1. Defendant No. 2 Budhi Jena being unsuccessful in both the Courts below has filed this second appeal against the confirming decision of Sri L. Panda, Subordinate Judge of Puri. The plaintiff has brought the suit for a declaration that the sale deeds dated 24th May, 1944 (Ext. A/1) and dated 9th June, 1949 (Ext. A) are invalid and inoperative against his interest. The suit property with an area 34, i.e., less than a gunth appertains to plot Nos. 287 and 289 of Khata No. 60 of Mouza Banarai. Undoubtedly this is the ancestral property of the plaintiff.
The plaintiff was absent at Rangoon for a number of years during which period the plaintiff's wife Nila Dei executed the first sale deed dated 24th May, 1944 (Ext. A/1) in favour of defendant No. 1 for herself and as guardian of her two minor sons. The second transaction (Ext. A) is by defendant No. 1 in favour of defendant No. 2. The plaintiff's main attack is that the transaction in favour of defendant No. 1 by Nila, his wife, for self and as guardian of his two minor sons, is not supported by legal necessity and further that she is absolutely incompetent, according to the concepts of Hindu law, to execute such a transaction, and the said transaction, therefore, is invalid and inoperative.
2. Indeed if the first transaction in favour of defendant No. 1 fails, the Kataala in favour of defendant No. 2 by defendant No. 1 need not be considered, and it is equally clear if the first transaction is held as binding on the plaintiff, the plaintiff's suit is bound to fail.
3. The defence is that the transaction dated 24th May, 1944 was for a consideration of Rs. 200/-which was fully paid and it was supported toy legal necessity.
4. The first question we propose to take 'P' is whether the transaction is supported by legal necessity or not. If the point is decided in favour of the plaintiff no further question would arise.
5. The trial court, even though decreed the plaintiff's suit on the ground that a female member cannot act as the Karta of the family, had come to the conclusion that the transaction (Ext. A/1) was supported by legal necessity. He has come to the definite finding on the basis of the evidence of D. W. 2 that one Banshiram had in fact a decree outstanding against the present plaintiff, and for payment of this decree the wife of the plaintiff, on behalf of the two minor sons, had to raise money by executing the sale deed. The lower appellate Court has reversed this finding without discussing the position of legal necessity at all. His decision is obsessed by the question 'whether the mother in such circumstances could alienate the property of the plaintiff and finding that according to the Hindu Law she cannot execute the transaction, he decreed the plaintiff's suit. The finding of the lower appellate Court being extremely cryptic and without discussion is not binding on us in second appeal, particularly when it is a reversing finding. The recitals in the document not only give the number of the suit brought by Banshiram against the present plaintiff but further mention that the joint family consising of plaintiff's wife and the two minor sons stood in need of money for other household expenses. D. W. 2, who was fully believed by the trial Court, says that in fact Banshiram had a decree for money as against the plaintiff.
The admitted fact as appears from the evidence of the second witness examined on behalf of the plaintiff is that the plaintiff was away at Rangoon ever since 1941 and that he came back to the village long after the transactions in suit. The plaintiff himself admits 'during the War I did not send any money to my wife.' The family is not possessed of more than three mans of land. Necessarily in the absence of the plaintiff himself, the land must have been let out on Bhag and it is quite appreciable how difficult it was for Nila to realise the Bhag produce of the land of the family. The first son, at the time of the transaction, was aged 12 and the second son was aged 8 only.
In such circumstances, there can be no other finding except that there was not only sufficient legal necessity for disposing of a portion of the family property with an area O34 but the joint family must be taken to be in great distress on account, of the father of the two minor sons and the husband of Nila being absent during War times in a very distant place as Rangoon. The finding of the learned lower appellate Court on the point of legal necessity, in our view, is illegal and most unreasonable, and no Court of Justice in such circumstances could have found as such.
6. Then comes the difficult question: whether the transaction (Ext. A/1) can be a valid transaction according to the Hindu Law. The point that arises is: 'whether a female can act as the Karta of a Hindu joint family at any time whatsoever'? On this point we will notice conflicting decisions.
