JUDGMENT
Adarsh Kumar Goel, J.
1. Gurdit Singh, defendant No. 2 exe- cuted sale deed Ex.1 dated 20.7.1993 in favour of defendant No. 1 Dharam Singh. The appellant-plaintiffs claiming to be coparceners-plaintiff No.l being son and plaintiff Nos. 2 and 3 being grand-sons, challenged the sales as being without legal necessity. It was stated that plaintiff No.l earlier filed a suit for injunction against alienation and the same was withdrawn as sale deed was registered and the same was withdrawn as sale deed was registered and the same had to be challenged. Gurdit Singh had sufficient money in his back account and the amount received by sale, was never utilised.
2. Defendant No. 1 Dharam Singh, vendee contested the suit, inter alia, on the ground that the suit property was not ancestral and sale was for legal necessity as ven- dor was suffering from chronic illness. Plea of bar under Order 2 Rule 2 CPC was also raised.
3. The trial Court dismissed the suit. It was held that the suit property was acquired by Gurdit Singh in exchange with Wassan Singh and was not proved to be ancestral property. Plea of bar under Order 2 Rule 2 CPC was also upheld. As regards legal ne- cessity, it was observed that since suit property was not proved to be ancestral, plea of legal necessity could not be upheld.
4. On appeal, findings of the trial Court were upheld. The lower appellate court, in para 11 of its judgment, observed that in the previous suit for injunction filed by plain- tiff Prem Singh, vendor Gurdit Singh filed written statement Ex.DX admitting that the suit property was not ancestral and that he needed money because he was suffering from Asthma of acute type.
5. Learned counsel for the appellants submitted that the courts below have ignored revenue record, particularly mutation dated 16.4.1918 showing that Gurdit Singh inher- ited the property of his father Hira Singh. This fact was confirmed by Jamabandis Exs.P19 for the year 1918-19, P18 for the year 1936-37 and other record. He submitted that the finding of the courts below was vitiated on account of ignoring the relevant documentary evidence, lie submitted that the vendor had in his bank account a sum of Rs. 2 lacs and he had also income from the properly and after sale of the land, he depos- ited a sum of Rs. 3 lacs in his bank account and did not withdraw the money which showed that he had no legal necessity. He also submitted that withdrawal of earlier suit for injunction was not a bar to the present suit for declaration which was based on a dif- ferent cause of action of sale without legal necessity, He placed reliance on Gurjit Singh v. Bant Singh, (1996-2)113 P.L.R. 149, Madhukar and Ors. v. Sangram and Ors. A.I.R. 2001 S.C. 2171, Jagdish Singh v. Nathu Singh A.I.R. 1992 S.C. 1604, Ishwar Dass Jain (dead) through LRs. v. Sohan Lal (dead) by LRs, A.I.R. 2000 S.C. 426, Ved Parkash v. Chhaju, 1979 R.L.R. 297 (P&H), Ujagar Singh v. Karam Kaur 1992(2) Rev. L.R. 136 (P&H), Manohar Lal v. Dewan Chand, 1986(1) C.L.J. (C&Cr.) 18 (P&H), Brij Lal v. Daulat Ram, (1977)79 P.L.R. 27 (P&H) and Dilbagrai Punjabi v. Sharad Chandra, A.I.R. 1988 S.C. 1858.
6. Learned counsel for the vendee-defendant supported the decree of the courts be- low by submitting that the suit property was not ancestral, the sale transaction was genuine and bona fide and for legal necessity and that bar under Order 2 Rule 2 CPC was applicable in view of withdrawal of the earlier suit filed by Prem Singh, one of the plaintiffs.
7. I have considered the rival submissions and perused tile record of the case.
8. First question to be considered is whether alienation in the present case was for any legal necessity.
9. The alienation of joint family property by Karta for value is valid if the same is for legal necessity or for the benefit of the estate, without consent of other adult mem- bers. This principle is recognised in para 242 in well-known treatise on “Principles of Hindu Law” by Mulla (Sixteenth Edition). In para 244 of the said treatise, it is stated that burden is on a purchaser to prove that there was a legal necessity in fact or that he made a proper and bonafide enquiry as to existence of such necessity and did all that was reasonable to satisfy himself as to existence of such necessity. Such burden is dis- charged once the vendee shows that there was a bona tide transaction and the vendee had made enquiries about the legal necessity of the vendor. A vendee is not required to show actual use of money by the vendor. The vendor may not actually use the money at all.
