JUDGMENT
Om Prakash, J.
1. This is a second appeal by the defendants-appellants against the judgment and decree of the learned I Temporary Civil and Sessions Judge, Farrukhabad, decreeing the suit of the plaintiff-respondent for specific performance, directing that a sale deed pursuant to the registered agreement to sell dt. 13-4-1966 shall be executed either by Sri Jagdish Prasad, son of Sri Sita Ram Das, erstwhile Sarbarakar of the appellant 2, who is deity, or by the Sarbarakar, whosoever is there at the relevant time and thereby reversing the judgment and decree of the trial Court dismissing the suit of the plaintiff.
2. The plaintiff filed a suit against the defendants that Sri Sita Ram Das, who was the Sarbarakar of the deity (defendant 1) had entered into an agreement to sell, which was registered on 13th Apr., 1966, with the plaintiff. The defendant 1 was a Bhumidhar of plot No. 799 measuring 43. The temple, in which the idol was situated, was in dilapidated condition and that required immediate repairs. The Sarabarakar, namely, Sri Sita Ram Das, thus, had the legal necessity of sale and he had entered into an agreement to sell vide registered deed of 13th Apr., 1966, to transfer the aforesaid property for Rs. 600/-. A sum of Rs. 275/- was paid towards part consideration at the time of the registry and a balance of Rs. 325/- was agreed to be paid at the time of the registry of the sale deed. The plaintiff contended that he was always ready and willing to perform his part of the contract, but the defendants failed to execute the sale deed. It is said that the defendant 2 made an application during the consolidation proceedings that his name be entered as Sarbarakar of the defendant 1. His name was entered as Sarbarkar by the consolidation Court and this is how he was arrayed as defendant 2. His predecessor in the office, namely, Sri Sita Ram Das, has died. The defendants having failed to execute the sale deed pursuant to the registered agreement to sell, the plaintiff filed a suit for specific performance against the defendants.
3. The suit was resisted by the defendants, inter alia, on the ground as contained in para 10 of the written statement that there was no legal necessity to make sale of the disputed property.
4. The trial Court framed as many as four issues and issue No. 3, which is relevant for the purpose of this case, was as follows : —
3. Whether agreement for sale is without legal necessity ? If so, its effect ?
The trial Court dismissed the suit and then the plaintiff filed an appeal before the lower appellate Court. It was held by the lower appellate Court that it was well established by the evidence brought on record that the temple was in dilapidated condition and that required immediate repairs and, thus, there was a legal necessity to resort to transfer by sale and the lower appellate Court, thus, reversed the decision of the trial Court and decreed the suit directing the plaintiff to pay the balance of Rs. 325/- before the execution of the sale deed.
5. Aggrieved the defendants have filed this second appeal. Sri V. Sahai, learned counsel for the defendant-appellants, argued before me a single point that no finding was recorded by the lower appellate Court whether the vendee, i.e. the plaintiff, made diligent enquiries and satisfied himself before entering into the agreement to sell that funds for repairs of the temple could not have been raised in any other way except by the sale of endowed property. What he argued is that the position of the Sarbarakar of the deity is just the same as that of the guardian or the manager of a minor. The amount of care, which is expected from the manager of the minor’s property is also expected from the Sarbarakar of the deity. Before entering into an agreement to sell or before making a sale, Sri V. Sahai argued that the alienee of the vendee should have made deligent enquiry whether the Sarbarakar was justified in transferring the property by sale and the funds required for the repair of the temple could not have been raised in any other way, either by mortgaging the endowed property, or by leasing out the same, or by creating a charge on that property. The argument is that unless it is proved by cogent evidence that the funds required for carrying out repairs of the temple could not have been procured in any other way, except by effecting sale, the legal necessity to sell out the property could not be established. It is this contention which has been precisely raised in ground No. 2 of the grounds of the second appeal by the appellants. Sri V. Sahai argued that even if everything is taken to be in favour of the plaintiff that there was immediate need of the repairs of the temple, that the then Sarbarakar, namely, Sri Sita Ram Das, entered into an agreement to sell with the plaintiff, that the plaintiff had paid part sale considerations and that the plaintiff was willing to pay the balance, still no decree for specific performance in this type of case could be passed in the absence of proof that the alienee or the vendee made enquiry with due deligence before the transfer that the necessity to raise funds for the benefit of the deity could not have been raised in any other way except by sale. In short, the argument is that it is not only the need to raise funds or the purpose for which the funds are required which is to be established, but when the Sarbarakar resorted to transfer by sale for legal necessity it has got to be proved that there was a legal necessity to alienate the endowed property only by sale and not otherwise and that the onus is on the alienee to establish it.
