1961 Supreme(Bom) 60

IN THE HIGH COURT OF BOMBAY
Naik V.A. and Abhyankar N.L. , JJ.
Appellants: Jaiprakash Mangilal Agarwal
Vs.
Respondent: Lilabai and Anr.
A.F.O.D. No. 163 of 1956Decided On: 31.10.1961
Counsels:
For Appellant/Petitioner/Plaintiff: M.R. Bobde and S.N. Kherdekar, Advs.
For Respondents/Defendant: B.B. Ranade and M. Adhikari, Advs.

Headnote:

HINDU LAW - JOINT FAMILY PROPERTY - ALIENATION BY FATHER - ANTECEDENT DEBT - AGREEMENT TO LEASE - SPECIFIC PERFORMANCE - RIGHT OF SON TO CHALLENGE - DECREE FOR SPECIFIC PERFORMANCE - EFFECT ON SON'S INTEREST - POWER OF FATHER TO ALIENATE PROPERTY - EXTENT AND LIMITATIONS - DISTINCTION BETWEEN INVOLUNTARY SALE AND VOLUNTARY DISPOSITION - EFFECT OF FATHER'S INSOLVENCY ON HIS POWER TO ALIENATE - INTERPRETATION OF SECTIONS 52(2) OF THE PRESIDENCY TOWNS INSOLVENCY ACT AND 28-A OF THE PROVINCIAL INSOLVENCY ACT - EFFECT OF BIRTH OF SON AFTER AGREEMENT TO ALIENATE BUT BEFORE DECREE FOR SPECIFIC PERFORMANCE - EFFECT OF DEATH OF FATHER DURING PENDENCY OF LITIGATION - RIGHT OF SON TO CLAIM SHARE BY SURVIVORSHIP - EFFECT OF LEASE EXECUTED BY CO-SHARER ON OTHER CO-SHARERS - CENTRAL PROVINCES TENANCY ACT - TENANCY OF SHARE OF LAND NOT DEFINED BY METES AND BOUNDS - CONDITION FOR SETTING ASIDE DECREE FOR SPECIFIC PERFORMANCE - REFUND OF CONSIDERATION RECEIVED BY FATHER - FUTURE MESNE PROFITS.

Fact of the Case:

Mangilal, a Hindu father, executed a receipt in favor of Lilabai for Rs. 8700/-. The consideration of Rs. 8700/- was made up of Rs. 2000/- in the form of two hundis, Rs. 200/- paid in cash, and Rs. 6500/- paid in cash. The document stipulated that in case the amount of Rs. 8700/- advanced by Lilabai was not paid on 1-6-1944, Lilabai was to enjoy the land from generation to generation as occupancy tenant. Mangilal did not pay the amount on the stipulated date. Lilabai filed a suit for specific performance against Mangilal. Durgabai, Mangilal's daughter from his first wife, claimed ownership of the land on the ground that it was the stridhan property of her mother Saraswatibai. Mangilal resisted the suit on several grounds, including that no consideration passed under the receipt and that the transaction was nominal, sham, and not intended to be acted upon. The trial court decreed Lilabai's claim for specific performance. Mangilal preferred an appeal to the High Court, which was dismissed. Mangilal died during the pendency of the appeal, and his son, the plaintiff, was substituted in his place. The plaintiff filed a suit for a declaration that the decree obtained by Lilabai in Civil Suit No. 9-A of 1946 is not binding on him. The trial court dismissed the plaintiff's suit. The plaintiff appealed to the Supreme Court.

Finding of the Court:

The Supreme Court held that the plaintiff was entitled to challenge the agreement to lease and the decree for specific performance obtained by Lilabai. The court found that the agreement to lease was not supported by an antecedent debt and that the father did not have the power to alienate the property for his own benefit. The court also held that the decree for specific performance could not be enforced against the plaintiff, who was born after the agreement to lease was executed and before the decree was passed. The court further held that the plaintiff was not liable to refund the consideration received by his father as a condition for setting aside the decree for specific performance.

Issues: 1. Whether the plaintiff was entitled to challenge the agreement to lease and the decree for specific performance obtained by Lilabai? 2. Whether the agreement to lease was supported by an antecedent debt? 3. Whether the father had the power to alienate the property for his own benefit? 4. Whether the decree for specific performance could be enforced against the plaintiff? 5. Whether the plaintiff was liable to refund the consideration received by his father as a condition for setting aside the decree for specific performance?

Ratio Decidendi: 1. A son is entitled to challenge an agreement to lease and a decree for specific performance obtained by a third party against his father, if the agreement and the decree are not supported by an antecedent debt and the father did not have the power to alienate the property for his own benefit. 2. An agreement to lease is not supported by an antecedent debt if the consideration for the agreement is not a debt that was incurred by the father for the benefit of the joint family or for a legal necessity. 3. The father does not have the power to alienate the property for his own benefit, except in the case of an antecedent debt. 4. A decree for specific performance cannot be enforced against a son who was born after the agreement to lease was executed and before the decree was passed. 5. A son is not liable to refund the consideration received by his father as a condition for setting aside a decree for specific performance, if the agreement to lease was not supported by an antecedent debt and the father did not have the power to alienate the property for his own benefit.

Final Decision: The Supreme Court allowed the plaintiff's appeal, set aside the decree for specific performance obtained by Lilabai, and directed Lilabai to deliver possession of the suit properties to the plaintiff forthwith. The court also directed that the parties should bear their respective costs of the appeal and the suit in the courts below.