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Krishnarajan Vs. Doraswamy Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 400 of 1962
Judge
Reported inAIR1966Ker305
ActsHindu Law; Evidence Act, 1872 - Sections 35
AppellantKrishnarajan
RespondentDoraswamy Chettiar and ors.
Appellant Advocate A.S. Krishna Iyer and; A.K. Ramaseshadrinathan, Advs.
Respondent Advocate P.K. Subramania Iyer and; C.S. Ananthakrishna Iyer, Advs.
DispositionAppeal dismissed
Cases ReferredKunhiraman v. Krishna Iyer
Excerpt:
family - partition - hindu law and section 35 of evidence act, 1872 - appeal against preliminary decree regarding suit for partition - property assigned by first defendant in favour of second defendant is for legal necessity and benefit of estate - consideration for said transaction reasonable and adequate - no substance in appeal - no infirmity in order passed by court below - appeal liable to be dismissed. - - in this appeal the plaintiff claims half share in the a schedule, items as well. in such cases when the alienation is impeached by the sons the burden of proof is on the alienee to show that there was in fact legal necessity or benefit to the family or the alienation was for discharging antecedent debts justifying the alienation or that the alienee honestly satisfied himself.....krishnamoorthy iyer, j.1. the plaintiff who is the appellant has preferred this appeal against the preliminary decree in a suit for partition. the 3rd defendant is the mother of the first defendant while the plaintiff is the first defendant's son. the plaintiff and defendants 1 and 3 are governed by hindu mitakshara law. the plaintiff claimed one-half share in the plaint a and b schedule items on the ground that they are his joint family properties. the trial court dismissed the suit regarding a schedule properties and passed a preliminary decree allowing the plaintiff one-half share in plaint b schedule items. in this appeal the plaintiff claims half share in the a schedule, items as well.2. the first defendant got the plaint b schedule items and a mortgage right of the value of rs......
Judgment:

Krishnamoorthy Iyer, J.

1. The plaintiff who is the appellant has preferred this appeal against the preliminary decree in a suit for partition. The 3rd defendant is the mother of the first defendant while the plaintiff is the first defendant's son. The plaintiff and defendants 1 and 3 are governed by Hindu Mitakshara Law. The plaintiff claimed one-half share in the plaint A and B schedule items on the ground that they are his joint family properties. The trial Court dismissed the suit regarding A schedule properties and passed a preliminary decree allowing the plaintiff one-half share in plaint B schedule items. In this appeal the plaintiff claims half share in the A schedule, items as well.

2. The first defendant got the plaint B Schedule items and a mortgage right of the value of Rs. 2,000 over the plaint A schedule items as per the partition deed Ext. A dated 6-1-1097 entered into between him and his brother's son. The properties thus obtained by the first defendant under Ext. A are the joint family properties of the first defendant and the plaintiff. The first defendant filed O. S. 64 of 1104 for enforcing the mortgage right and obtained a decree and in execution of the decree he purchased the plaint A schedule properties in Court auction on 20-7-1112, evidenced by the sale certificate Ext. B-6. In view of the Court purchase the plaintiff claimed A schedule properties as joint family properties available for partition. The plaint A schedule properties were assigned by the first defendant and others under Ext. B-10 dated 23-11-1113 in favour of the second defendant for Rs. 30,000. In the suit the plaintiff impeached Ext. B-10 on the ground that it is not supported by legal necessity or benefit of the estate and the learned Judge upheld Ext. B-10 and refused the claim of the plaintiff for a share in A schedule items.

3. The only question that falls to be decided in the appeal is whether Ext. B-10 is binding on the plaintiff. To consider this point, it is necessary to state some more facts. The plaint A schedule properties originally be-longed to one Pookottu tarwad. The tarwad executed a mortgage with possession dated 7-5-1087 for Rs. 10,000 and a purahadom dated 14-8-1088 for Rs. 5,000 in respect of the plaint A schedule properties in favour of Vydianatha Pattar and others. The mortgagor tarwad took back the properties on lease agreeing to pay an annual rent of Rs. 1012.50 besides the revenue of Rs. 325 per year. Subsequent to these two mortgages the tarwad executed a simple mortgage on 1-8-1092 in respect of these items for Rs. 2,000 in favour of one Appukutti Chetly who assigned his mortgage right in favour of Kandappan alias Kulatnamman Chetty the brother of the first defendant on 13-10-1092. Ext. A-1 is the partition between the first defendant and the son of Kandappan after the death of Kandappan and in Ext. A-1 this mortgage right was allotted to the share of the first defendant along with the B schedule items. Subsequent to the mortgage in favour of Appukutti Chetty the tarwad executed subsequent mortgages. The last of the mortgages was in favour of one Harihara Iyer and another for Rs. 4000 evidenced by Ext. B-27 dated 4-1-1138. The first defendant filed O. S. 64 of 1104 on the file of the District Court, Trichur on the mortgage dated 1-8-1092 and obtained a decree for sale. Ext. B-5 is the judgment. Vydianatha Pattar or the subsequent mortgagees under Ext. B-27 were not impleaded in the suit. In execution of the decree, the first defendant purchased the plaint A schedule items on 20-7-1112 for Rs. 8000 subject to the rights in favour of Vydianatha Pattar evidenced by Ext. D-6 the sale certificate. The first defendant got delivery of possession of the A schedule properties. The Court sale under Ext. B-6 was subject to the rights of Vydianatha Pattar to the amounts due lo him under the two prior mortgages of 1087 and 1088 and also to the rent due to him under the lease-back from year 1095 at the rate of Rs. 1012 per annum with interest at 12 per cent per annum. The result of the purchase under Ext. B-6 was that the joint family of the plaintiff became the owner of equity of redemption of A schedule items which they purchased in Court auction for Rs. 8000 without impleading the subsequent mortgagee. That was the title of the plaintiff's family to A schedule items.

