, DW 12 Nagar Mal and DW 13 Sumer Mal. There is a recital in the sale-deed Ex. 2 to the effect that the money is required for the legal necessity as well as for the business and for the repayment of the antecedent debt and for other necessities. This recital, thus, clearly shows that he sold the Shop as he required the money for the repyament of the antecedent debts as well as for the benefit of the estate, i.e., for the improvement of the business, which is being run by them. Though there is a recital in this case, but even if there is no recital in the sale-deed even then it will not affect the case of the alienee provided he has been able to prove the legal necessity at the time of adducing the evidence, DW 1 Magraj, who is a property dealer, has stated that Radha Kishan (defendant) asked him to search for some buyer for the shop as he wanted to sell the shop as he requires the money. This witness has nowhere stated that the money was required for the legal necessity of the H.U.F. and, therefore, this witness is of no help to either of the parties. DW 3 Mohan Lal has stated that the defendant Radha Kishan sold the shop in question in order to repay the debts incurred by him in connection with the marriage of his daughter and, he, also, required the money to invest it in the business which was being run by him at Jorhat. This witness has further stated that Prakash Chand was residing with Radha Kishan at Jorhat and both were doing the business in the radio parts jointly at Jorhat. DW 10 Ram Kishan has stated that before the sale of this shop, Radha Kishan informed him that the money is required for the payment of antecedent debts and, also, for the investment in the family business, which is being run at Jorhat and the sale- proceeds of this shop, i.e., the amount of Rs. 20,000/- was utilised by Radha Kishan for the payment of the debt relating to the marriage of his daughter and the remaining amount was used in the shop run in the name and style of R.D. Radio House at Jorhat, which business was being carried-on by Radha Kishan alongwith his son Prakash Chand Jointly. He has further stated that both-the father and the sonare doing the joint business. Though in cross-examination he has stated that he did not make any independent enquiries but relied upon the statement made by Radha Kishan. A lengthy cross-examination has been done with this witness by the plaintiff, but the veracity of this witness could not be shaken on this point. DW 11 Hardwari Lal is the father of Ram Kishan, who actually made all the enquiries and purchased the shop in question, though in the name of his son Ram Krishna. He has stated that he made enquiries with respect to the debt of Radha Kishan and came to know that Radha Kishan had some debts which were incurred by him at the time of marriage of his daughter, which took place in the year 1969. At that time, he was indebted to Shri Bheekam Chand Ratan Chand Cloth Merchant, Ganga Ram Kalu Ram and some other shop-keepers. He has, also, stated that Radha Kishan required the money for repayment of the debts incurred by him in connection with the marriage of his daugther. He has, also, stated that the amount was, also, required for the smooth running of the business which was being done by him alongwith his son Prakash Chand (plaintiff) at Jorhat. The business was carried-on by Radha Kishan alongwith his son Prakash Chand in the name and style of R.D. Radio House, Jorhat. Prakash Chand was, also, working with his father in that business. DW 12 Nagar Mal has stated that Radha Kishan, in the year 1969-70 demanded Rs. 4000/- from him on interest in order to repay the debts which were incurred by him in the marriage of his daughter. In cross-examination he has admitted that the marriage of the daughter of Radha Kishan took place in the year 1969-70, but he could not give the month in which the marriage was performed. He has, also, admitted that he is not in the know of the fact that from whom Radha Kishan had taken the loan, but he has, however, stated that he had heard that Radha Kishan had incurred some debt at the time of the marriage of his daughter for meeting out the expenes of jewellery and clothes etc. DW 13 Sumer Mal, who is the brother of Sri Bhagwan, who purchased half of the portion of the shop in question, has stated that Radha Kishan and Prakash Chand are living jointly and they have common kitchen and all the business is being run in the H.U.F. Both, the son and the father, have joint business of radio parts at Jorhat. He has, also, stated that about six to seven years before, Radha Kishan did the marriage of his daughter and for clearing the debt, which he incurred in the marriage of his daughter he wanted to sell the shop in question and he sent Magraj Dalal to him, also. He has, also, stated that Radha Kishan had to pay Rs. 800/- to Ganga Ram Jat towards the price of Ghee, which he purchased at the time of the marriage of his daughter. The plaintiff or any of his witnesses has not denied the fact regarding the marriage of the daughter of Radha Kishan and the expenses incurred by him, alone, in connection with the marriage of his daughter. No witness, produced by the plaintiff, even has denied that Radha Kishan incurred the debt in the marriage of his daughter. Even the application of the sale-proceeds to repay the debts and the application of the remaining amount in the business have not been denied. DW 2 Moti Singh and DW 4 Sanwal Ram have seen Prakash Chand working with his father at R.D. Radio House, Jorhat. Even PW 2 Pooran Chand has stated that after doing his B.Com., Prakash Chand started working with his father and worked for one to 1 1/2 years at Jorhat, and Prakash Chand went to Bombay only in the year 1972. Prakash Chand himself has not denied the application of the sale amount in the repayment of the debt incurred by his father in the marriage of his sister, i.e., the daughter of Radha Kishan. He has, also, not denied that the money was spent by the defendant Radha Kishan in the business of the radio parts being done by his father at Jorhat. From the evidence, produced by the defendant, it is, thus, clear that the defendant Radha Kishan sold the shop in question to repay the antecedent debts, which he incurred in connection with the marriage of his daughter and also, applied the remaining money for his business, which was being run in the name and style of R.D. Radio House, Jorhat, which was a Hindu Undivided Family business being run by the defendant Radha Kishan since 1969, when the plaintiff was even a student and after completing his study, he went there and worked with his father. The appellants have placed on record, by way of an affidavit, that after the death of Radha Kishan, this business has been taken over by the plaintiff, who is running the same at Jorhat. From all the circumstances, it is, therefore, clear that the business, which was being run in the name and style of R.D. Radio House at Jorhat, was the Hindu Undivided Family business and the shop in question was sold for the legal necessity of the Hindu Undivided Family as well as for the benefit of the estate, i.e., for expanding the business of the Hindu Undivided Family at Jorhat. The learned lower Court was, thus, not justified in deciding the issue No. 3 against the defendant and in favour of the plaintiff.

