The alienees of joint family property are bound to inquire into the necessity for the alienation, and the burden lies on the alienees to prove either that there was legal necessity in fact, or that they made proper and bona fide inquiries as to the existence of such necessity and did all that was reasonable to satisfy themselves as to the existence of such necessity.

Judgement

BEHERA, J . :- The defendant No.2 and upon his death, his legal representatives and defendant No.21 are in appeal against the judgement and decree passed by the learned Subordinate Judge, Balasore, holding that the sales effected by the defendant No.22 (respondent No.23) in their favour were not binding on the plaintiffs Nos.1 and 2, the sons of the defendant No.22, who are the respondents Nos.1 and 2 in this appeal.

2. The respondents Nos.1 and 2 and the wife of the respondent No.23 Trailokyanath Behera (defendant No.22) had instituted the suit for a declaration that the transfers made by the respondent No.23 in respect of the ancestral properties described in schedule "Ka" of the plaint including the sales on 25-11- 1957 in favour of the appellant No.1 (defendant No.2) under Ext. A for Rupees 100/- and in favour of the appellant No.2 (defendant No.21) on 16-10-1963 under Ext. D for Rs. 2,500/-, were not binding on them on the ground that the respondent No.23, who had taken to squandering of money in horse race in Calcutta and in gambling, had executed the sale deeds which were not for any legal necessity nor for the benefit of the estate. The defendants nos.9 to 12 and 14 to 18 were minors and were represented by pleader guardian. The original defendant No.16 died during the pendency of the suit and was substituted by her legal representatives (defendants Nos.16, 16 (ka) and 16 (kha)) The minor defendants through their pleader guardian, the defendants Nos.16, 16 (ka) and 16 (kha) and the present appellants contested the suit. The other defendants including the defendant No.22 (respondent No.23) had been set ex parte. The appellants had resisted the suit by asserting that the income was inadequate for maintenance and meeting pressing expenses of the family and the respondent No.23 had, therefore, sold the properties to meet the marriage expenses of his daughters, for repair of the house and for other household expenses. The sales, according to them, were all for legal necessity and for the benefit of the estate and they had purchased the lands after due enquiry about the existence of legal necessity. They had asserted that the respondent No.23 had not taken to gambling nor had he been spending money in horse race or for other illegal purposes.

3. The learned Subordinate Judge framed six issues. No specific issue as to existence of legal necessity was framed, but both the contesting parties led evidence, oral and documentary, in their regard and were well aware of the relevancy of the question. The learned Subordinate Judge, after an elaborate consideration of the evidence with regard to issue No.5 as to whether the plaintiffs had any right, title and interest in the suit lands and as to whether they could challenge the validity of the alienations made by the respondent No.23, came to find that the properties sold by the respondent No.23 were the ancestral properties of the family and the evidence did not warrant a conclusion that the respondent No.23 was a gambler or that he had been spending money in horse race. It was, however, found that besides lands, the respondents 1 and 2 and their father had income from trees and betel leaf garden and it was not possible to categorically say that they were always in want or were under financial stress. The learned Subordinate Judge, therefore, concluded that the sales in favour of the appellants had not been for legal necessity nor for the benefit of the estate. Accordingly, the suit was decreed.

4. Mr. Patra has submitted that the oral and documentary evidence would lead one to a reasonable conclusion that the sales as per Exts. A and D were for legal necessity as also for the benefit of the estate and were, therefore, binding on the plaintiffs. Mr. Mukherjee on the other hand submitted that on the evidence on record, the findings of the learned Subordinate Judge could not be assailed.

5. As to the proof of legal necessity and the nature of evidence to be adduced in proof the