In the meanwhile Vydianatha Pattar and others filed O. S. 86 of 1109 on the file of the Trichur District Court for recovery of the amounts due to them under the two earlier mortgages of 1087 and 1088 as also the arrears of rent. Ext. B-7 is the copy of the plaint and Ext, B-8 is the copy of the decree. The first defendant and the subsequent mortgagees under Ext. B-27 were not impleaded. In execution of Ext. B-8 Vydianatha Pattar purchased the A schedule properties in Court auction on 21-7-1112 a day after the Court sale in O. S. 64 of 1104 for Rs. 39500. Ext. B-9 is the sale certificate in favour of Vydianatha Pattar. Ext. B-10 was executed on 23-11-1113 by the first defendant, Vydianatha Pattar and others in favour of the second defendant, for Rs. 30000. The first defendant received Rs. 5000 and Vydianatha Pattar received Rs. 25000. Harihara Iyer the mortgagee under Ext. B-27 parted with his rights in favour of the second defendant for Rs. 100 under Ext. B-28 dated 24-11-1113 the next day after the execution of Ext, B-10. Ext. B-10 was an assignment of the rights of Vydianatha Pattar and others under the prior mortgages, lease deed and the Court purchases and also the rights of the plaintiff's family under the mortgage and Court purchase to the second defendant. The Court auction in execution of the decree in O. S. 64 of 1104 suffered from the infirmity in that the subsequent mortgagee under Ext. B-27 was not impleaded. It was open to the mortgagee under Ext. B-27 to have filed the suit on his mortgage against the first defendant and bring the equity of redemption of A schedule items to sale subject to the rights of the prior mortgagees. But in view of the Court auction purchase by the plaintiff's family the mortgagee under Ext. B-27 cannot assert his subordinate rights to sell the identical properties which have been sold away by the prior mortgagee, the first defendant. The first defendant had, therefore, the right to redeem the mortgagee under Ext. B-27. Otherwise the mortgagee under Ext. B-27 had the right to file a suit on his mortgage impleading the first defendant and bring the A schedule items to sale. The amounts due to Vydianatha Pattar and Harihara Iyer on the date of Ext. B-10 could be estimated easily at about Rs. 44000. A schedule properties fetched only Rs. 30000 by the sale under Ext. B-10. The contention raised on behalf of the appellant was that A schedule properties were sold for a low price under Ext. B-10 and the sale is not for any family necessity or for benefit of the estate and the second defendant is not a purchaser who made bona fide enquiries regarding the existence of any necessity for the sale of the property. In view of these circumstances, it was pointed out that Ext. B-10 is not binding on the plaintiff.

4. The first defendant who executed Ext. B-10 is the father of the plaintiff. In Hindu Law a father in his capacity as manager can validly sell or mortgage the family property including the son's interest either for family necessity or for the benefit of the estate or for the discharge of his own antecedent debts which are not tainted with illegality or immorality. In such cases when the alienation is impeached by the sons the burden of proof is on the alienee to show that there was in fact legal necessity or benefit to the family or the alienation was for discharging antecedent debts justifying the alienation or that the alienee honestly satisfied himself after proper and bona fide enquiries as to their existence.

5. It was contended on behalf of the appellant that on the date when Ext. B-10 was executed Vydianatha Pattar was in embarrassed circumstances and would not have enforced his rights against the plaintiff's family and the first defendant could have continued in possession of the A schedule items for 4 or 5 years and with that income discharged the prior charges in favour of Vydianatha Pattar and also the subsequent mortgages under Ext. B-27. It was further submitted by him that there was no necessity at all to sell the entire A schedule items, the charges over these properties could have been discharged by executing a mortgage or sale in respect of portions of the property and the price fetched by Ext. B-10 was itself inadequate. These contentions advanced on behalf of the appellant are unsustainable. Though in execution of O. S. 64 of 1104 the first defendant got possession of the A schedule items that possession was only the lessee's possession under Vydianatha Pattar. The first defendant was bound to surrender possession of the properties to Vydianatha Pattar. On this aspect the learned advocate for the appellant submitted that the rights under the lease deed in favour of Vydianatba Patlar were extinguished in view of the decree in O. S. 64 of 1104. We are ntit prepared to accept this contention. Since in execution of the decree in O. S. 86 of 1109 there was no effective Court purchase binding on the joint family of the first defendant, it is not possible to hold that such Court auction terminated the rights of Vydianatha Pattar under the two mortgages and the lease-back, He could have enforced these rights against the first defendant. Therefore, the possession of the properties taken in execution of the decree by the first defendant was always liable to be disturbed by proceedings started at the instance of Vydianatha Patlar.