So far as the knowledge part is concerned, circumstances reveal that the plaintiff was in the know of the sale proceedings much earlier. The evidence proudced by him that he, for the first time, came to know regarding the sale proceedings only on December 1, 1973, does not inspire confidence. DW 5 Nem Chand-one of the tenant in the shop, has specifically stated that Prakash Chand used to collect the rent from him and he collected the rent till the month when the shop was sold. When he was collecting the rent from the tenants and after the sale he did not pay any rent to him then it cannot be said that he was not in the know of the fact because if the rent was not paid to him then he must have made some enquiry. Even in the cross-examination he has admitted that in the year 1972 he went to Assam but did not make any enquiry regarding the sale from his father. His conduct appears somewhat unnatural. If the shop has been sold by the father which was on rent and the rent was being recovered by the plaintiff, then for a long period of more than two year he would not know that the shop has been sold, cannot be accepted. Similar is the case of PW 3 Bajrang Lal, who is the real brother of Radha Kishan and the Uncle of the plaintiff. He is the person who allegedly informed the plaintiff regarding the sale of the shop. He has stated that for the first time he came to know regarding the sale only in the year 1973. This, also, appears to be wholly unnatural. Bajrang Lal is residing in Sardarsahar and Sardarsahar is not such a big town where he could not have known regarding the sale of the shop by his brother Radha Kishan. All the attending circumstances, thus, make it clear that the plaintiff had the knowledge regarding this sale much earlier than what has been alleged by him.

The last question, which requires consideration is: whether the amount fetched by Radha Kishan by selling the shop in question was adequate or not ? On this point, there is the evidence of PW 1 Prakash Chand, PW 2 Pooran Chand, PW 3 Bajrang Lal and PW 4 Mahaveer Prased. The evidence produced on this issue by the defendants contains the evidence of DW 1 Magraj, DW 8 Jai Chand Lal, DW 9 Rameshwar Lal, DW 10 Ram Krishna, DW 11 Hardwari Lal, DW 12 Nagar Mal and DW 13 Sumer Mal.

PW 1 Prakash Chand has stated in his statement that the value of this property, at the time of sale, was about 50,000/- to Rs. 55,000/-. He has placed on record the sale-deed executed by Mst. Dakha in favour of Sanwal Ram for the shop situated in the same market for a consideration of Rs. 20,000/-. According to the plaintiff, the shop of the plaintiff is 2 1/2 times bigger than the shop of the Mst. Dakha. In cross-examination, he has admitted that this shop fetched an annual rent of Rs. 1500/-. He has pleaded ignorance with respect to the year in which the shop in question was constructed. Whether it is a new one or old one, he has, also, pleaded ignorance in this regard. He has not placed on record any document or thing to show that the price received by Radha Kishan with respect to this shop is inadequate and how he has worked-out the price of the shop amounting to Rs. 50,000/- to Rs. 55,000/- is not explained. He does not reside in Sardarsahar and has not enquired from any property-dealer or other person regarding the price of the shop in question. In cross- examination, he has stated that as they never wanted to sell the shop and, therefore, they did not make any enquiry from any person regarding the price of the shop in question. PW 2 Pooran Chand has stated that the value of the shop in question should have been near-about Rs. 60,000/- as the shop is 2 1 /2 times bigger than the shop of Mst. Dakha. He has, also not stated that on what basis he has made this statement. Neither he is a property-dealer nor has he sold any property during that period and, therefore, the evidence of this witness on the question of the value of the property, also, does not inspire any confidence. PW 3 Bajrang Lal has stated that Mst. Dakha sold her shop for Rs. 20,000/- and the shop in question is 2 1/2 to 2 3/4 times bigger in area than the shop sold by Mst. Dakha. The statement of PW 4 Mahaveer Prasad is, also, to the same effect. All the witnesses, produced by the plaintiff on this point, i.e., regarding the value of the property in question, that it is about Rs 50,000/- to Rs. 60,000/-, does not inspire any confidence.

