Back
1962 Supreme(SC) 143
SUPREME COURT OF INDIA
A.K. SARKAR, K. SUBBA RAO AND J.R. MUDHOLKAR, JJ.
Radhakrishnadas and another, Appellants
Versus
Kaluram (dead) and after him his heirs and legal representatives and others, Respondents.
Civil Appeal No. 49 of 1958, dated 10-4-1962.
Advocates appeared
Mr. S. P. Sinha, Senior Advocate (M/s. Yogeshwar Prasad and M. 1. Khowaja, Advocates, with him), for Appellants; Mr. Achhru Ram, Senior Advocate (Mr. Ganpat Rail Advocate, with him), for Respondents Nos. 1 (a) to 1 (d), 2 and 4.
ACHHRU RAM, GANPAT RAI, M.I.KHVAJA, S.P.SINHA, YOGESHAR PRASAD
The alienee must prove the necessity for a transaction, not the specific application of all consideration. A manager's execution binds the joint family estate. Under the C.P. Tenancy Act, the phrase "all rights and privileges" constitutes an express transfer of cultivating rights in sir land.
Headnote:(A) Hindu Law - Joint Family Property - Legal Necessity - Alienation - Burden of proof on alienee to establish the necessity for the transaction, but not required to show that every bit of the consideration advanced was actually applied for meeting family necessity (Para 5).
(B) Hindu Law - Manager of Joint Family - Capacity to bind estate - If one of the executants to a sale-deed or mortgage-deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have an interest in that estate, regardless of whether a junior member, who may be a minor, also joined in the execution (Para 6).
(C) C.P. Tenancy Act, 1920 - Section 49(1)(a) - Transfer of sir land - Requirement of express agreement to transfer cultivating rights - The use of the phrase "all rights and privileges" in a sale-deed transferring sir and khudkast lands constitutes an express agreement to transfer the cultivating rights, as it encompasses everything the transferor possesses in that land (Para 8).
Facts of the case:
Joint family property consisting of two villages was sold by the father, acting for himself and as guardian for his minor son and another son (described as a major). The sale was challenged by the sons on the grounds that there was no legal necessity for the sale, the consideration was inadequate, one son was actually a minor at the time of execution, and the cultivating rights in the sir lands were not expressly transferred under the tenancy law.
Findings of Court:
The court found that legal necessity existed for the majority of the consideration. It held that the transaction was binding on the son who was a minor because the father, as the manager of the family, had executed the deed. Furthermore, it determined that the language of the sale-deed effectively transferred the cultivating rights in the sir lands.
Issues: 1. Whether the alienee is required to prove the specific application of the entire consideration amount to sustain a sale based on legal necessity. 2. Whether a transaction executed by a manager binds a junior member of the family who joined the deed but was actually a minor. 3. Whether the phrase "all rights and privileges" in a sale-deed satisfies the statutory requirement for the express transfer of cultivating rights in sir land.
Ratio Decidendi: The court ruled that the alienee must establish the necessity for the transaction, but cannot be expected to control or prove the actual application of the money by the alienor. A manager does not cease to be a manager simply because a junior member joins the transaction; if the manager has the capacity to bind the estate, the transaction is binding on all. Regarding the tenancy act, "all rights and privileges" is not otiose and signifies the transfer of all interests, including cultivating rights, thereby meeting the requirement for an express transfer.
Result: Appeal dismissed.
MUDHOLKAR, J. : This is an appeal by certificate from the decree of the High Court of Nagpur dismissing the appellant s suit for setting aside sale of two villages mauza Amaldihi and mauza Gondkhami situate in Mungali tehsil, district Bilaspur.
2. It is common ground that the two villages, along with several others, were the joint family property of the appellants and their father the third defendant, Gorelal. On April 8, 1944 Gorelal, acting for himself and as guardian of his minor son Balramdas, appellant No. 2 and Radhakrishnadas, appellant No. 1, describing himself as a major executed a sale-deed in favour of two persons, Pandit Ramlal, son of Motiram, defendant No. 2 and Kaluram the first defendant for a consideration of us. 50,000. It was stated in the sale-deed that the executants were transferring full 16 annas interest in the village Amaldihi and Gondkhami together with sir and khudkast lands, grass, kothar, padia, gochar, rivers, brooks, wells, tanks bandkies orchards and gardens and houses and the like as well as the cultivated and the uncultivated lands in the village with all the rights and privileges." The entire sixteen annas share in mauza Gondkhami and twelve annas share in mauza Amaldihi was sold to Kaluram for Rs. 37,500 and the remaining four annas share of Amaldihi to Pandit Ramlal for Rs. 12,500. Out of the consideration of Rs. 50,000 a sum of Rs. 30,491-8-0 was kept with Kaluram for satisfying a mortgage decree obtained against the family by one Gayaram in respect of these two villages as well as two other villages. Similarly a further amount of Rs. 2,000 was allowed to be retained by Kaluram for paying the land revenue due in respect of these villages. The balance of the amount was received in cash. It was further stated in the sale-deed that this amount was required for performing the marriages of the appellant No. 1 Radhakrishnadas and Gorelal s daughter Ramjibai, who were both stated to be majors. The possession of the property sold was handed over to the defendants 1 and 2 who are respondents 1 and 2 to the appeal.
3. On May 5, 1945 the two appellants instituted a suit out of which this appeal arises. It was contended in the suit that since the income of the family was Rs. 7,000 per year considerable savings could be made out of it after defraying the expenses of the family. There was, therefore, no necessity for executing the sale-deed. It was stated that the consideration for the sale was extremely low, bearing in mind the value of the two villages. It was further stated that the appellant No. 1 who was one of the executants of the sale-deed was in fact a minor on the date of its execution and, therefore, the document is void in so far as his interest in the property sold is concerned. It was then stated that the sale-deed did not purport to transfer the cultivating rights in the sir lands in the two villages and, therefore, in any case only the proprietary interest in the sir land could pass to the respondents 1 and 2 under the sale.
4. The trial Court negatived the appellants contention about the want of legal necessity for the sale and found as a fact that Rs. 10,000 were required for the marriages of the appellant No. 1 and his sister Ramjibai, Rs. 7,508-8-0 for paying various creditors, Rs. 1,655-2-0 for the payment of land revenue and the balance to satisfy the mortgage decree of Gayaram Sao. It, however, found that the appellant No. 1 was a minor at the date of the execution by him was void and ineffective. But it held that he is bound by the sale-deed and that its execution by him was void and ineffective. But it held that he is bound by the sale-deed as his father Gorelal, who is respondent No. 3 to the appeal, is to be deemed to have executed the sale-deed as Manager of the family. It, however, upon a construction of the sale-deed, came to the conclusion that cultivating rights in sir were not transferred thereunder and, therefore, passed a decree in favour of the appellants for po
