1. This is a plaintiffs' second appeal against the appellate judgment of the Subordinate Judge of Bolangir reversing the decision of the Munsif in a suit for declaration of title and recovery of possession.
2. This appeal was originally heard by Barman, J. who considering the importance of the question of law involved in this appeal, referred it to a Division Bench.
3. The relationship of the parties to the suit excepting the defendant 1 who is a stranger purchaser, would appear from the following genealogical table :
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Ladara Matha Mangara
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Dutia (D. 2) Trutia (P.1) Ganesh |
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(Wife Mukta-D.3) Magsira (p.3) |
Parikhit (P.2) |
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Rushi Basu P.4 Gursu P.5 Dukalu P.6 Harekrushna P.7 Tika P.8
4. On 8-11-45, Mangara, father of the plaintiffs 4 to 8, Dutiya original defendant 2 and Ganesh father of plaintiff 3 and Mukta defendant 3 as the mother-guardian of Parikhit, plaintiff 2, executed a sale-deed (Ext. A) in favour of defendant 1 in respect of 14.49 acres of land as per schedule A of the plaint for a consideration of Rs. 400/-. Plaintiff 1 was then absent at Hirakud. Similarly plaintiff Nos. 4 to 7 were also absent from the village for a long time) and they all returned to the villaga in 1954. Their case is that on the alleged date of sale, plaintiff 1 his brothers Dutiya (since deceased and substituted by his widow Raimati) and Ganesh the father of plaintiff 3 were each separate in mess and property and they were also separate from Mangara. Plaintiffs 4 to 8 were also separate from their father and were in separate possession of their share of the property.
The case of plaintiff 1 was that during his absence in the district of Sambalpur his wife, defendant 3 and his minor son plaintiff 2 were in possession of his share of the land. He was regularly sending money to hishouse for the maintenance of his wife and son. The case of plaintiffs 4 to 8 is that they came to know of the aforasaid sale (Ext. A) when defendant 1 transferred certain lands to one Kuber Salema and the name of the transferee was sought to be mutated in revenue case No. 4/28 of 1955-58. They filed objection to the mutation, but the same was disallowed. Defendant 1 also started a proceeding under Section 145, Cr. P. C. against the plaintiffs 1 and 3 in respect of plot No. 242, a portion of the suit-land and they were restrained from entering upon the said land.
They further averred that the transfer in favour of defendant 1 was without consideration or necessity and it was a fraudulent and collusive transaction and the plaintiffs were not bound by the same. They therefore challenged the aforesaid sale-deed and filed the suit for declaration of title and delivery of possession of the suit-property.
5. Defendants 2 and 3 fully supported the case of the plaintiffs. Defendant 1 was the only contestant whosecase was that the plaintiffs constituted a joint family with defendant 2 as the Karta on the date of the sale. For want of necessary funds the family was unable to cultivate the land which was lying waste. Defendant 2 along with his co-sharers filed a petition (Ext. 2) before the Sub-divisional Officer, Bolangir, in the year 1944, for allowing the land to be sold by proclamation to a person of the non-aboriginal tribe as it was not possible to find out an aboriginal customer, it being the law of theex State of Bolangir that the aboriginal tribes to which the present parties belong, could not transfer their lands to a person of non-aboriginal class without the prior sanction of the authorities.
In pursuance of the aforesaid application a proclamation was issued and the defendant 1 being the only bidder, with the sanction of the then ruler purchased the suit-land by a registered sale-deed (Ext. A) on 8-11-45 for a consideration of Rs. 400/- and in the said sale-deed all the branches of the co-sharers such as Dutia, Ganesh, Mukta as the mother-guardian of her minor son Parikhit and Mangara joined. In pursuance of the sale, delivery of possession of the suit-land was also given to him and he was in possession of the same since then.
6. The learned trial Court found : (1) that all the brothers of plaintiff 1 were separate and they were also separate from Mangara's branch in mess and property and were in possession of their respective shares of the property : (2) In the absence of plaintiff 1 his wife (defendant 3) and his son (plaintiff 2) were in separate possession of his lands : (3) Dutiya was not the Karta of the family and (4) there was no clear evidence of passing of the consideration under Ext. A, nor was there any legal, necessity for the sale. He accordingly declared the sale to be invalid and decreed the plaintiffs' suit.