DW 1 Magraj is a property-dealer who has stated that Radha Kishan asked him for the sale of this shop and he could not get a customer who could pay more than Rs. 17,000/- and according to him the price of the shop in question, at the relevant time, was near-about Rs. 17,000/-. He has, also, stated that one shop, opposite the shop in dispute, was sold by the wife of Laxmi Narain Moondra to the purchaser Laxmi Narain Soni for a consideration of Rs. 9500/-. DW 8 Jai Chand Lal, who was an intended buyer of the shop in question, has stated that Magraj (property-dealer) approached him for the sale of the shop in question and he gave his offer between Rs. 15,000/-to Rs. 20,000/-. Rameshwar Lal was, also, an intended buyer, who gave offer to Magraj Dalai for this shop between Rs. 15,000/- to Rs. 20,000/- DW 10 Ram Krishna is the purchaser of the shop in question who has stated that he purchased the shop in question for a consideration of Rs. 20,000/-. The shop was an old one and there were five tenants in the shop and he purchased it for Rs. 20,000/-, but after the purchase, he came to know that he had paid the exorbitant price. He has stated that on enquiry he found that the proper price of the shop was less than Rs.20,000/-. DW 11 Hardwari Lal has, also, stated that they purchased the shop in Rs. 20,000/-, which was on the higher side as the shop was occupied by five tenants and was old one. Both these witnesses have, also, stated that they sold this shop in the year 1973 to Sri Bhagwan and Nagar Mal for Rs. 20,000/-@ Rs. 10,000/- for half share each). If the value of the shop was more than Rs. 20,000/- in the year 1971 then the defendant could not have sold the shop in the year 1973 for Rs. 20,000/-. DW 12 Nagar Mal has stated that he purchased half of the portion of the shop in the year 1973 by a registered sale-deed Ex. 4 for a consideration of Rs. 10,000/-. DW 13 Sumer Mal has stated that his brother Sri Bhagwan purchased half of the shop in question for an amount of Rs. 10,000/- vide Ex. 3. He has, also, stated that a property-dealer approached him for the sale of the shop of Radha Kishan and he gave his offer for Rs. 15,000/-. but Radha Kishan was demanding Rs. 21,000/-.

It is clear from the five rent-notes Ex. A.1 to Ex. A.5, placed on record, that these five tenants are paying the rent of Rs. 117/- per month and the plaintiff himself has admitted that the rent received from the various tenants comes to Rs. 1500/- per year. Even if the method for computing the value of the shop on the basis of the rent method is applied, even then the value of the property does not exceed Rs. 20,000/-. Under the Wealth Tax Act, 195B, a procedure has been provided for determining the value of the assets. According to Section 7 of the Act, the value of any immovable property is to be determined in the manner laid down in Schedule-Ill. One of the methods for determining the value of the immovable property is ''rental value''. According to Section 7 read with Schedule-Ill, the valuation of any immovable property, being a building or land appurtenant thereto or a part thereof, shall be the amount arrived at by multiplying the net maintainable rent by the figure 12.5. The maintainable rent under the Act is the gross maintainable rent reduced by(1) the amount of tax levied by the local authority in respect of the property and (ii) a sum equal to 15% of the gross maintainable rent. In the town of Sardarsahar, whether any tax is levied by the local authority or not, has not come on record and, therefore, for determining the maintainable rent 15% of the gross maintainable rent has to be reduced. As per this method, the net maintainable rent comes to Rs. 1275/- (Rs. 1500/- gross maintainable rent minus Rs. 225/- the 15% of the gross maintainable rent). After multiplying this net maintainable rent of Rs. 1275/- by the figure of 12.5, the value of the shop in question comes to Rs. 1 5,937.50p., which is much less than Rs. 20,000/-. Further, the shop in question was an old one, constructed about fifty years before the date of its sale, is situated on the Western side of the market and is occupied by five tenants for the last about fifteen years and one shop in the same area, which is in the better condition, has been sold by Mst. Dakha for a consideration of Rs. 20,000/- and another shops which according to Magraj, was sold by the wife of Laxmi Narain Moondra to Laxmi Narain Soni for Rs. 9500/- and as such it cannot be said that the price received by Radha Kishan by way of sale of this shop, was inadequate. It might be possible that as the shop in question was given on rent to five tenants and as the shop was occupied by these old tenants and, therefore, the other persons would not have come forward to purchase the shop. DW 8 Jai Chand Lal and DW 9 Rameshwar Lal, who appeared in the witness-box, have stated that as the shop was occupied by the tenants, therefore, they did not purchase the shop. In this view of matter, I am of the opinion that Radha Kishan got the prevalent price of the shop in question and the amount of Rs. 20,000/-, for which the shop in question was sold, cannot be said to be inadequate or unreasonable.

In the result, I allow this appeal, set-aside the decree and judgment passed by the learned lower Court and dismiss the suit, filed by the plaintiff with costs throught-out.