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MatadIn Tewari Vs. Surajbali Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All522; 83Ind.Cas.32
AppellantMatadIn Tewari
RespondentSurajbali Singh and ors.
Cases Referred and Jai Narain v. Bhagwan Pande
Excerpt:
hindu law - joint family--alienation by manager--necessity--consideration, portion of, not for necessity. - - the net result of all these cases is very well summarised in the case of jai narain v......for a vendor or a manager to sell or mortgage a property for the exact amount required for family necessity but that would not justify the manager of a hindu family to mortgage or sell property for a larger amount than was absolutely necessary. in the present case, in my opinion, the sum of rs. 80 out of the total consideration of rs. 400 was not such a small amount as might be neglected in considering the question of the valid necessity for the lease. following, therefore, the principle of law laid down in gobind singh v. baldeo singh 25 a. 330 : a.w.n. (1903) 57, ram dei kunwar v. abu jafar 27 a. 494 : a.w.n. (1905) 68, nathu ram v. kanhaiya lal 80 ind. cas. 226 and jai narain v. bhagwan pande 80 ind. cas. 1006 : 20 a.l.j. 621 : (1922) a.i.r. (a.) i.r.(a.) 321 : 44 a. 683, i.....
Judgment:

Gokul Prasad, J.

1. This is an appeal by the defendant arising under the following circumstances. On the 14th of September 1917, Randhir Singh who was an uncle of the plaintiffs and has now been found to be the manager of the joint Hindu family consisting of himself and the plaintiffs executed a perpetual lease of 51 acres of land (plot No.. 148) if favour of the defendant Matadin Tewari In September 1920 the plaintiffs-respondents brought the present suit for. setting aside the lease on the ground that although the property covered by the lease was joint property, Randhir Singh who lived separate from the plaintiffs had no right to give a lease, thereof to the defendant in spite of the prohibition of the plaintiffs. They further alleged that the lease was without consideration.

2. The defendant's case in reply was that the family was a joint family and Randhir Singh was the manager thereof, that the lease was to benefit the family as a nazrana was required for re-building the family house which had fallen down. The First Court decreed the claim unconditionally. On appeal by the defendant the lower Appellate Court has modified the decree of the First Court by adding a condition that the plaintiffs must pay Rs. 320 to the defendant No, 1 within four months before the lease can be set aside and in case of their default to do so the suit should stand dismissed. The defendant comes here in second appeal and his contention is that the plaintiffs' claim should have been dismissed and that no relief should have been given to them. A large number of cases has been cited before me. The net result of all these cases is very well summarised in the case of Jai Narain v. Bhagwan Pande 80 Ind. Cas. 1006 : 20 A.L.J. 621 : (1922) A.I.R. (A.) I.R.(A.) 321 : 44 A. 683 decided by a Bench of this Court. The following observation appear at page 622 page of 20 A.L.J. -[Ed.] of the report: 'The point for determination in each case, therefore, is whether the portion of the consideration, which was not taken for legal necessity, was such a small part as ought not to be taken into account in determining whether the sale should be set aside or upheld.' In the present case the lower Appellate Court had not come to a clear finding on the question and I had, therefore, to remit certain issues to the Court below. The result of the findings is that the whole of the consideration of Rs. 400 was paid and that Rs. 306 was the amount required for legal necessity, namely the costs of re-building the house and a small sum of Rs. 14 for expenses of stamp and registration of, the lease in dispute. As to the balance of Rs. 80 out of the consideration of Rs. 400 the finding is that this money was really required to pay up a prior mortgage but this prior mortgage could not be said to be for valid necessity. It is quite true that it is not always possible for a vendor or a manager to sell or mortgage a property for the exact amount required for family necessity but that would not justify the manager of a Hindu family to mortgage or sell property for a larger amount than was absolutely necessary. In the present case, in my opinion, the sum of Rs. 80 out of the total consideration of Rs. 400 was not such a small amount as might be neglected in considering the question of the valid necessity for the lease. Following, therefore, the principle of law laid down in Gobind Singh v. Baldeo Singh 25 A. 330 : A.W.N. (1903) 57, Ram Dei Kunwar v. Abu Jafar 27 A. 494 : A.W.N. (1905) 68, Nathu Ram v. Kanhaiya Lal 80 Ind. Cas. 226 and Jai Narain v. Bhagwan Pande 80 Ind. Cas. 1006 : 20 A.L.J. 621 : (1922) A.I.R. (A.) I.R.(A.) 321 : 44 A. 683, I cannot but come to the conclusion that the view taken by the lower Appellate Court was the right view and I see no reason to disturb its decree. I confirm it and dismiss this appeal with costs including in this Court fees on the high scale.


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