The first Full Bench decision is of Nagpur High Court, in the case of Keshee v. Jagannath, AIR 1926 Nag 81 (A). The question in that case was exactly the same as before us: 'Whether a sale by a Hindu widow, who was managing the estate of her minor son and step-son of a part of the immovable property belonging to the estate for necessary purposes is valid and binding on the step-son'. Hallifax, A. J. C. observed:
'That fact is that the transferor on behalf of the minor in each case, though purporting to act as the guardian of the minor, was the manager of the Hindu family of which the minor was a member and really acted in that capacity.'
His Lordship expressed himself in the following way:
'If there is any statement of the rule of Hindy law as to who is entitled of right to be the manager of a joint Hindu family, I have been unable to find it, but I take it that any adult member of the family, male or female, is so entitled. If that is correct the person who actually executed the transfer in the present case, and indeed in each of the five other cases mentioned ..... was the manager of thefamily de jure as well as de facto.'
This decision has all along been consistently followed by the Nagpur High Court. We will only refer to another Bench decision of the Nagpur High Court reported in Commr. of Income-tax C. P. and Berar v. Laxmi Narayan, AIR 1949 Nag 128 (B). The case before their Lordships arose out of a reference under Section 66, Indian Income-tax Act, the point of law referred to being:
'Whether on the facts of the case Mt. Kesar Bai was competent to enter into a contract of parternership in her representative capacity as Karta of the undivided family consisting of herself and her two minor sons'?
A contention was raised in that case that a woman was incompetent to act as Karta of a joint family under Hindu law, as she is not a coparcener even though she is a member of the joint family. She does not take any interest by birth and has no right to take by survivorship and as manifestly she is not a coparcener, she cannot be recognised as the Karta. This contention was negatived by their Lordships with the-observation that the managership of a joint Hindu family cannot be taken to be a close reserve for males and the contention appeared as widely stated. Indeed though no text was cited before their Lordships in support of this contention according to their Lordships' view, a woman, cannot inherently be incompetent to be the manager of a joint family.
Further on a review of several authorities Including some decisions of their Lordships of the Privy Council, their Lordships observed that if a female can act as the manager of a religious endowment in which she has no personal interest, there is apparently no reason why she cannot act as the manager of a joint family estate in which she has acquired a personal interest at least. To our mind, this part of the reasoning appears to-be impressive. There is no text in Hindu Law which makes it imperative that it is only a coparcener who will be competent to be the manager of a joint Hindu family and no one else at anytime or under any circumstances.
7. But we cannot lose sight of two other important authorities taking a different view. This question came up for decision in the case of Radha Ammal v. Commr. of Income-tax Madras, AIR 1950 Mad 538 (C). The case was decided by Satyanarayan Rao and Viswanath Sastri JJ., each learned Judge giving a separate judgment. In the judgment of Satyanarayan Rao, J., there is a very bold assertion to the effect that the right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family. If a person is not a member of the coparcenary and is outside it, he has no right to claim managership of the family and to claim a representative capacity on behalf of other coparceners with reference to the dealings relating to the property of the family. The observation came while his Lordship was discussing the provisions of the new Act (Hindu Women's Rights to Property Act, XVIII of 1937). With very great respect for the learned and eminent Judge Viswanath Sastri J., we may note that the observation of Sastri J., was indeed much bolder; but nevertheless his judgment is also not supported by any text or high authority of Hindu law. His Lordship observes:
'It will be revolutionary of all accepted principles of Hindu Law to suppose that the senior most female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family.'
8. In the decision of our High Court reported in Maguni v. Labananidhi Lingaraj 22 Cut LT 228: ( (S) AIR 1956 Orissa 1) (D), Narasimham J. (as he then was), after placing the conflicting views of these two. High Courts, has mainly followed the Madras decision with respect. To us, as it appears, an adult female member of the joint family cannot ordinarily assert the right to be the Karta of the joint family in the presence of any other adult coparcener; but there is no inherent incompetency in an adult female member to be the Karta of a joint Hindu family under particular circumstances. In circumstances like this where, as in the present case, the Karta of the family was away at a great distance and there was no other coparcener who was An adult, or where on account of the death of the adult male member the family consists only of the mother and the minor sons, there being ' no inherent incompetency, the female being the mother of the minor members may manage the property on their behalf and therefore be the Karta. If this position is not accepted, it will lead to several anomalies that when the father was away at Rangoon in a family like this, all the members of the family would strave even though they were possessed of property and money could be raised by disposing of the property. But as there 'is no text on Hindu law favouring the Nagpur view and further as there is a Bench decision of our High Court taking a contrary view, we do not propose to express any final opinion on this point.
