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Babaji Mahadaji Vs. Krishnaji Devji, a Minor, by His Guardian Sakubai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom666
AppellantBabaji Mahadaji
RespondentKrishnaji Devji, a Minor, by His Guardian Sakubai
Excerpt:
hindu law - family necessity--manager's discretion--sale by father of ancestral estate. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - the district judge thinks that even..........hindu law, the minor was bound--one falling under the general principle of a sale for satisfying a family necessity. the district judge thinks that even a prima facie necessity, the belief in which held in good faith would protect the purchaser, did not exist. his reasons for this conclusion are that the mortgage, to pay off which some portion of the money was raised, still had some time to run, and that the bond to the purchaser, also, payment of which formed part of the consideration, probably had some time to run, too. these are not, in our opinion, reasons sufficient to disprove an otherwise apparent necessity. it might be highly desirable, in the interests of the family, that a mortgage and a bond at high interest should be paid off, even by a sale of ancestral property, rather than.....
Judgment:

West, J.

1. The suit in this case was by a minor to set aside the sale of half a house made by his father. The Subordinate Judge found that the transaction was one of a kind by which, according to the Hindu law, the minor was bound--one falling under the general principle of a sale for satisfying a family necessity. The District Judge thinks that even a prima facie necessity, the belief in which held in good faith would protect the purchaser, did not exist. His reasons for this conclusion are that the mortgage, to pay off which some portion of the money was raised, still had some time to run, and that the bond to the purchaser, also, payment of which formed part of the consideration, probably had some time to run, too. These are not, in our opinion, reasons sufficient to disprove an otherwise apparent necessity. It might be highly desirable, in the interests of the family, that a mortgage and a bond at high interest should be paid off, even by a sale of ancestral property, rather than allowed to grow to an overwhelming amount. The District Judge does not seem to have found any other grounds than those of an anticipation of the day of absolute necessity for payment for differing from the Subordinate Judge's view that the sale was justifiable, or, at any rate, apparently justifiable, under the circumstances; and the mere fact that the father did not wait until the debts and interest had grown to an unmanageable sum or to the whole value of the family estate, is not, we think, a sufficient reason for saying that the apparent ground of necessity was wholly unreal, or a mere invention of the father and the creditor. 'Family necessity' is an expression that must receive a reasonable construction, and the head of the family and those dealing with him must, in the interest of the family itself, be supported in transactions which though in themselves diminishing the estate, yet prevent or tend to prevent still greater losses. A reasonable latitude, too, must be allowed for the exercise of a manager's judgment, especially in the case of a father, though this must not be extended so as to free the person dealing with him from the need of all precautions where a minor son has an interest in the property. Here the circumstances, relied on by the District Judge, do not, in our opinion, seriously touch the good faith and propriety of the transaction.

2. As to Rs. 88, the District Judge says that no 'emergent necessity' to borrow that sum was proved. It was borrowed, after the father's illness and consequent impoverishment, to buy a stock of buffaloes with which to resume his business as a milkman. This could not be called an obligation of an immoral character. On the contrary, as the debt was contracted in order to put the father once more in the way of earning a maintenance, it was created under the pressure of a family necessity which the Hindu law fully recognizes. That law does not require the father to lie down in idleness until starvation is actually at his door before parting with the family estate; it recognizes as a necessity any emergency in which plainly, and not through any course of subtle or sophistical reasoning, the proposed transaction is the only obvious means, or the obviously proper means, of averting some greater calamity, as absolute pauperism would be.

3. For these reasons we reverse the decree of the District Judge, and restore that of the Subordinate Judge, with all costs on respondent.


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