7. Against this decision of the trial Court, defendant 1 carried an appeal. The appellate Court reversed the decision of the trial Court holding that : (1) There was partition between Mangara on one side and plaintiff 1, Ganesh and Dutiya on the other. (2) There was no partition between Mangara and his sons and they were all joint at the time of execution of the sale-deed and Mangara represented his branch of the family as its Karta in the sale-deed. (3) The sale was for legal necessity and for the benefit of the family and was not vitiated by fraud and misrepresentation. He, however, did not give any specific finding as to whether there was any partition between plaintiff 1 and his brothers Dutia and Ganesh, nor on the question of passing of consideration.
8. As no specific finding was given on the two important issues of the case, viz., whether any consideration passed under Ext. A, and (2) whether plaintiff 1 was separate from his brothers Ganesh and Dutiya on the date of the sale-deed, Ext. A it is necessary to examine the evidence in the case so far as these two issues are concerned as they have a direct bearing on the decision of the case. Such a course is permissible even at the second appellate stage cannot be doubted in view of the provisions of Section 103 of the Civil Procedure Code where it has been provided that the High Court in any second appeal may, if the evidence on record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court.
9. So far as the passing of the consideration isconcerned there is a clear issue (issue No. 10) on thepoint. Mo doubt there is no specific issue framed by the trial Court regarding the question of separation amongst the brothers of plaintiff 1. The plaintiffs in their plaint had however, made out a case of separation and the defendant 1 in his written statement and evidence has denied the same. Though the trial Court has specifically given a finding on the point, the appellate Court has left the question in an indecisive manner.
10. Coming to the evidence it is the case of defendant 1 that he purchased the suit-property for Rs. 400/-and the full consideration had been paid. He has denied the plaintiff's suggestion that it was not paid before the Sub-Registrar. His evidence is fully supported by his witness, D.W. 2 Natabar Mohanty the scribe of Ext. A. According to him, a sum of Rs. 400/- was paid in his presence. The, oral evidence of D.Ws. 1 and 2 gets full corroboration from the sale-deed itself wherein it has been clearly recited that a sum of Rs. 400/- was received by the vendors who got the money counted. From the endorsement made by the Sub-Registrar on the back of the document it also appears that the vendors admitted to have received a sum of Rs. 400/- in cash before presentation of the sale-deed for registration. As against this evidence, there is practically nothing on the side of the plaintiff to show that no consideration did in fact pass tinder Ext. A. I must, therefore, hold that Ext. A is supported by consideration. At this stage it may be remembered that the appellate Court has found that the sale was for the benefit of the family.
11. On the question of separation, amongst his brothers, some evidence has been led on behalf of the plaintiff 1 to show that there was a, separation between him and his brothers sometime after the settlement of 1936 and that he was possessing his share of property separately when he left for Hirakud sometime in 1943 and in his absence his wife and son were in possession of his portion of the suit land. No doubt, the plaintiff has not mentioned in the plaint nor in the evidence what specific property fell to his share in the said partition, but nothing has been suggested to discredit this part of the evidence. The trial Court found on the point in fovour of the plaintiff 1.
The only ground on which this story of separation was discounted by the learned lower appellate Court was that in respect of the suit-land all the brothers had been jointly recorded. The learned appellate Court while discussing the question concluded by saying that : 'Had it been a fact that there was partition between defendant 2, plaintiff 1 and Ganesh, they would have been separately recorded in respect of the lands that were allotted to their share, when according to the previous statement of plaintiff 1 in the proceeding under Section 145, the partition took place prior to the settlement of 1936'.
But it is well settled that the settlement entries are not decisive on the question of jointness or separation of the family. No doubt, there are some minor discrepancies regarding the year of actual partition, but the clear assertion of the plaintiff appears to be that the separation took place some five years after the settlement. That may possibly explain the joint entry of the names of the parties in the settlement records of 1936.
On this point, the evidence adduced on behalf of defendant 1 does not appear to be very satisfactory. Defendant 1 comes from a village different from that of the plaintiff. Except saying that he knew the parties to beall joint and Dutiya and Mangara were Kartas of their respective branches, he has not placed any dependable evidence to rebut the assertion of the plaintiffs.
