JUDGMENT
1. In this case the question we have to decide is whether the suit of the plaintiffs should stand dismissed as ordered by the lower Appellate Court or whether the plaintiffs are entitled to a conditional decree for the setting aside of the sale complained of and for the return of the property.
2. The plaintiffs are the sons of Dunger Mal who, it is alleged, sold certain joint family property on the 23rd of December 1902 to the first defendant Kanhaiya Lal. The property which was sold consisted of a moiety share in a 6 biswa 5 biswansi share situated in a village called Daulatpur, entered in the khewat as No. 1. Another item which was sold at the same time consisted of a proportionate share in 51 bighas odd entered in khewat as No. 3 of the same village. This latter item appears to be a share in the " Shamilat Deh."
3. The suit was brought in the year 1918 by the two plaintiff's one of whom Nathu Ram had just attained majority, the second plaintiff in the case, Shib Shanker, was still a minor at the time the plaint was filed. There were the usual allegations in the plaint to the effect that the sale had been made without any legal necessity and for the purpose of procuring funds for the plaintiffs' father who was addicted to gambling and other vices.
4. The Court of first instance found that the defendant Kanhaiya Lal had failed to prove that the sale was for legal necessity. It accordingly decreed the plaintiffs' claim. In appeal the finding of the Judge was that the defendant had made a proper enquiry and that there was legal necessity for the sale. The result was that he dismissed the suit of the plaintiffs.
5. In appeal the judgment of the lower Appellate Court is attacked on the ground that there is no evidence on the record to prove that the entire sum of Rs. 3,500 was given to Dunger Mal for purposes which were legally necessary. On the contrary it is argued that on the finding come to by the learned Judge there was legal necessity for only Rs. 3,000 out of Rs. 3,500.
6. It appears that prior to the date of the sale Dunger Mal the father of the plaintiffs had executed two promissory-notes in favour of one Kewal Ram and that the property now in dispute was sold for the purpose of discharging those debts. There is evidence to show that at the time the deed was registered Kewal Ram was paid a sum of at least Rs. 3,000. In his evidence given before the Court of first instance the first defendant stated that he also paid in addition another sum of Rs. 40 or Rs. 50. Beyond this there is no other evidence to which we have been referred by either party, and it is, therefore, argued on behalf of the plaintiffs that in these circumstances they are entitled to have the sale set aside on condition of their paying to the defendant-vendee a sum of Rs. 3,000. On the other hand, the argument has been that, inasmuch as the bulk of the purchase-money is found to have been paid for, and applied to, the discharge of debts which were legally binding, the sale ought to stand and the plaintiffs' claim ought to be dismissed.
7. The appellants' learned Counsel relies on two eases of this Court reported in Gobind Singh v. Baldeo Singh 25 A. 330 : A.W.N. (1903) 57 and Ram Dei Kunwar v. Abu Jafar 27 A. 494 : A.W.N. (1905) 68 and certainly those cases are in favour of this contention.
8. It is difficult to decide cases of this nature upon any fixed principle. It has been held by their Lordships of the Privy Council that in cases where a father has sold ancestral property for the discharge of his debts, if the application of the bulk of the proceeds has been satisfactorily accounted for, the fact that a small part is not accounted for will not invalidate the sale Girdharee Lall v. Kantoo Lall 1 I.A. 321 : 14 B.L.R. 187 : 22 W.R. 56 : 3 Sar. P.C.J. 380 (P.C.). That principle has been followed in numerous cases. The difficulty always is to ascertain what amount in cases like this is the "bulk" of the purchase-money. In one of the Allahabad cases to which we have been referred it was found that out of the total consideration of Rs. 3,299-8-0 a sum of Rs. 2,923-8-0 represented money which had been applied for purposes of legal necessity and the plaintiffs in that case were given a decree for the recovery of the property upon payment of the latter sum. Similarly in the other Allahabad case where it was found that Rs. 2,550 out of the total consideration of Rs. 2,995 represented money taken for legal necessity, a conditional decree for setting aside the sale was passed on payment of the sum of Rs. 2,550. We have, therefore, to deal with each case on its merits and to decide whether in a particular instance, the amount for which the legal necessity has not been proved, is with regard to the whole consideration, what may be described as a trifling sum. In the present case it is shown that out of Rs. 3,500 only Rs. 3,000 represented money which was taken for legal necessity. We should find it difficult, having regard to the decisions of this Court, to hold that Rs. 500 is in this instance a trifling amount and wo think, therefore, that we ought to follow the line which was taken in the two Allahabad cases above referred to.
9. The result, therefore, is that we allow the appeal and give the plaintiffs a conditional decree by which they will be entitled on payment of Rs. 3,000 within six months from the date of this Court's decree, to have the sale set aside and the property returned by the defendant Kanhaiya Lal. If they fail to deposit this sum of Rs. 3,000 in Court within the period so limited their suit will stand dismissed. Considering the long interval that has elapsed since the date of the sale we think that as regards costs the proper order will be to direct the parties to bear their own costs in all three Courts.