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Pachkauri Raut and anr. Vs. Ram Khelawan Chaube - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All306; 29Ind.Cas.749
AppellantPachkauri Raut and anr.
RespondentRam Khelawan Chaube
Excerpt:
hindu law - joint family--alienation by father--attestation by major son--legal necessity--karta--suit by minor son to set aside alienation, maintainability of--consent--attestation. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - those cases of this court iu which it has been held that in certain suits the whole of the joint hindu family may be effectively represented by the karta or manager of the same have no bearing on the point now in question and in no way affect the correctness of the principle above stated......alone, that gajadhar prasad does not join in making the same and that his mere attestation of the sale-deed can have no effect upon the plaintiff's rights. a further plea has been added to the effect that the sale should not have been set aside without a declaration that the purchase-money is binding as a charge on the share of gajadhar prasad whose attestation of the sale-deed makes him, it is contended, a consenting party to the sale. i should have been inclined to doubt, if i had to determine this question as against gajadhar prasad, whether consent could rightly be inferred from mere attestation in the absence of the evidence; but the question does not arise, in view of the fact that the defendants-appellants have not made gajadhar prasad a party to this appeal. the plaintiff, bam.....
Judgment:

Piggott, J.

1. This was a suit by a Hindu son to contest an alienation made by his father during the minority of the plaintiff. It appears that there was a joint family consisting of Ganesh Prasad and his two sons, Gajadhar Prasad and Ram Khelawan. On 30th June 1905 Gajadhar Prasad being at the time a major and Ram Khelawan a minor their father, Ganesh Prasad, execute a deed of sale purporting to convey a 6-pies share in certain zemindari property to Musammat Ram Kali, the predecessor-in-title of the defendants-appellants. The share thus conveyed was part of the ancestral property of the joint undivided family c n-sisting of Ganesh Prasad and his two sons. The deed of sale was signed by Gajadhar Prasad as an attesting witness. The latter did not, however, join in executing the deed, which is and purports to be a conveyance by Ganesh Prasad alone. Both the Courts be low have held that the plaintiff, ram Khelawan, is entitled to contest the alienation, the finding being that there was no legal necessity for the sale. In second appeal to this Court it is contended that this was an alienation by a manager of a joint Hindu family acting as such and that all the members of the family are bound by the sale. The powers of a Hindu father as manager of a joint family are extensive; but they do not extend to the alienation of joint ancestral family property otherwise than for legal necessity. Those cases of this Court iu which it has been held that in certain suits the whole of the joint Hindu family may be effectively represented by the karta or manager of the same have no bearing on the point now in question and in no way affect the correctness of the principle above stated.

2. In the second place, the appellants ask the Court to treat the sale in question as an alienation by all the adult members of the joint family and, therefore, binding upon the plaintiff, Ram Khelawan, who was at the time a minor member of the said family. To this it is a sufficient answer that the alienation purports to be by Ganesh Prasad alone, that Gajadhar Prasad does not join in making the same and that his mere attestation of the sale-deed can have no effect upon the plaintiff's rights. A further plea has been added to the effect that the sale should not have been set aside without a declaration that the purchase-money is binding as a charge on the share of Gajadhar Prasad whose attestation of the sale-deed makes him, it is contended, a consenting party to the sale. I should have been inclined to doubt, if I had to determine this question as against Gajadhar Prasad, whether consent could rightly be inferred from mere attestation in the absence of the evidence; but the question does not arise, in view of the fact that the defendants-appellants have not made Gajadhar Prasad a party to this appeal. The plaintiff, Bam Khelawan, very properly impleaded Gajadhar Prasad along with the successors-in-title of the vendee. When the suit had been decreed by the Court of first instance and the vendees successors carried the matter in appeal to the District Judge, they did not make Gajadhar Prasad it party to their appeal. What they really contended for in the lower Appellate Court was a finding that there was legal necessity for the transfer, in that the consideration had gone towards paying off antecedent debts incurred by the vendor, Ganesh Prasad. If this could have been established the plaintiff could, of course, have been bound by the alienation. The finding of both the Courts below has been in favour of the plaintiff on this point. I do not find any force in the legal pleas now taken before this Court and I dismiss this appeal withcosts, including fees on the higher scale.


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