D. W. 3, the other witness who has denied the partition amongst the brothers of Dutiya has admitted in his cross-examination that he was unable to say whether there was any partition amongst them. The witness was even unable to say who were the family members of Dutiya. The evidence of D. W. 4 is no better. According to him, Dutiya and his brothers lived joint in mess and property when plaintiff 1 left the village. He admitted that he had never gone to the house of Dutiya. He was unable to speak correctly the names of the members of the family of the plaintiff. According to him, the name of the son of plaintiff 1 was one Gualu though in fact his name as appears from the plaint is Parikhit and there is no evidence to show that Parikhit had another name as Gualu. According to him, Dutiya's branch and Mangara's branch have not been separated till now. This obviously is incorrect, in view of the finding of the lower appellate court and also the evidence of defendant 1 himself. The witness admitted that he has never gone to the house of the parties nor to their lands.
Apart from the oral evidence on the plaintiffs' side, there is yet another circumstance which supports the case of partition between the brothers of Dutiya. If in fact, they were joint then there would not have been any necessity for all the three branches to sign Ext. 2, a petition filed before the S. D. O., Bolangir on 15-4-44 for settling the land with some other party. That petition appears to have been signed by Dutiya and Ganesh and has been thumb-marked by Mukta the wife Of plaintiff 1. If in fact they were all joint and defendant 2 was the Karta of the family, an application by defendant 2 alone would have been sufficient for the purpose. Taking the aforesaid evidence and circumstance into consideration, it must be held that there was separation between Dutiya, plaintiff 1 and Ganesh, father of plaintiff 3 on 8-11-45, the data of the sale-deed, Ext. A.
12. The sale-deed was executed by Mangara, Dutiya Ganesh and Mukta as mother guardian of Parikhit (piain-tiff-2). The lower appellate court has found that Mangara was joint with his sons and executed the sale-deed as the karta of his branch so as to bind the plaintiffs 4 to 8. Ganesh obviously executed the sale-deed as the Karta of his branch so that plaintiff 3 is bound by the same. Dutiya is himself the executant of the sale-deed and there is practically no challenge from his side. So far as the plaintiff 1 is concerned, his line was represented in the sale-deed by his the then minor son Parikhit (P-2) through his mother-guardian, Mukta (D-3). The whole question is how far the sale by the minor Parikhit will bind his father plaintiff 1. It was contended on behalf of the defendant No. 1 that the father's whereabouts being root known the minor son can act as the managing member of the family and make alienations for legal necessity so as to bind the interest of the father.
13. It is, admitted that plaintiff 1 left his village sometime between 1941-43 and came back after a !apse of about 12 years. It is the case of plaintiff 1 that he used to send money-orders from time to time to his family for purposes of their maintenance and there was no necessity for them to make any alienation of the family property. He, however, admitted that there was not a single acknowledgment receipt in respect of arty such money-orders.
On the other hand, there is evidence on behalf of the defendants that plaintiff 1 left the village with a Kondh lady to some unknown destination and his whereabouts were not known in the village and for all purposes he was taken to be dead. According to plaintiff 1 he left for Hirakud sometime in the year 1942 but as is well-known there was nothing like Hirakud project in the year 1942 and it was started much later. There is, however, no evidence to show where exactly he was during , this period. His story that he left for Hirakud and was regularly sending money for the maintenance of the family was therefore rightly rejected by the lower appellate court. Thus, during the absence of the father under such circumstances his minor son alone was left as the managing member of the family.
14. The appellate court's finding that the sale was for family necessity and for the benefit of the family must be accepted. From the recitals in Ext. 2, it is pretty clear that the family was unable to invest the necessary money for reclamation of the suit-land; on the other hand it was in arrears of rent in respect of the suit-land. That was the reason why they made an application before the authorities concerned for permitting them to sell the suit-land to some non-aboriginals as it was not possible to find out an aboriginal purchaser. That payment of arrears of land-revenue is one of the legalnecessities of the family cannot be doubted.
