Alienation of the joint family estate by the father for the payment of antecedent debts is justified and cannot be questioned by the sons, even if there was no pressing necessity.

G. K. MISRA, J.

( 1 ) PLAINTIFF is the appellant. Her case may be stated in brief. Defendant 1 is the husband of defendant No. 2 and father of defendants 3 to 7. They constitute a hindu Mitakshara joint family of which defendant 1 is the Karta. They have their houses in the town of Athmallik and also in village Kandhapara whereto their agricultural lands are situate. Defendant 1's wife was seriously ill. So he wanted to shift his residence from the athmaltik town. For the purpose of purchasing a new house-site and constructing a house thereon and for repayment of loan incurred from the Co-operative Bank, defendant 1 wanted to dispose of the house site mentioned in the schedule attached to the plaint and sold the land with the house thereon to the plaintiff for rs. 1175-00. On 2-2-1959, he executed a contract for sale (Ex. 4) on payment of rs. 100/ -. On the next day, he executed a registered sale-deed (Es. 1) on behalf of himself and his minor sons and received the balance of Rs. 1075. 00. A formal delivery of possession was given; but the defendants were allowed to continue in the house for 2 months. As the house was not subsequently given possession of, the suit is filed for declaration of title and recovery of possession.

( 2 ) DEFENDANT 1 was ex parte. Defendants 2 to 7, contested the suit challenging the alienation. They averred that there was no necessity for purchasing a new house site and there was also no immediate necessity for liquidating the loan from the co-operative Bank. They further stated that defendant 1 was not the Karta of the family and the sale was not for adequate consideration. It is admitted that defendant 2 was attacked with tuberculosis; but on proper treatment being held at Kalabandi Tuberculosis Hospital, she had fully recovered and returned to that suit house where she resides for the last three and half years and that there was no necessity for shifting from the suit house. The suit property is the ancestral family house and defendant 1 had sufficient earnings from his business as a tailor and had no necessity to effect the sale.

( 3 ) THE learned Munsif recorded the following findings :-

(i) Defendant No. 1 was the Karta of the family at the time of the sale. (ii) The sale was for adequate consideration and the consideration had been paid. (iii) The sale was for payment of antecedent debt which defendant 1 had incurred from the Athmallik Land Mortgage Bank by execution of the registered mortgage bond (Ex. 2) dated 26-2-1958 for Rs. 800/ -. (iv) The sale was for acquisition of a new house site and construction of a house thereon. (v) Defendant 1 did not act prudently in disposing of the suit house-site and the house.

On the last finding he dismissed the suit.

( 4 ) BEFORE the learned Subordinate Judge the aforesaid findings (i) to (iii) were not assailed. He held-

(a) ''it is extremely doubtful if defendant No. 1 alienated the suit property for the purpose, of acquiring a new homestead and constructing a house thereon. " (b) "the plaintiff has not been able to satisfy why it was so vary urgent to transfer the suit property for the payment of loan under Ext. 2 which was payable in easy instalments in course of 7 years. xxxx thus there was no pressing legal necessity for transfer of the suit property to the plaintiff under Ext 1. "

( 5 ) BOTH the findings are pure findings of fact and are not assailable in second appeal. Mr. Ranjit Mohanty, however, urged that the major part of the consideration under the sale was for the purpose of repayment of the antecedent debt under Ext. 2 and even without pressing necessity the father had the cower to alienate the joint family estate for discharge of the antecedent debt. The total consideration under the sale is Rs. 1175/ -. It was conceded on either side that by the date of the sale en 3-2-1959, Rs. 850-00 was payable under Ext. 2 out of which Rs. 107. 40 np had been paid. So the balance of Rs. 752. 60 n,p was payable towards the dues under Ex. 2. The amou