6. Sri V. Sahai in support of his contention relied on Smt. Kamalani Ghose Choudhurani v. Himangshu Bhushan Ghose. AIR 1956 Cal 211; Ram Parkash v. Radhe Shyam, AIR 1963 Punj 338 and Murli v. Ghamar, AIR 1930 All 22 (2). I have gone through these authorities with as much care as possible. The ratio of all these authorities in unequivocal terms is that in these type of cases, consideration that would be of importance in order to decide whether it was necessary to sell the endowed property in order to raise certain funds required for the benefit of the estate could be whether the parties concerned had no other property out of which they could make the necessary expenditure, whether it would not have been possible to raise the requisite funds by mortgage or by lease or by creating a charge instead of selling the property outright. Before giving such a dictum, this Court in the case of Murli v. Ghamar (supra) adverted to the cases of Sri Krishan Das v. Nathu Ram, AIR 1927 PC 37 and Gauri Shankar v. Jiwan Singh, AIR 1927 PC 246. Relying on the said decisions of the Privy Council, this Court observed on page 23 that “suits of this nature must be considered from a rather different point of view from the one that used to be favoured in this province.” Undoubtedly, the power of a shebait to alienate debutter property is analogous to that of a manager for an infant heir. As a general rule of Hindu Law a property given for the maintenance of religious worship and of charities connected with it is inalienable and the only exception to this rule is that alienation can be made only for legal necessity. When in para 2 of his plaint, the plaintiff contended that there was a legal necessity to sell out the land, belonging to the deity, it is his onus to prove that legal necessity that arose could not have been met by mortgaging or leasing out the property or by creating a charge thereon, but to procure the requisite funds for repairs of the temple sale of the property and nothing short of it was absolutely necessary. This view, which I am taking, is fully supported by the aforementioned authorities. There being a judicial consensus on this point, I do not see any force in the contention of Sri P. N. Saxena, learned Counsel for the plaintiff-respondent, that the concept of legal necessity was well established, as the plaintiff before having entered into the agreement to sell, made enquiry diligently as a prudent person and satisfied himself that the funds were really needed for the repairs of the temple. The onus of the plaintiff will not stand discharged by the mere fact that he satisfied himself that Sri Sita Ram Das, the then Sarbarakar, really needed the funds for the repairs of the temple, but it was also his duty to further enquire and satisfy himself that the need to raise funds could not have been met in any other way except by sale of the debutter property. No doubt there is evidence, which has not been challenged before me by Sri V. Sahai, that the part sale consideration that was received by Sri Sita Ram Das had been used in connection with the repairs of the temple. But this is not all. What is to be established in this type of the cases by the alienee is that there was a legal necessity to effect sale and that transfer either by mortgage or by lease or by creating a charge could not have satisfied the legal necessity. There is a clear difference between the two things; that there was a legal necessity of transfer and that there was a legal necessity of sale. In the instant case, we are concerned with the latter. Since the plaintiff entered into an agreement to sell, it is his onus to prove that there was legal necessity to sell out the disputed property and that any transfer otherwise would not have met the legal necessity. Mere enquiry on the part of the plaintiff that the funds were really needed for the repairs of the temple and that they were so utilised and that he acted as a prudent man before entering into an agreement to sell, are not enough, but something more has got to be proved by him and that is that the transfer by sale and sale alone was the legal necessity and the transfer by any other mode would not have satisfied the legal necessity.
7. Such a legal position has been consistently maintained looking to the position of the deity or the minor, who are unable to defend themselves from the onslaught of the society. They safeguard their property through others and it is to prevent the persons in whom the faith is reposed or who have been deputed to take care of the properties belonging to the deity or the minor, such extraordinary proof is required, so that the debutter property may not be frittered away by indiscrete, reckless or profligate Sarbarakars or Shebaits. The pivotal point in all the authorities being relied on by Sri V. Sahai is that the debutter property should be cut as little as possible and the deity should not be completely deprived of its property as far as possible. This is why the duty is on the alienee to place himself in the position of a manager of the minor’s property or Sarbarakar of the deity and make all possible enquiries before entering into any agreement in regard to the debutter property.
8. The learned lower appellate Court found that there was a legal necessity to sell out the debutter property, as the funds were needed to repair the temple and that the part sale consideration advanced by the plaintiff, was in fact utilised lor that purpose. Nothing more has been said by the lower appellate Court to justify that there was a legal necessity to sell and it is here the lower appellate Court erred in decreeing the suit of the plaintiff, without calling upon the latter to establish that an out and out sale was the legal necessity.
9. Then the question is whether the suit of the plaintiff can be straightway dismissed for the reason that no evidence was given by him that nothing else but transfer by sale alone was the legal necessity. In my opinion, no final decision can be taken right now. The issue relating to legal necessity as framed by the trial Court has already been reproduced above and looking to that issue it can be said that no fair chance was given to the parties to lead evidence in this direction. Issue No. 3 as framed by the trial Court cannot be said to be a proper issue in the peculiar situation of this case, but in my opinion the following issues should have been framed : —
1. Whether there was a legal necessity to effect an out and out sale to raise funds for repairs of the temple ?
2. Whether adequate funds for repairs could have been raised by mortgage or lease or by creating a charge on the disputed property ?
10. As no other finding of the lower appellate Court has been assailed before me by Sri V. Sahai, I hold that all other findings including the findings that temple required repairs, that part consideration was received by the then Sarbarakar and that was utilised for repairs, except the finding that there was a legal necessity of sale, have become final and the case is remanded to the lower appellate Court to record findings only on the aforementioned two issues and then decide the question afresh whether the suit for specific performance deserves to be decreed and to do so the parties to the suit will be given full opportunity to lead evidence on the aforesaid two issues.
11. In the result, the appeal is partly allowed and the case is remanded to the lower appellate Court with the aforesaid observations. The costs of the appeal will abide the ultimate result of the case.