Further, it appears from the recitals in the sale-deed, Ext. A that they had some previous loans which they also wanted to pay up. It appears from the evidence of defendant 1 that the parties owed a sum of Rs. 303 to one Lakmidhar Tripathy and Dambaru Behera and also a sum of Rs. 68/- to defendant 1. The defendant 1 also enquired about the said loans from Laxmidhar and Dambaru and he himself saw the stamps. Thus, the parties had also some previous loans existing on the date of sale (Ext. A). There is some evidence to show that the family had no other source of income from which the arrears of rent or the loans or even the maintenance of the family could be, met. We have already seen that there is no evidence in support of the plaintiffs' contention that he was regularly sending money-orders to his family for their maintenance.
15. We shall now revert to the most pertinent legal question as to whether the minor can act as the managing member of the family so as to make the alienations made by him binding on his father. The question directly came up for consideration before a Division Bench of this Court in a case reported in 24 Cut LT 100 : (AIR 1958 Orisss 7), Budhi Jena v. Dhobai Naik.
In that case, during the absence of the plaintiff at Rangoon for a number of years his wife executed a sale-deed for herself and as the guardian of her two minor sons, in favour of one of the defendants. After return from Rangoon, the plaintiff brought a suit for a declaration that the said alienation was invalid and inoperative as against his interest. It was found that the sale was for consideration and for legal necessity. One of the questions that arose for consideration in that appeal was whether in the absence of the father the elder minor son could act as the karta of the family. After having discussed a number of authorities on the point, their Lordships held that a minor can be the managing member of a Hindu undivided family.
In fact that decision concludes the matter. But while referring the present appeal to the Division Bench, Barman J. was of the opinion that there were some conflicting decisions of this Court as to whether a female can act as the Karta of a Hindu joint family. Obviously he had the case reported in 22 Cut LT 228 : ((S) AIR 1956 Orissa 1), Maguni Padhano v. Lokana Nidhi Lingaraj Dora, in his mind. But that legal question does not arise in the case as we have already seen that the sale deed was not executed by Mukta as the Karta of her branch of the family but merely as the guardian of her son. I will however presently show that there is in fact no such conflict between the above two decisions.
16. In the case in 22 Cut LT 228 : ((S) AIR 1956 Orissa 1), during the absence of the plaintiff, the only adult son, at Rangoon, his mother who practically acted as the manager of the family, executed a sale-deed with a view to discharge some prior debts incurred for the purpose of celebrating the marriage of the plaintiff's sister. It was found that the sale was for legal necessity and for consideration. But the main question that arose in that case was whether during the absence of the major son, his mother who in law is not a coparcener, could act as the Karta of the family so as to bind the family by the allegation for legal necessity.
There are no doubt conflicting decisions on this point whether a female could act as the Karta of a Hindu joint family. In some of the cases of the Nagpur High Court, viz., AIR 192.6 Nag 81, Kesheo v. Jagannath, AIR 1947 Nag 178, Pandurang Dahake v. Pandurang Gorle, and AIR 1949 Nag 128, Commr. of Income-tax C.P. and Berar v. Laxmi Narayan, the view taken was that a female member of a joint family was entitled to be its manager and consequently alienations made by her were valid and binding in law.
The Madras High Court in the case Seatha Bai v. Harasimha Shet, AIR 1945 Mad 306 and in the case of Radha Animal v. Commissioner, of I. T. Madras, AIR 1950 Mad 538, took a different view and held that a Hindu female though a member of a joint family cannot be its manager or Karta and that only a coparcener could be the Karta of a family. After having noticed the decisions of both these High Courts, their Lordships in the case in 22 Cut LT 228 : ((3) AIR 1956 Orissa 1} preferred to follow the Madras view and held that a mother is incapable of being the Karta of the family so as to bind the family with her alienations for legal necessity. The question of the competency of the minor to act as the Karta or managing member of the Hindu undivided family did not come up for consideration in that case. The following observation in that judgment however is pertinent, for the present case :
'The position of a mother-guardian is quite different and therefore that case Hunoomanpershad Pandey v. Mst. Babooee Mundraj Koonweree, 6 Moo Ind App 393 (PC), is no authority for the broad proposition that a mother as the de facto manager of the joint family could even when her son has become major make an alienation for legal necessity.'
