JUDGMENT Devinder Gupta, J.—This Regular Second Appeal by plaintiff-appellant is against the judgment and decree of District Judge, amirpur passed on 17th September. 1984, allowing the appeal of defendant-respondents and dismissing the plaintiffs suit thereby reversing the judgment and decree passed on 19th October, 1981 by Senior Sub-Judge, Hamirpur through which the plaintiffs suit had been decreed. 2. Malkiat Singh alias Subhash plaintiff on 9th June, 1969 instituted a suit which has given rise to the filing of the instant appeal, claiming a decree for possession of the suit property being 1/2 share in 212 Kanals 6 Marlas of agricultural land situate in Tika Saur in tehsil and District Hamirpur, alongwith a double storeyed Pacca residential house within Abadi and land underneath. The basis for the decree, as stated in the plaint was that the suit property, in the hands of his father was ancestral qua him and the parties to the suit, alongwith his father Lal Singh, being agriculturists Rajputs of Tehsil Hamirpur, were in the matter of alienation governed by the agricultural custom, according to which such property could not be sold by the holder thereof without any legal necessity. Since, as it was averred in the plaint, Lal Singh was a spend thrift and addicted to liquor and other vices, taking undue advantage of his weakness, defendants who were his collaterals and holder of remaining half share in the property got transferred the entire property, in their name on the basis of a deed of sale dated 7th December, 1959 registered in the office of sub-Registrar, Hamirpur on 9th December, 1959. Lal Singh was stated to be an owner of considerable property having no necessity to dispose of any part of the property and there being no pressure on the estate, the alienation of the suit property in favour of defendants was claimed to be without any legal necessity and as such it was claimed that the same being prohibited under custom, as such was ineffective and inoperative upon his rights. Plaintiff claimed that the sale was made by his father when he was only three months of age and since now his father had expired four years prior to the institution of the suit, he was entitled to claim possession of the suit property to which defendants have acquired no right. The plaintiff being minor, suit was instituted through his mother being the natural guardian. 3. The plaintiff being minor, suit was instituted through his mother being the natural guardian. 3. The suit was contested by the defendants, who, on 26th March, 1970 filed their written statement, in which they simply denied the averments made in the plaint. The defendants denied that the suit property was ancestral in the hand of alienor qua plaintiff or that the parties were governed by custom. Defendants also denied the averments that Lal Singh was spend-thrift, drunkard or had other vices. It was asserted that sale was for valid consideration and for legal necessity, What that legal necessity was, was not pleaded. By way of Preliminary Objection, it was alleged that suit was within period of limitation. 4. Issues in this case were framed on 19th June, 1970, plaintiff was called upon to lead evidence. Plaintiff examined five witnesses in affirmative and closed his evidence on 16th December, 1971. Defendants were thereafter called upon to lead their evidence. No evidence was led till 29th June, 1974 on one pretext or the other, though various opportunities were afforded. On 29th June, 1974, an application, seeking amendment of written statement was moved which was allowed on 28th September, 1974. Defendants were permitted to incorporate in the written statement the details of legal necessity. The details, which were incorporated were that since Lal Singh at the time of sale had already left Village Saur and started residing with Shri Kanshi Ram, his father-in-law at Enfield Grant, Chuharpur in Dehradun (U P.), where he intended to purchase property since the same was available at Cheap rates, transfer by him was made in their favour for better management of the property. It was further averred that Lal Singh had already entered into negotiations for purchase of property but since he died very early, his widow Satya Devi had to enter into litigation. After the amended written statement was taken on record, the defendants were again called upon to lead evidence. They started leading their evidence on 29th November, 1975 and closed it on 7th February, 1978. The plaintiff thereafter led his evidence in rebuttal. 5. The trial Court held the suit to be within limitation. It also held that the plaintiff and Lal Singh were governed, in the matters of alienation according to custom, according to which ancestral property could not be alienated without legal necessity and without the consent of male descendents. The plaintiff thereafter led his evidence in rebuttal. 