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Thota Appanna Died After Disposal of the Appeal and His Lrs. and Sons Are Thota Pothiraju and ors. Vs. Nakkava Appanna and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 17 of 1959
Judge
Reported inAIR1963AP418
ActsHindu Law
AppellantThota Appanna Died After Disposal of the Appeal and His Lrs. and Sons Are Thota Pothiraju and ors.
RespondentNakkava Appanna and ors.
Appellant AdvocateS. Ramamurthy, Adv.
Respondent AdvocateE.V. Bhagiratha Rao, Adv. for ;M. Audinarayana Raju, Adv.
Excerpt:
family - sale of property of minor by guardian - property of minor sold by guardian-respondent by agreement to appellant - respondent claimed such sale fetch good price and financially beneficial to minor - appellant claimed specific performance of agreement - appeal filed before high court - no evidence shown apart from addressing such sale would fetch good price - no intention to purchase income fetching property for minor with sale receipts - no other evidence shown to prove sale is in any other way beneficial to minor - advance payment made to respondent to be paid back to at request of appellant - held, sale is not binding on minor and specific performance cannot be granted. - - , as an important question of law is involved in it, the question being whether it is competent for..........2 and 3 being minors by their natural guardian, the mother. chinnalu, agreed to sell the suit property to the plaintiff for a sum of rs. 700/-. the mother herself did not execute the agreement in her individual capacity. the plaintiff, who is the appellant in the second appeal, filed o. s. no. 331 of 1955 in the court of the district munsif, yellamanchili, for the specific performance of this agreement.the agreement recited that a sum of rs. 200/-was received by the executants and the balance of rs. 500/- was agreed to be paid before the registrar at the time of the registration of the sale deed. the 1st defendant, who is a major, pleaded that the mother also owns 1/4th share in the suit property and that all of them agreed to sell the properly to one thota atchanna for rs......
Judgment:

Chandrasekhara Sastry, J.

1. This Second Appeal is referred to a Bench by our learned brother, Manohar Pershad, J., as an important question of law is involved in it, the question being whether it is competent for the legal guardian of a Hindu minor to alienate by sale the minor's immoveable property merely for the reason that a good price is fetched by the sale and thus the minor would financially be benefited.

2. The facts which led to the filing of the above second appeal are as follows: There are three defendants in the suit who are brothers. Defendants 2 and 3 are minors represented by their mother and guardian, Chinnalu. The property involved in this suit consists of a site with two thatched horses situated in the village of Etikoppaka, Visakhapatnam district. The property was purchased under the registered sale deed, Ex. B.1 dated 29-3-52 for a sum of Rs. 100/- executed by one Nakkina Bayyanna and others, in favour of the three defendants and their mother, Chinnalu so that each of the defendants has got 1/4th share in the property and their mother, Chinnalu has got l/4th share. By an agreement, Ex. A.1 dated 31-8-55, the 1st defendant and defendants 2 and 3 being minors by their natural guardian, the mother. Chinnalu, agreed to sell the suit property to the plaintiff for a sum of Rs. 700/-. The mother herself did not execute the agreement in her individual capacity. The plaintiff, who is the appellant in the second appeal, filed O. S. No. 331 of 1955 in the Court of the District Munsif, Yellamanchili, for the specific performance of this agreement.

The agreement recited that a sum of Rs. 200/-was received by the executants and the balance of Rs. 500/- was agreed to be paid before the Registrar at the time of the registration of the sale deed. The 1st defendant, who is a major, pleaded that the mother also owns 1/4th share in the suit property and that all of them agreed to sell the properly to one Thota Atchanna for Rs. 730/-, that they had in fact executed an agreement on 7-9-55 in favour of Atchanna and that subsequently they also executed a registered sale deed on 21-9-55 in his favour and put the properties in his possession. It was also pleaded that the agreement, Ex. A-1 is a fabrication and that the recital that a sum of Rs. 200/- was paid under it is false. It was further pleaded that the agreement is not binding on defendants 2 and 3 and that in any event the plaintiff cannot get any relief with regard to the mother's 1/4th share in the properties.

The learned District Munsif found that Ex. A.1 is a genuine document and that the sale deed dated 21-9-55 which was subsequent to the filing of the suit and which is marked as Ex. B.3 does not bind the plaintiff, as the prior agreement dated 7-9-55 alleged to have been executed by the defendants is a document got up to support Ex. B.3. The trial Court also found that the amount of Rs. 200/-was paid as advance under Ex. A.1 and that the suit is maintainable against defendants 2 and 3 as the agreement is binding on them, because it is for their benefit as the properly which was originally purchased for Rs. 100/- is agreed to be sold by the guardian of the minors, who is the mother, for Rs. 700/- i.e., for seven times the original value. In the result, the suit was decreed for 3/4ths of the suit property. Both the plaintiff and the defendants appealed to the Subordinate Judge's Court, Visakhapatnam.