10. These principles were laid down in various decisions. In Lala Atma Ram v. Thakur Sadhu Singh and Anr., A.l.R. 1938 P.C. 77, it was observed as under:-
“Now, it is a well-established rule that the onus lies on the alienee to prove either that there was legal necessity in fact which would justify the alienation, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity. If he fails to prove that there was a necessity in fact, alienation may still be upheld if he proves that he made enquiry as to the existence of the alleged necessity, and that the facts represented to him were such as, if true, would have justified the transaction. If he discharges this burden, he is not bound to see that the money paid by him is actually applied by the alienor to meet the necessity.”
In Gajjan Singh v. Atma alias Atma Singh,” (1968)70 P.L.R. 185 (P&H), it was ob- served as under:-
“(2) Once a true representation is made by the vendor, the vendees are not to see to the application of the money. The Courts below in the present case have held that the vendee should have proved that the money was hi fact utilised for a necessary purpose i.e. purchase of land in Sondha. It may be that after selling the land and when the money was in his hand the vendor could not find it possible to buy land in Sondha. The fact remains that the money which he acquired by that sale, he kept intact and invested it almost at the close of the year in a mortgage.”
In Radhaktishnadas and Anr. v. Kaluram (Dead), and after him his heirs and legal representatives and Ors., A.l.R. 1967 S.C. 574, it was observed by the Apex Court as under:-
“What the alienee has to establish is the necessity for the transaction, if he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the alienee can rarely have the means for controlling and directing the actual application of the money paid or advanced by him unless he enters into the managements himself ” (underlining supplied).
In Sunder Das and Ors. v. Gajananrao and Ors., A.I.R. 1997 S.C. 1686, it was ob- served as under:-
“…It has to be kept in view that defendant No. 6 being the father of the plaintiffs and ‘karta’ of the joint Hindu family was legally entitled to alienate the suit house and also the interest of the minor plaintiffs in the said house even for his own requirements unless it was shown that the transaction was trained by any immoral or illegal purpose. That is not the case of the plaintiffs, Nor have they suggested that their father was addicted to any immoral conduct…” (Para 11).
In Smt. Rani and Anr. v. Smt. Santa Bala Debnath and Ors., A.I.R. 1971 S.C. 1028, it was observed as under:-
“…Legal necessity does not mean actual compulsion, it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.” (Para 10)
11. Apart from recital in sale deed Fx.Dl which cannot by itself be accepted as a proof of legal necessity, vendor Gurdit Singh in written statement Ex.DX stated that he had the need for money for his treatment for acute asthma and DW-7 Dharam Singh stated that Gurdit Singh required money for his illness. He was living with his wife in the village and was cremated in the village. He was an old man. It is also on record that the plaintiffs were living in Amritsar. In Ex.Dl, Gurdit Singh has given his age as 85 years. The vendee, thus, discharged the burden that he was bona fide satisfied about the fact that the vendor needed money for a legal necessity. The plaintiffs have not established that Gurdit Singh was not ill or was not of advanced age or that he was being looked after by the plaintiffs or that sale was for any immoral purpose. Merely because Gurdit Singh is shown to have money to his credit in the bank account was not enough to show that he had no legal necessity.
12. In view of the above, sale in question cannot be set aside the transaction of sale is held being bonafide and for legal necessity. Once it is so, even if the suit is to be held to be ancestral or bar under order 2 Rule 2 CPC is held not to be applicable, suit of the plaintiffs cannot succeed. According, the appeal is liable to be dismissed.
13. I now come to the case law cited by the learned counsel for the appellants. Deci- sions in Manohar Lal and Brij Lal’s cases (supra), are on the question of restriction on alienation of ancestral property without legal necessity. There is no dispute about the proposition laid down therein but the said judgments do not help the appellant in view of the finding that sale was for legal necessity. Decisions in Madhukar, Jagdish Singh, Ishwar Dass Jain, Ved Parkash Ujagar Singh and Dilbagrai ‘s cases (supra), are on the question of scope of second appeal if some evidence is misread or ignored. There is no dispute about the proposition laid down therein. On the question of legal necessity, the courts below have not misread or ignored any evidence. Decision in Gurjit Singh’s case (supra) is in regard to applicability of bar under Order 2 Rule 2 CPC. As already ob- served, even if the said bar is to be ignored, since finding on legal necessity has been upheld, this point does not help the appellants.
14. For the above reasons, this appeal is dismissed.