5. The trial Court held the suit to be within limitation. It also held that the plaintiff and Lal Singh were governed, in the matters of alienation according to custom, according to which ancestral property could not be alienated without legal necessity and without the consent of male descendents. Property held by Lal Singh was found to be ancestral in his hand. The sale made by Lal Sing in favour of defendants was found to be without any legal necessity though it was found to be for consideration. Since it was held that Lal Singh had left behind three daughters, one son and one widow, the plaintiff was held entitled to challenge the alienation only qua l/5th share in the suit property. In view of these findings, the trial Court partly decreed the suit for possession to the extent of l/5th share as claimed in the suit. 6. Feeling aggrieved, the defendants challenged the judgment and decree by filing an appeal The plaintiff did not file any cross-objection or separate appeal for modification of the judgment and decree. The lower appellate Court through the impugned judgment and decree allowed the defendants, appeal and set aside the judgment and decree of trial Court and ultimately dismissed the plaintiffs suit with costs throughout. The lower appellate Court held that at the time of sale there was an effective representation made by Lal Singh that he wanted to dispose of the property in suit, to enable him to purchase property some where else and since he had already settled at Dehradun, therefore, the same was held to be for legal necessity. It also found that there was no evidence produced on record by plaintiff that the entire money which Lal Singh realised by sale of the suit property was spent on drinking. Drinking was held to be fashion of the day and not a sin. This judgment and decree of the lower appellate Court is under challenge in this second appeal. 7. I have heard learned Counsel for parties and have also gone through the record. Drinking was held to be fashion of the day and not a sin. This judgment and decree of the lower appellate Court is under challenge in this second appeal. 7. I have heard learned Counsel for parties and have also gone through the record. The main argument on behalf of the appellants was that neither in the original written statement, nor in the amended written statement, a plea was raised by the defendants that they had made proper and bonafide inquiry as to the existence of the alleged necessity or that they did all that was reasonable to satisfy themselves as to the existence of such necessity. It was urged that the plea, which the defendants had taken, after the close of plaintiffs evidence by way of amendment in the written statement was that there was a legal necessity in fact and since it was a specific legal necessity which had been alleged by the defendants, which they had failed to prove on record, the approach of the lower appellate Court was wholly erroneous wherein the case was dealt with on altogether different footings of there being effective representation by the alienator and defendants having made bonafide inquiry as to the existence of the alleged necessity It was contended that when the plea was taken by the defendants to the effect that there was a legal necessity in fact, they were bound to prove that in fact such necessity did exist but facts on record were otherwise. There was nothing on record to suggest that alienor had as on the date of the sale already shifted to Dehradun or entered into any negotiations for purchase of the property. There being no pressure on the estate the impugned sale cannot be held to be for a legal necessity. Lastly, it was contended that sale of ancestral property with a view to purchase property elsewhere cannot be held to be for a legal necessity at all when there was nothing on record that there was any pressure on the estate due to which be was compelled to change the place of his residence or that hardly there was any income from the property which would have compelled the alienor to shift to some other place 8. The learned Counsel appearing for respondents has tried to support the judgment and decree of the lower appellate Court by urging that sufficient averments were made in the original written statement and since amendment was allowed by order of Court subject to payment of cost which had been accepted, the plea which was taken in amended written statement will be deemed to be incorporated in the original written statement aver-since the day when written statement was originally submitted and further that the plea which was raised that the sale was for legal necessity was sufficient and had been duly proved on record They being purchasers were not bound to see that the money which they paid at the time of sale and the money which was advanced by them at the time of agreement to sell had actually been applied by the alienor to meet the legal necessity. They being residents of Village Saur in tehsil and District Hamirpur had no means of controlling and directing the actual application of the sale proceedings. In view of this and in view of sufficient material on record no interference was called for in the findings of the lower appellate Court which had been arrived at by correct application of law. Having considered the respective arguments of the learned Counsel for the parties and having gone through the entire record, I do not find any force in what is submitted by the learned Counsel for the respondents. I find from perusal of the record that there are sweeping observations made by the lower appellate Court without there being any basis or material for the same, which has resulted in incorrect conclusions. Since the suit was instituted in the year 1969 much prior to the coining into force of the Code of Civil Procedure (Amendment) Act, 1976, and it being an appeal under section 41 of the Punjab Courts Act, it will be necessary to refer to the evidence adduced on record vis-a-vis the pleadings. 9. The sale by Lal Singh was challenged by the plaintiff on the ground that the same was made without there being any legal necessity, since the property was ancestral in the hands of Lal Singh and they were governed by agricultural custom, under which no alienation of ancestral property could be made without there being any legal necessity. 