9. If indeed we were to dispose of the appeal on this ground only, we would be inclined to refer the matter to a larger Bench. But the appeal can be disposed of on a consideration of two other points which were overlooked by Nara-simham J., (as he then was) sitting with Panigrahi G. J. We think it unnecessary to refer the matter to a Pull Bench.
10. There is no rule or text of Hindu Law which forbids a minor to be Karta of the family. 'The reason for this point is as follows: In the present case if the father who is the managing member of the family is absent for a considerable length of time at a distance, his elder minor-son can act as a Karta. Indeed if he is not sui Juris, he can contract or dispose of the property through his natural guardian, the mother, and further if he is not sufficiently physically able to take charge of the management of the property, he can take the assistance of his mother. I will now quote a passage from Mulla's Hindu Law, 11th Edition, at p. 615. Towards the end of paragraph 519, the passage runs as follows:
'Capacity of a minor to act as guardian: There is no rule of Hindu Law that the managing member of an undivided family should be an adult. He may be a minor in which case he is competent to act as guardian not only of his own wife and children but also the wife and, children of another minor member of the family.'
Section 21 of the Guardians and Wards Act, 1890, provides thus:
'A minor is incompetent to act as guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child or another minor member of that family.'
The Act does not exactly postulate the provisions of Hindu law and it would be idle for us to seek for the rules of Hindu law within the four corners of the Guardians and Wards Act. But it is absolutely clear from the provisions of Section 21 that it is based upon the assumption that a minor can be a managing member of an undivided Hindu family. We do not simply rely upon the negative proposition that there is no rule prohibiting a minor to be a managing member.
But here we gain support for the position that Section 21 is based upon the positive assumption that a managing member of an undivided family can be a minor. The provisions of Section 21 came for discussion in the case of Mohideen Ibrahim Nachi v. Mohomed Ibrahim Sahib, ILR 39 Mad 608: (AIR 1917 Mad 612 (2) ) (E).
The appeal was against an order under Section 25 of the Guardians and Wards Act, and the minor being a Mohammedan aged 15 or 16. The position of the Managing member of a Hindu family came for discussion incidentally and on the provisions of Section 21 of the Guardians and Wards Act, 1890, Sadasiy Ayyar J., expressed doubts as to the position whether a minor could at all be the managing member of the Hindu family though he was the senior male member. He also in this connection having expressed doubts over the position suggested an amendment of the necessary provisions of Section 21. Even an eminent Judge like Sadasiy Ayyar J., well versed in Hindu text could not dispel the proposition that a minor could be a Karta of an undivided Hindu family, and he. did not cite any particular rule or text with regard to the question. His suggestion for amendment of Section 21 remained a suggestion for a long time and the Legislature did not think fit to amend the said provision. The learned counsel appearing on behalf of the respondents however has drawn our, attention to Section 10 of the Hindu Minority and Guardianship Act, XXXII of 1956, which provides:
'a minor shall be incompetent to act as guardian of the property of any minor.'
There is nothing to indicate that this provision was made in consonance with the recommendation made by Sadasiy Ayyar J. Moreover by reference to Section 2 of the said Act, we find
'the provisions of this Act shall be in addition to, and not, save as hereinafter expressly provided in derogation of, the Guardians and Wards Act, 1890'.
Section 21 of the Guardians and Wards Act, 1890, makes provisions for the guardianship of the person and Section 10 of 1956 Act only postulates the incompetency of the minor to be the guardian of the property of any other minor. Section 21 appears still to be good law and we may safely take the aid of the assumption underlying the provisions of Section 21 in support of our view.