The learned Subordinate Judge also held that the agreement Ex. A.1 is true, but not binding on the minors. He also held that as the mother is not a party to the suit and to the agreement, the agreement cannot in any view, be enforced with regard to her 1/4th share. He further held that, since the plaintiff was not prepared to pay the entire amount of consideration, the agreement cannot be enforced even with regard to the 1st defendant's 1/4th share, though he was a major at the time of Ex. A.1. In the result, he allowed the defendants' appeal and dismissed the suit with costs of both Courts and dismissed the plaintiff's appeal. Hence this second appeal by the plaintiff.

3. The question that arises for decision is whether Ex. A.1, the agreement, is binding on the minor defendants 2 and 3. It is argued by Mr. Ramamurthy, the learned Counsel for the appellant that the agreement is clearly for the benefit of the minors since the property, which was purchased on 23-9-52 under Ex. B.1 for only a sum of Rs. 100/- is agreed to be sold for Rs. 700/- and that since the minors are being benefited financially, the agreement has to be held to be binding on the minors. In support of this contention, he referred to the decision in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree, 6 Moore's Ind App 393, (PC) and particularly to the passage at p. 423 of the report which is as follows:

'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. 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'.

The learned Counsel laid stress on the expressions 'for the benefit of the estate' and 'the benefit to be conferred upon it' and contended that, as in the present case, the property which was originally purchased for only Rs. 100/- was agreed to be sold by the guardian for Rs. 700/- under Ex. A.1, the transaction is one binding upon the minors. The next decision referred to us is of the Full Bench of the High Court of Allahabad in Jagat Narain v. Mathura Das, ILR 50 All 969 : (AIR 1928 All 454) (FB), wherein it was held that:

'In order to sustain an alienation of joint family property made by the managing member of the family, the transaction must be one which is for the benefit of the estate and such as a prudent owner would have carried out with the knowledge available to him at the time. Transactions justifiable on the principle of 'benefit to the estate' are not limited to those transactions which are of a 'defensive nature'.

At the same time, it was pointed out that :

'The degree of prudence which might fairly he required from a person who was not the sole owner of the property might naturally be somewhat greater than that which might be expected in the case of a sole owner and might well be held to be that which would be demanded in ordinary cases from a trustee.'

In that case, a Hindu father sold family property which could not be conveniently managed for the purpose of purchasing other property. It was contended in that, case relying upon the decision of the Privy Council in Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi, ILR 40 Mad 709; (AIR 1917 PC 33), that the expression 'benefit of the estate' means only.

'preservation of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portion from injury or deterioration by inundation, these and such like things would obviously be benefits.'

But the Full Bench rejected this contention and upheld the transaction as binding on the family on the finding that the adult members of the family found it very inconvenient and to the prejudice of the family's interests to retain the property and that they considered it to the advantage of the estate to sell that properly and purchase other properly more accessible with the proceeds of the sale. This decision was referred to and followed in Sellappa Chettiar v. Suppan Chettiar, (1937) 1 Mad LJ 422: (AIR 1937 Mad 496). It was pointed out that to infer from the three instances given in the passage in the judgment of the Privy Council in ILR 40 Mad 709: (AIR 1917 PC 33), that the transaction should be of a defensive nature, does not seem warranted by the language used and that those three instances are given as cases of obvious benefit, which seems necessarily to imply, far from suggesting the contrary, that cases of less obvious benefit are not to be excluded.

But it is said that the Bombay High Court took a somewhat different view in Hemraj Ditttubuva v. Nathu, ILR 59 Bom 525: (AIR 1935 Born 295) (PB). That was a decision of a Full Bench of that High Court. Even there it was held that:

'The sale of land which cannot conveniently be cultivated with other property of the minor, and the investment of the purchase money in lands which could be so conveniently cultivated; or the sale of lands in order to raise money to secure irrigation or permanent improvement of the other lands of the minor; or a beneficial exchange; or a sale in order to prevent destruction of the minor's property are transactions which would be for the benefit of the estate.'