10. 9. The sale by Lal Singh was challenged by the plaintiff on the ground that the same was made without there being any legal necessity, since the property was ancestral in the hands of Lal Singh and they were governed by agricultural custom, under which no alienation of ancestral property could be made without there being any legal necessity. 10. As observed above, it was pleaded in the original written statement by defendants that the sale was for legal necessity but no plea was raised therein as to whether they being the purchasers had made any inquiry into the necessity for the sale or whether there was a legal necessity in fact. The Written Statement nowhere pointed out that what that legal necessity was. The written statement was filed on 26th March, 1970. After the plaintiff had closed his evidence, amendment was sought wherein a plea was raised that Lal Singh had already shifted and settled at Dehradun and had also entered into negotiations for purchase of property, for which purpose the property in suit was sold and it was a legal necessity. Even in the amended written statement, there was no plea raised that any inquiry was made by the defendants about the alleged necessity It may be noticed that defendants are not strangers but collaterals of Lal Singh. 1/2 share in the suit property was owned by Lal Singh and the remaining half was owned by the defendants It is not disputed, during the course of hearing of the appeal, obviously so in view of the concurrent findings recorded by the Courts below, that the property was ancestral qua the plaintiff in the hands of Lai Singh and they were governed by agricultural custom in the matter of alienation under which no sale of such property could have been made without legal necessity. Another fact which may be noticed at this stage is that Lal Singh after the impugned sale was not left with any property what to say of ancestral one. He disposed of the entire holding including a double-storeyed Pacca residential house standing in the Abadi for a consideration of Rs. 10,000 only. Original Sale-deed was not produced on record. Another fact which may be noticed at this stage is that Lal Singh after the impugned sale was not left with any property what to say of ancestral one. He disposed of the entire holding including a double-storeyed Pacca residential house standing in the Abadi for a consideration of Rs. 10,000 only. Original Sale-deed was not produced on record. It was stated by the defendants that the same had been lost, only a copy thereof has been proved on record as Ex, D-l, which is at page 231 of the file, Another copy of the sale-deed, which though nor. marked is also on record at page 137 The lower appellate Court proceeded on the assumption that there is a recital therein to the effect that vendor had represented that he wanted to dispose of the suit property to enable him to purchase property somewhere else. With the help of the learned Counsel appearing for the parties, I have gone through the contents of both the copies but I have not been able to find even a slightest reference therein about the alleged representation. No reason is stated therein as to why Lal Singh was disposing of his entire property. The lower appellate Court, as such proceeded on totally erroneous assumptions, which has resulted in wholly incorrect conclusions Though the defendants took up a plea that Lal Singh had already settled at Dehradun and shifted from the village when sale was made in their favour, but from the opening part of sale-deed copy Ex. D-l, it will be seen that Lal Singh, while describing himself has stated to be the resident of Village saur in district Hamirpur Nowhere it was stated that he had shifted to Dehradun or was intending to shift to Dehradun. 11. Defendants knew that the property was ancestral in the hand of Lal Singh. It was a joint property. They were the owners of remaining 1/2 share therein. They were dealing with Lal Singh. In these circumstances when they knew that under the custom, property could not be sold without legal necessity, the burden lay upon them to prove either that there was legal necessity in fact or that they made proper and bonafide inquiry as to the existence of the necessity and did all that was reasonable to satisfy themselves as to the existence of the necessity. Obviously, they were not bound to see that the consideration paid by them to Lal Singh was applied to meet the necessity. In the absence of there being any plea that any bonafide inquiry was made of the existence of legal necessity, no amount of evidence can be looked into that such and inquiry was made However, even from the evidence, I do not find that a case has been made out by the defendants that any bonafide inquiry was made as to the existence of any legal necessity. Ram Dayal one of the defendants appeared as one of the witnesses on 7th December, 1978. He has stated that a sum of Rs. 10,000 paid to Lal Singh for purchase of the property since he wanted to purchase the property in Dehradun where the land was irrigated one and was available cheaply. The suit property was adjacent to forest and was prone to animals. Suit land was mostly Banjar and Lal Singh, being alone, was not in a position to look after the same Father-in-law of Lal Singh and his other relations prior to sale in their favour, had already settled at Dehradun. where they had already purchased property, Lal Singh was also taken by them to that place, who shifted alongwith his family. Lal Singh had also entered into some negotiations for purchase of property and had also paid earnest money This witness was not in a position to state as to the particulars of the land which Lal Singh bad intended to purchase, the person with whom he had entered into negotiations. 