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Manohar Lal and anr. Vs. Dewan Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1263 of 1975
Judge
Reported inAIR1985P& H313
ActsSpecific Relief Act - Sections 15; Hindu law
AppellantManohar Lal and anr.
RespondentDewan Chand and ors.
Cases ReferredBalmukand v. Kamla Wati
Excerpt:
.....and further pleaded that the sale having been made for the benefit of the family and being an act of good management was binding on the plaintiffs. the trial court after recording evidence of the parties negatived the plea that the property was coparcenary property and further holding that the sale had been made for consideration and legal necessity and as an act of good management dismissed the suit......which is a book of unquestioned authority since more than half a century, where a member of joint hindu family property or any part thereof without the consent of the coparcener, the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcener. it has been further laid down in this paragraph that even in the punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. similar is the statement of law contained in para 260. the above statement of law was duly recognised and enforced by the privy council in lachhman prasad v. sarnam singh, air 1917 pc 41; anant ram v. collector of etah, air 1917 pc 188 and manna lal.....
Judgment:

S.P. Goyal, J.

1. Dewan Chand father of the appellants sold land measuring 112 kanals, 101/2 marlas for Rs. 8000/- vide sale deed D./- 19-9-1963. The appellants filed this suit for joint possession of the said land alleging that they constituted a joint Hindu family with their father; that the land sold was coparcenary property and that the sale has been made without consideration and legal necessity. The suit was contested by the vendees who controverted all the material allegations and further pleaded that the sale having been made for the benefit of the family and being an act of good management was binding on the plaintiffs. The trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further holding that the sale had been made for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the plaintiffs.

2. The appeal came up for hearing before me sitting singly and finding as to the ancestral nature of the land in dispute was modified holding that 2/3 rd of the land in dispute was coparcenary property. Thereafter the question arose as to whether the sale was liable to be set aside in toto qua the ancestral property or was valid and binding to the extent of the share of the vendor. The learned counsel for the respondents relying on Jawala Singh v. Lachhman Das, AIR 1974 Punj & Har 188, urged that the sale was binding to the share of the vendors. Doubting the correctness of the decision in Jawals Singh's case (supra) I referred the following question to a larger bench:--

'Whether the sale of coparcenary property, it found to be neither for legal necessity nor for the benefit of the estate would be binding to the extent of the share of the vendor ?

3. When the matter came up before the division Bench, it was brought to their notice that the decision in Jawala Singh's case (supra) had been later on confirmed by a Letters Patent Bench in L. P. A. No. 692 of 1973 (Lachhman Dass v. Ude Chand) decided on 31-1-1977. The Division Bench consequently referred the above question to the Full Bench.

4. It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshara School of Hindu law. According to Para 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family property or any part thereof without the consent of the coparcener, the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcener. It has been further laid down in this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in para 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad v. Sarnam Singh, AIR 1917 PC 41; Anant Ram v. Collector of Etah, AIR 1917 PC 188 and Manna Lal v. Karu Singh, Air 1919 PC 108 (2). The Full Bench of the Allahabad High Court in Chandradeo Singh v. Mata Prasad, (1909) 1 Ind Cas 479 (FB) and Mathura Misra v. Rajkumar Misra AIR 1921 Pat 447 (FB) laid down the law to the same effect. In the United Punjab also as expressed in Badam v. Madho Ram, AIR 1922 Lah 241; Charanji Lal v. Kartar Singh AIR 1925 Lah 130: Daya Ram v. Harcharan Dass, AIR 1928 Lah 111; Raj Kishore v. Madan Gopal Air 1932 Lah 636 and Ralla Ram v. Atma Ram AIR 1933 Lah 343, the established view has been the same. A departure was made for the first time in Jawals Singh's case (Air 1974 Punj & Har 188) (supra) relying on the following observations of the Supreme Court in Balmukand v. Kamla Wati AIR 1964 SC 1385:

'No doubt Pindi Dass himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of S. 15 Specific Relief Act, which runs thus '.

On the basis of the same observations, the decision in Jawala Singh's case (supra) was confirmed by the Letters Patent Bench in L. P. A. No. 692 of 1973. In Balmukund's case (supra) no question that where Mitakshara law prevailed, alienation of joint Hindu family property made by the Manager or any coparcener without any legal necessity and consent by the other coparceners did not bind the share of the alienor, was raised before the Supreme Court and as such the observations referred to above which were made in the context of S. 15, Specific Relief Act, would be operative in that limited sphere. By no stretch, of reasoning while making the said observations, the Supreme Court can be said to have laid down the law that in the States where Mitakshara law applies, alienation would be binding qua the share of the vendor even though it was made without the consent of other coparceners and legal necessity nor for the benefit of the estate.,

5. Though this question was not directly involved but the Full Bench of this Court in the Commr. of Gift-tax v. Tej Nath, (1972) 74 Pun LR 1: (1972 Tax LR 858) (FB) while determining the nature of the alienation by way of gift and the power of the manager in this regard observed that the rule in both cases (i.e., gift and other alienation) is firmly established that alienation of Hindu undivided family property not permitted by the context of Hindu law does not even bind the share of the Karta though in the application of this rule, estoppel prevents the karta from avoiding the alienation. It is, therefore, apparent that except the discordant note struck in Jawala Singh's case (AIR 1974 Punj & Har 188) (supra) the proposition of law that under Mitakshara School of Law, the alienation if otherwise void, does not even bind the share of the alienor has been invariably accepted and holds the field in this Court since more than five decades. Accordingly the question referred to us is answered in the negative and the decision in L. P. A. No. 692 of 1973 (supra) overruled. The case would now go back to the single Bench for disposal on merits.

6. Order accordingly.


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