While dealing with the Nagpur decisions, it was also held:
'Doubtless these two decisions, AIR 1926 Nag 81 and AIR 1947 Nag 178 could be distinguished from the pre-cent case inasmuch as those alienations were made by the female manager while acting as the guardian of herminor son. The powers of a mother guardian of her minor son stand on a slightly different footing.'
In 24 Cut LT 100 : (AIR 1958 Orissa 7), no doubt their Lordships were inclined to differ from the view expressed in 22 Cut LT 228 : ((S) AIR 1956 Orissa 1) and observed that there was no inherent incompetency in an adult female member of a Hindu joint family under particular circumstances to be the Karta of the family but expressly stated that they had not given any final opinion on the point as they thought that the appeal could be disposed of on other points, viz., whether a minor could act as, the Karta of the family and that even an ordinary member of the family though not the Karta may dispose of some family property during distress of the family. In view of this position, it cannot be said that there was any conflict of decisions in the aforesaid two cases of this Court, viz., 22 Cut LT 228 : ((S) AIR 1956 Orissa 1) and 24 Cut LT 100 : (AIR 1958 Orissa 7).
17. That a minor could act as the managing member of the family finds support from the decisions of some other High Courts of India. In AIR 1948 Nag 324, Trimbak Raoji v. Lonkaran, their Lordships held that there is nothing in Hindu law which absolutely forbids a minor from occupying the status of a managing member of a Hindu family. That a minor can be a managing member of an undivided Hindu family has been impliedly recognised by Section 21 of the Guardian and Wards Act, 1890, which runs as follows :
'A minor is competent to act as a 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 of any minor member of that family.'
18. Mulla in his Hindu Law, 12th Edition, 681, white dealing with the subject says :
'There is no rule of Hindu Law that the managing member of an undivided Hindu family should be adult'.
Treveilyan in his Law Relating to Minors, 6th Edn. p. 15 has also expressed a similar view that a minor managing member of a Hindu joint family has as much power to bind a coparcener as the adult.
19. Learned counsel for the appellant, however, drew our attention to some other decisions dealing with the subject and contended that those decisions are authorities for the proposition that a minor can never act as the Karta of the Hindu joint family, unless of course it is a trading family. In support of his contention, he relied upon a decision in AIR 1917 Mad 612 (2) : ILR 39 Mad 608, Mohideen Ibrahim Nachi v. Mahomed Ibrahim Sahib where Sadasiv Ayyar J. expressed doubt whether a minor can at all be the managing member of a Hindu family, while dealing with a case under Section 21 of the Guardian and Wards Act. There the question whether the minor could be a managing member of a family did not directly come up for consideration, but it arose only incidentally. This decision was also noticed in 24 Cut LT 100 : (AIR 1958 Orissa 7).
While dealing with that case Mahapatra, J observed that:
'Even an eminent Judge like Sadasiv Ayyar J. well-versed in Hindu texts 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 wife regard to the question.'
The other decision relied upon by the learned counsel for the appellant is a case reported in 16 Mys LJ 32, B. Siddippa v. B. Lingapps. That decision also does not unqualifiedly support that contention of the learned counsel for the appellant. In that case, their Lordships held that:
'Property belonging to joint family is ordinarily managed by the father or other senior member for the time being of the family. The younger member of a joint family is empowered to deal with the property only in extraordinary circumstances such as a season of distress, calamity for the whole family and for the support of the family.'
Thus, the view expressed in the above case does not completely rule out the position of a minor being a managing member of the family under any circumstances. The same view has also been expressed in the Hindu Law of Raghabachariar, 6th Edition, 275. Thus, it may be taken as well settled that there is no legal bar to a minor being a managing member of the family.
20. We have already seen that the sale-deed in the present case was executed by plaintiff 2 while he was the only male member of the family of plaintiff 1 and was managing the affairs of the family through his mother. This was at a time when the whereabouts of his father were not known. It has also been found that the sale was for consideration and legal necessity. The sale is thus binding both on the plaintiff Nos. 1 and 2. It has already been seen that the Kartas of the other branches of the family had executed the sale-deed for good consideration and for legal necessity.
In the circumstances, the plaintiffs' suit must fail. There is thus no merit in the appeal which is accordinglydismissed, with costs.
21. I agree.