12. Defendants in order to prove this fact placed reliance on some documentary evidence. Copy of judgment and decree-sheet from the file of Munsiff, Dehradun was tendered. Copy of judgment was not allowed to be taken on record by way of evidence by the trial Court but the lower appellate Court admitted the same in evidence and was marked as Ex. X-l. Copy of Decree-sheet is Ex D-2. Reading of both these documents would show that Satya Devi widow of Lai Singh for herself and on behalf of her minor children appears to have instituted a suit through one Amin Chand Contractor against Mr Harry, Cecil and others Sons of Mr, Barnabas of Grant Land Enfield Village of Dehradun for recovery of Rs 505 on the basis that a sum of Rs. 1,000 was borrowed from Lal Singh by the defendants therein in order to enable them to pay some Government loan and in consideration thereof on 1st March, 1964, an agreement was entered into between Lal Singh and the defendants therein for sale of some property in favour of Lal Singh but defendants had failed to execute Sale-deed. It was claimed that agreement was void and on that basis decree for Rs. 505 was claimed. The suit appears to have been decreed on 22nd March, 1968. It is very strange that when plaintiffs witnesses were examined no question was put to them, that such a suit had been filed by Satya Devi. It was also not pleaded in the written statement that such a suit had been filed. It is not a copy of judgment and decree in a Civil Suit inter se parties but inter se Satya Devi etc. and the aforementioned Mr Harry etc. Relevancy of these documents was seriously disputed by the learned Counsel for the appellant. It was urged that on the face of these copies, it will be seen that the suit appears not to have been filed by Satya Devi personally but through one Amin Chand. From the particulars of Amin Chand given therein, it will be seen that it is the same person, who has appeared in the present proceedings as a witness on behalf of the defendants. In his statement, he has nowhere stated that such a suit was filed in the Court at Dehradun. On the other hand, the witness stated that Shri Lal Singh in his presence never entered into any agreement for sale of any property. It is not shown on record that Satya Devi as a matter of fact had actually herself had filed a suit in Civil Court at Dehradun. No effect has been made to prove the agreement, alleged to have been entered into by Lal Singh for purchase of property. In the list of witnesses, name of Harry etc. was mentioned, but they were given up. A doubt has been created about genuineness of the proceedings as to whether a suit was at all filed by Satya Devi or it was got manipulated. The property in suit was sold in favour of defendants by Lal Singh in December, 1959. Ex. In the list of witnesses, name of Harry etc. was mentioned, but they were given up. A doubt has been created about genuineness of the proceedings as to whether a suit was at all filed by Satya Devi or it was got manipulated. The property in suit was sold in favour of defendants by Lal Singh in December, 1959. Ex. D-3, which is a copy of entries in revenue records, shows that it was on 2nd April, 1960 that the father-in-law of Lal Singh had for the first time purchased some agricultural property in Village Enfield in Dehradun. Perusal of documents Ex. X-l and D-2 would further show that Lal Singh, if at all, had entered into an agreement for purchase of property, had done so somewhere in the year 1964. The question which arises for determination in these circumstances is as to whether there was any necessity, as on the date of sale, that is, 7th December, 1959, for Lal Singh to have disposed of his entire ancestral property and thereby deprived his wife as well as minor son of three months of age and that whether it was a bonafide act for the benefit of the estate. Ft has not been shown that there was any pressure on the estate or the pressure was of such a nature which would have compelled him to have disposed of the entire property. The extent of the suit land, as noticed above was 1/2 share in 212 Kanals 6 Marlas, out of which 145 Kanals 9 Marlas was under cultivation and the remaining 66 Kanab 77 Marias was uncultivable A portion of the property was under tenancy but 116 Kanals 5 Marlas of land was under self-cultivation, out of which 82 Kanals 14 Marlas was cultivable and 33 Kanals and 11 Marlas uncultivable. Out of the cultivated area 64 Kanals 3 Marlas was double crop land whereas 17 Kanals 12 Marlas was single cropping area and 19 Marlas was barren. It cannot be said that 82 Kanals 14 Marlas of land out of which he had 1/2 share was not yielding any income at all to him. Out of the cultivated area 64 Kanals 3 Marlas was double crop land whereas 17 Kanals 12 Marlas was single cropping area and 19 Marlas was barren. It cannot be said that 82 Kanals 14 Marlas of land out of which he had 1/2 share was not yielding any income at all to him. No evidence has been led about the income from the land The act of having disposed the entire ancestral property in these facts and circumstances, even if it be assumed that it was for purchase of property cannot be said to be an act of prudent management