11. What appears to be more important is a direct decision of the Nagpur High Court on this particular subject in the case of Trimbak Raoji T. Lonkaran Manaji, AIR 1948 Nag 324 (F). Their Lordships observed:
'There is nothing in the Hindu law so far as we have seen and nothing has been pointed out to us by Dr. Kathalay, the learned counsel for the appellants, which absolutely forbids a minor though a senior member of a joint Hindu family from occupying the status of a managing member of the Joint Hindu family, particularly when such a senior member has a capable guardian to represent him.'
They also relied upon the assumption underlying Section 21 of the Guardians and Wards Act. We are therefore of the view that in this particular transaction, the seniar male member even though a minor could act as the managing member through, his mother as the guardian.
12. There is yet another point of view on, account of which we are inclined to uphold the transaction (Ext. A/1) as binding against the present plaintiff. This view is supported by the Hindu Text, Mitakhsara in Ch. I. Sc. I para 28, which runs as follows:
'Even a single individual may conclude a donation, mortgage or sale of family immovable property during a season of distress for the sake of the family and especially for pious purposes.'
Eminent Judges of the Patna High Court have from time to time laid down the principle that the power of disposition of the property is not the monopoly of the Karta of the family. In times of distress or for pious purposes even a junior member of the family can dispose, of some portion of the joint family property. We will first refer to the judgment of Sir Jwala Prasad, an eminent Judge of the Patna High Court, in the case of Dhanubdhari Singh v. Rambirich Singh, AIR 1922 Pat 553 CG). His Lordship observed as follows:.
'In the present case defendant No. 1 was in jail in connection with some other case and, therefore, the business of the family had necessarily to be conducted by the remaining members of the family. But the rule of Hindu law upon which the act of the Karta and his dealing with the family property are binding upon the other members of the family does not restrict it to the Karta alone. It is wide enough to authorise any member of the family to deal with the family property, such as to incur debts, provided the act is done in times of distress and for family necessity.'
Here the purpose for alienation was the defence of a member of joint family which was considered to be a necessary act in order to remove the stigma of disgrace upon the whole family consequent upon the conviction of one member. But the prin-ciple recognised by their Lordships Jwala Prasad and Ross JJ., in this case applies in all force to our case also. We have already indicated the circumstances in which the transaction (Ext. A/1) was executed and we have found that in fact the family was in utter distress on account of the long continuous absence of the father (plaintiff) for years together during the period of War at a very distant place. Now therefore the junior members could alienate the property in dispute; but as they were not sui juris, they had acted through their natural guardian.
13. The position also was reiterated in a subsequent decision of the same High Court by another eminent Judge Kulwant Sahay J., in the 'Bench decision reported in Ram Das v. Tanak Singh, AIR 1928 Pat 557 (H). Following several other Patna decisions their Lordships laid down that it is not right to hold that an alienation by a junior member of a joint family is invalid, simply on the ground that it was executed by a member of the family who is not its Karta, when the same is for family necessity. Kulwant sahay J., observes as follows:
'The reasons given by the learned Subordinate Judge for holding that the conveyance under the deed of sale, dated 27th April 1922, is not binding on the joint family, are not satisfactory or convincing. The learned Subordinate Judge seems to be under the impression that an alienation by a member of a joint family who is not the Karta of the family is under no circum-stances binding on the family. He says that in order to bind the family the alienation must be by the managing member of the family & it must befor antecedent debt or for legal necessity of the joint family, and he finds that plaintiff 1 was the managing member of the family and defendant 7 was not the managing member and for this reason the sale was invalid. The broad proposition, of law acted upon by the learned Subordinate Judge is not correct. It cannot said that under no circumstances can an alienation of a joint family be binding on the family.'
Thereafter his Lordship discussed two cases of the Patna High Court Inder Chand v. Bidyadhar, 5 Pat LJ 744: (AIR 1921 Pat 48) (I), and the aforesaid case of AIR 1922 Pat 553 (G).
14. For the aforesaid reasons, therefore, we are definitely of the view that the sale deed Ext. A/1 dated 24th May, 1944 is valid and binding as against the plaintiff. In conclusion, threrefore, the judgments and decrees of the Courts below are set aside and the appeal is allowed and the plaintiff's suit is dismissed with costs throughout.
P.V.B. Rao J.
15. I agree.