JUDGMENT
G.B. Patnaik, J.
1. Defendants are the appellants against the judgment and decree of the learned District Judge. Balasore. The plaintiffs filed the suit for specific performance of contract alleged to have been executed by Jujesthi, Das, the father of defendants 1 to 3 and 5 to 7 and husband of defendant No. 4.
2. According to the plaintiffs’ case, said Jugesthi agreedto sell the land, which he had got in a partition of the year 1948, as he required money for his maintenance. The plaintiff offered the consideration money of Rs. 2,500/- but as the entire consideration money was not there, he paid Rs. 2,200/- on 5-6-1973 on which date the agreement was executed and it was agreed that on payment of the balance consideration money of Rs. 300/-Jugesthi would execute the register sale deed. But unfortunately, before execution of such sale deed, Jugesthi died on 16-3-1974. Plaintiff thereafter approached the legal heirs of Jugesthi, the defendants but they did not pay any attention. Therefore, the plaintiff filed the suit in question.
3. Defendants in their written statement denied all the allegations made in the plaint. It was also alleged that the plaintiff was a cunning man who had taken Jujesthi to Dhamnagar and without telling anything to Jugesthi, who was an illiterate man, got his signature on the two stamp papers which was later on converted to an agreement for sale of the land in question. They also denied that at no point of time, the possession of the land had been given.
4. On these pleadings, the learned Subordinate Judge framed several issues and came to the finding that the plaintiff had failed to prove its case of due execution of agreement by Jugesthi and part payment of consideration money by the plaintiff, the plaintiffs case of delivery of possession by Jugesthi was also disbelieved and accordingly the suit was dismissed.
5. On appeal, the learned District Judge came to the conclusion that the judgment of the trial court is based on errors of record. Thereafter, the learned District Judge reappraised the entire evidence on record and disagreeing with the learned Subordinate Judge came to hold that the agreement Ext. 1 was genuine and the consideration mentioned therein had been paid. Having recorded the aforesaid finding, the learned District Judge also found that the land agreed to be sold were joint family ancestral land in the hand of Jugesthi and Jugesthi could validly sell the same only for legal necessity. But there was no evidence about the existence of any necessity or about any bona fide enquiry being made by the plaintiff and, therefore, he refused the prayer for specific performance of contract. Though the prayer for specific performance was negatived but he allowed the appeal to the extent that the plaintiff was entitled to the refund of the money which had been paid to Jugesthi with interest of 6% per annum. It is, that part of the order of the lower appellate court which is being assailed in this second Appeal by the defendants. There has been no cross-appeal by the plaintiff.
6. Mr. D. Mishra, the learned counsel for the appellant raised the only contention that on the findings of the lower appellate court that the advice taken by late Jujesthi, the father of the defendants was not for any legal necessity nor had the plaintiff made any enquiry about the legal necessity, the further ion for refund of the money in question clould directnot be enforced against the legal representatives of the deceased Jujesthi. I find sufficient force in the aforesaid contention of the learned counsel for the appellant. Admittedly, the property in question in respect of which Jujesthi had entered into the specific performance of contract of sale, is the joint ancestral family property. Jujesthi was the manager of the joint family property. The
power of the manager of a joint family acting on behalf of the minor members is a limited power and it can be exercised in a case of need or for the benefit of the estate. If the particular transaction is one which a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected in any manner. But to sustain the transaction, the actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon the estate has to be found out. A lender is bound to inquire into the necessities for the loan, and to satisfy 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. If he does inquire, and acts honestly, the real existence of an alleged sufficient necessity is not a condition precedent to the validity of the charge on the estate. A bona fide creditor will not suffer when he has acted honestly and with due caution. (See Hanooman Parsaud v. Mussammat Babooee, (1856) 6 Moo Ind App 393). But where the manager enters into a transaction and mixed charge on the joint family estate not for any legal necessity nor for any benefit of the estate and creditor also does not make the necessary enquiry to find out whether in fact the loan is for the benefit of the estate or not then such a loan by the manager cannot be enforced on the other members of the joint family or against the joint family property.
7. In this view of the matter and in view of the findings of the learned District Judge, that there was no legal necessity for the loan in question and the plaintiff did not make any enquiry with regard to the existence of necessity as well as with regard to any pressure on the estate, the amount in question cannot be a charge on the estate nor the legal representatives, who are the other members of the joint family, can be forced to make the payment. Consequently, the direction of the learned District Judge entitling the plaintiff to refund of the money in question is wholly unsustainable in law and the same is accordingly set aside. In the net result, the judgment and decree of the lower appellate court is set aside and the plaintiff suit is dismissed. The Second Appeal is allowed but in the circumstances, there would be no order as to costs.