or for the benefit of estate. What is a legal necessity depends upon. the facts and circumstances of each case. 13. There was a conflict of opinion as to the meaning of words "for the benefit of the estate” which had occurred in the judgment of Judicial Committee in Hunooman Persaud v. Mussumat Babooee, (1856) 69 Moores Indian Appeals One view was that a transaction cannot be said to be for the benefit of the estate, unless it is of a defensive character calculated to protect the estate from some threatened danger or destruction. Another view was that for a transaction to be for the benefit of the estate it is sufficient if it is such as a prudent owner would have carried out with the knowledge that was available to him at the time of the transaction. The Supreme Court in Balmukand v, Kamla Wati and others, AIR 1964 SC 1385 considered the divergent views in number of judgments and observed that for a transaction to be regarded as for the benefit to the family, it need not be of defensive character and further held that in each case, the Court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit to the family at the time it was entered into. Looking at the facts and circumstances of the case and as observed above, Lal Singh alienor was having a family to support and the property alienated was the only ancestral property including a double-storeyed residential house The entire property was disposed of. The ground pleaded by alienors was that he had already settled at Dehradun and had entered into some negotiations for purchase of property and wanted the amount to purchase the said property. The ground pleaded by alienors was that he had already settled at Dehradun and had entered into some negotiations for purchase of property and wanted the amount to purchase the said property. The alienors have failed to produce any evidence on the record that as on the date of sale, Lal Singh had actually shifted to and settled at Dehradun or that any agreement had been entered into as on the date of sale. No evidence has been led about the market value of property at Dehradun during those days or that there was less income or absolutely no income from ancestral property. By producing documents Ex. X-l and D-2, alienees tried to show that some agreement was entered into, by Lal Singh for purchase of the property, but from the record it will be seen that if at all such an agreement was entered into, the same was in the year 1964. But from the evidence it cannot be held that Lal Singh had at all entered into such an agreement. Nothing is brought on record as to the extent of the land or its income or whether the alleged land would have yielded income more than the income of ancestral property. The onus lay heavily on the alienees to justify the alienation and to prove the same They in the facts and circumstances have failed to justify the alienation. Sale of the Joint Family land by Manager without any legal necessity and for the purpose of purchasing some ether land elsewhere, when such a purchase was not found to have been made at all was in Nirmal Singh v. Satnam. AIR 1960 Raj 313 held as not justified on the doctrine of "benefit of estate". In Helava v. Sesigowda and another, AIR 1960 Mysore 231, sale by the father, of the entire family property for an inadequate price simply because his wife was not willing to come and stay with him because of which he was compelled to leave his own village and stay with his father-in-law was also not held to be justified on the ground that it was not beneficial to the family estate. The legal necessity as pleaded by the defendants in this case cannot be said to have been proved by them and they, as observed above, have miserably failed to justify alienation by Lal Singh. The legal necessity as pleaded by the defendants in this case cannot be said to have been proved by them and they, as observed above, have miserably failed to justify alienation by Lal Singh. The holder of an ancestral property cannot deprive those persons who have interest therein by birth, by entering into negotiations for sale of a property on the ground that by its sale land somewhere else is to be purchased. The said act cannot be justified on the doctrine that it would have benefited the estate. 14. The observations made without there being any material for the alleged benefit by the lower appellate Court to the effect that plaintiff was not in a position to prove that the entire sale consideration was spent by his father on drinking or leading a luxurious life and consequent conclusions arrived on such observations that the sale was for legal necessity are further based upon erroneous assumptions that wine may be taken moderately, since it was a fashion of the day, and virtue in some sections of the society, though it may be as in 100 years ago. These observations were without there being material on record and are not at all justified in the facts and circumstances of the case. 15. In view of the aforementioned observations and findings, it has to be held that the alienation made by Lal Singh of the suit property in favour of the appellant was without any legal necessity and as such not binding upon the right of plaintiff-appellant according to the custom. The findings to the contrary recorded by the lower appellate Court as such deserves to be set aside. No other point was urged. 16. In view of above, the appeal is allowed. Judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is restored. The plaintiff-appellant will have his costs throughout. Appeal allowed.