This view is in consonance with the view expressed in (1937) 1 Mad LJ 422: (AIR 1937 Mad 496). These decisions and several others were referred to in Pundarikakshudu v. Venkayya, AIR 1953 Mad 210. It was a decision of one of us. Mr. Ramamurthy, the learned Counsel for the appellant placed strong reliance on the following passage in the judgment at p. 487 (of Mad LJ): (at p. 212 of AIR) of the report:

''The trend of the recent cases has been to lean strongly towards sustaining such alienations if they were beneficial to the family from a financial point of view or advantageous otherwise, as can be seen not only from the cases cited above but also the unreported decisions of this Court.'

These observations have to be understood in the context of the facts of that particular case where the manager of a joint Hindu family sold dry land which was not fetching any income and with the money thus obtained, purchased wet lands fetching substantial income. The alienation of the dry land under this circumstance was held to be for the benefit of the estate and binding on the members of the family.

The learned Counsel for the appellant placed very strong reliance on the decision in Thiruvengada Mudaliar, In re, 1948-2 Mad LJ 47 : (AIR 1949 Mad 260). That case arose out of an application under Clause 17 of the Letters Patent (Madras) before Yahya Ali, J. by the father and manager of the Hindu joint family, who had two adult sons and five minor sons for being appointed guardian of the ancestral joint family property belonging to the minor sons and for sanction of the sale of that, property as being beneficial to the interest of the minor sons. The property consisted of 52 acres of dry land which was valued in 1942 at Rs. 15,000/-. On the date of the application, there was a subsisting mortgage over the property for Rs. 11,000/-. The land had no irrigation facilities for the purpose of cultivation and only the palmyra trees standing on the land were leased out for the purpose of toddy extraction. But from 1st October, 1948, the family stopped getting even this income in view of the introduction of prohibition in the city of Madras and in the meanwhile, there was a rise in prices as the villages in which these lands were situated were included within the Municipal limits of the City of Madras. Therefore, the father and manager of the family was able to secure an offer of Rs. 1,95,000/- for both the plots of land

It is under these circumstances that Yahya Ali, J. found that the co-transaction was clearly in the interests of the minors and gave sanction to it, but at the same time directed that the minors' 5/8th share of the purchase money should be invested in National Savings and in Government Securities. This decision does not really help the appellant in the present case. This decision was referred to in Sengoda Goundan v. Muthuvellappa Goundan, : AIR1955Mad531 , by a Bench of the Madras High Court where also it was accepted that the sale of unproductive family property at an advantageous price for the purpose of buying other land could be supported on the ground of benefit of the family. At the same time, it was held :

'But where though the sales were for an adequate price and but for a town planning scheme the properties (dry lands) would have had no appreciable market value and were not fetching any income to the family, in the absence of proof of utilisation of the sale proceeds in the purchase of other property for the family the alienations cannot be held to be for the benefit of the family.' Rajamannar, Chief Justice, who delivered the judgment of the Bench referred to the decision of Yaliya Ali, J. in 1948-2 Mad LJ 47: (AIR 1949 Mad 260), and pointed out that the learned Judge found that the proposed sale was highly advantageous to the interests of the entire family including the minors and gave his sanction subject to proper safeguards being provided for the minor's share of the purchase money, by being invested in Government Securities. We are in respectful agreement with the view expressed in this decision.'

4. Coming to the facts of the present case, there is not even an allegation in the plaint that the proposed sale evidenced by the suit agreement, Ex. A.1 is in any way beneficial to the minors. It is not even suggested in the plaint that the guardian intended to purchase either income fetching property for the minors with the proceeds of the suit transaction of that the guardian intended to invest the sale proceeds in any other manner which would be beneficial to the minors. The plaintiff did not also adduce any evidence to prove that the transaction is for the benefit of the minors, apart from pointing out that the proposed sale is for a good price. But this alone in our view is not sufficient to make the transaction binding on, the minors. The plaintiff is not therefore entitled to a decree directing specific performance of the agreement, Ex. A.1.

5. But the Courts below have found that an amount of Rs. 200/- was received from the plaintiff under Ex. A.1 as advance by the 1st defendant and the mother, Chinnalu though there is no specific prayer in the plaint in the alternative for a decree for repayment of this amount. Such a request is made before us by the learned Counsel for the appellant. We feel that the circumstances of this case justify the grant of that request. The mother, Chinnalu is not a party to this suit and so no decree can be passed against her. The minors themselves cannot be made to pay any amount. Therefore, the appellants, who are the legal representatives of the deceased plaintiff will get a decree for Rs. 200/- against Nakkaa Appanna, the 1st defendant with interest at 6% from this date till realisation.

6. We direct the parties to bear their respective costs throughout.


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