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Nagindas Maneklal Vs. Mahomad Yusuf Mitchela - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 486 of 1919
Judge
Reported in(1921)23BOMLR1094
AppellantNagindas Maneklal
RespondentMahomad Yusuf Mitchela
DispositionAppeal dismissed
Excerpt:
.....municipality required to be pulled down was agreed to be sold by the adult male members of a joint hindu family for rs. 1975. the family was well off and there was no necessity for the sale; but the house was not needed for family purposes and would have fetched no rent. in a suit for specific performance of the contract), the minor co-parceners, the sons of the alienors, contended that the siale was not binding on them as it was not supported by ' necessity':-;deoreoing the claim, that the agreement for sale was binding on the minor co-parceners, for the adult members had properly and wisely decided to gel; rid of the property which was in such a state as to be a burden to the family.;per shah j.-' the term 'necessity' must not be strictly construed. the benefit to the family may under..........which was entered into with him by defendants nos. 1 and 2 who were the adult members of a joint hindu family. the immovable property winch contacted to sell was ancestral, and the ground upon which the suit for specific performance was resisted was that defendants nos. 1 and 2 at date of the contract had minor sons who had vested interests in the property and that as the family was in a good condition it was not necessary to sell it. both the lower courts have allowed the plaintiff's claim.2. it is cntended that defendants nos. 1 and 2 have no power according to hindu law to alienate the ancestral estate so as to bind the interests of the minor member of the family without legal necessity; and it is further contended that no legal necessity is proved and that benefit to the minors is.....
Judgment:

Shah, J.

1. This appeal arises out of a suit for specific perform, by the plaintiff of a contract which was entered into with him by defendants Nos. 1 and 2 who were the adult members of a joint Hindu family. The immovable property winch contacted to sell was ancestral, and the ground upon which the suit for specific performance was resisted was that defendants Nos. 1 and 2 at date of the contract had minor sons who had vested interests in the property and that as the family was in a good condition it was not necessary to sell it. Both the lower Courts have allowed the plaintiff's claim.

2. It is cntended that defendants Nos. 1 and 2 have no power according to Hindu law to alienate the ancestral estate so as to bind the interests of the minor member of the family without legal necessity; and it is further contended that no legal necessity is proved and that benefit to the minors is not sufficient to justify the sale. Several caases have been cited in the course of the argument on the question whether the Court could grant specific performance of the contract against defendants Nos. 1 and 2, who, it is said, were not competent according to Hindu low to convey the interests of their minor sonsin the absence of legal necessity.

3. It is, however, essential first to look to the facts found in this case. The issus raised in the lower appellate Court was, whether this contract was for the benefit of the family and binding on the minors. The finding of the lower appellate Court was against the defendants. It is found that-

The defendants meant to sell the house in suit for the evident advantage or benefit of the whole family and therefore for the benefit or advantage of thir minor sons also. If the house fill down completely and remained in that ruinous condition it would not fetch the price the plaintiff has agreed to pay. It would fetch no rent as will. The sale for Rs. 1,975 would bring annually at least Rs 100 by way of interest to the family. The transaction was thus clearly and evidently one of decided advantage to the family and to the minor sons of the Defendants and did not at all savour of the nature of speculation.

4. It is also found that the house was in a dilapidated condition, and the defendants had received notice from the Municipality to pull it down. Under these circumstances two adult members of the joint family agreed to sell this house. I do not desire to attempt to lay down any general rule as to what would constitute necessity, and as to when a Hindu father or the co-parcener may deal with the ancestral estate for the obvious benefit of the family so as to bind the minor members. Even taking it that such power to alienate can be exercised only when a clear case of necessity is made out, I think that the term ' necessity' must not be strictly construed. The benefit to the family may under certain circumstances mean a necessity for the transaction. In construing the expressions used by Vijnanesvara in the Mitakshara to explain the verse which he has quoted with approval on this point, regard must be had to the word $3$r$ used in that verse (see Mitakshara, Chapter I, Section I, paragraphs 28 and 29; Stokes' Hindu Law Books, p. 370). The expressions used must be interpreted with due regard to the conditions of modern life. I am not at all sure that Vijnanesvara intended to curtail the scope of the word jafsf while explaining it. I do not see any reason why a restricted interpretation should be placed upon the word 'necessity' so as to exclude a case like the present in which defendants Nos. 1 and 2 on all the facts proved properly and wisely decided to get rid of the property which was in such a state as to be a burden to the family. I think that the facts of the case fairly satisfy the test. It was assumed in the arguments on behalf of the appellants that the lower appellate Court decided the case on the ground that the transaction was binding simply because it was for the benefit of the minor. I think that the finding goes much further. It is not, therefore, necessary the consider whether the benefit to minors would by itself be sufficient to justify such an alienation though it is clear that, where the benefit to the minors is not made out, specific performance could not be granted. On the facts found, I am not prepared to hold that the lower Courts exercised their discretion wrongly or committed any error of law in decreeing specific perform ance of the contract. I am of opinion, therefore, that the decree of the lower appellate Court should be confirmed and the appeal dismissed -with costs.

Fawcett, J.

5. I quite agree. No doubt cases of legal necessity are ordinarily those where debts have to be paid or there is other financial pressure. But I do not think there is authority for holding that legal necessity is confined entirely to such cases. I may refer to the remarks of their Lordships of the Privy Council in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonwevee (1856) 6 I.A. 383. There they said :

The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bonufide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.

6. That was a case of mortgage, but the Privy Council have held that the same principle applies to the case of a sale: Girdharee Loll v. Kantoo Lall (1875) 14 L.R. 187, p.c.


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