The contention advanced on behalf of the appellant that on the date of the execution of Ext. B-10 there was no prospect of Vydianatha Pattar starting proceedings on the basis of his prior mortgages and lease-back cannot also stand scrutiny. Vydianatha Pattar had sub-mortgaged his mortgage rights by executing three sub-mortgages. Two of them are Exts. B-11 and B-12. Ext. B-11 is in favour of M. N. Ramaswamy Iyer who was the manager of the joint family of Dw. 2. The sub-mortgagee under Ext. B-12 was the paternal uncle of Dw. 2. The third sub-mortgage was in favour of P. R. Subramania Iyer a banker at Alathur. It was not disputed at the bar that the sub-mortgagees at the time of Ext. B-10 could have enforced their claims under the sub-mortgages or could have enforced the claims under the prior mortgages and lease-back in favour of Vydianatha Patlar. Dw. 2 stated that at the time of the institution of the suit O. S. 86 of 1109 the sub-mortgagees of Vydianatha Paltar had assured them that their debts would be discharged after the amounts were received under his decree. Dw. 2 deposed that his paternal uncle and his brother would have helped Vydianatha Patlar if necessary to file a suit against the first defendant. The evidence of Dw. 2 was accepted by the trial Judge. He & a banker and he was a practising advocate for some time. We arc also inclined to act on the evidence of Dw. 2. In view of the above evidence given by Dw. 2 even if it is assumed that the financial position of Vydianatha Patter was such that he would not have been in a position to enforce the remedies as a prior usufructuary mortgagee against the first defendant his sub-mortgagees would have taken steps to enforce those rights. Even otherwise nothing would stand in the way of Vydianatha Pattar to file suits against the first defendant in forma pauperis. Therefore, the argument of the teamed advocate for the plaintiff that the first defendant could have discharged the encumbrances from out of the income of the A schedule properties is without any basis.

6. The position on the date of Ext. B-10 therefore, was that there were prior encum-farances on the property in favour of Vydianatha Paltar to the exlent of about Rs. 38,000 and the liability to pay rent from 1095 to Vydianatha Pattar and a subsequent encumbrance in favour of the mortgagee under Ext. B-27 to the exlent of Rs, 6,000 which the joint family of the plaintiff was bound to pay as the Court auction purchase in favour of the first defendant was not binding upon the subsequent mortgagee in Ext. B-27. The plaintiff as Pw. 1 admitted that the prior encumbrances on the A schedule items could have been dis-charged only by encumbering these items or by selling some of them and there was no other means of discharging these encumbrances. In view of this categorical statement of Pw. 1 it follows that the only course for discharging these encumbrances was A schedule items and there were no other means. This is also clear from another circumstance. Within one month of the first defendant's getting possession of the A schedule items in execution of the decree in O. S. 86 of 1109 one of the items included is the A schedule was sold in revenue auction. The financial position of the family was such that the first defendant was not in a position to deposit the arrears of revenue and get the sate set aside. The necessary amount was reserved under Ext. B-10 with the second defendant to get the revenue sale set aside as this item was also included in Ext. B-10.

7. The evidence let in by the plaintiff to prove that the consideration for Ext. B-10 was inadequate was not accepted by the trial Court. The case of the plaintiff was that on the date of Ext. B-10 the value of the A schedule items was Rs. 50,000. Adequacy of consideration is a relevant factor to be taken into consideration in judging whether the transaction was prudent. The plaintiff had a case in the trial Court that Ext. B-10 was the result of collusion between defendants 1 and 2. This case was not accepted by the trial Judge and it was not pursued before us. The evidence adduced by the plaintiff to prove the consideration for Ext. B-10 was inadequate consists of Exts. A-5 to A-18 and Pws. 4 to 8. On an analysis of this evidence the trial Court was of the view that the plaintiff's case that paddy lands were selling at the rate of Rs. 100 per 10 parah rent yield could not be accepted. Exts. A-5 ,A-9, A-12 and A-13 are the assignment deeds produced by the plaintiff to prove the market price of properties at about the time of Ext. B-10. Though in these documents both paddy lands and garden lands are included the plaintiff's contention was that the consideration shown in the documents was only for the paddy land portion of the property and if calculated on that basis the price fetched under Ext. B-10 might not be quite adequate. But the learned trial Judge found that the consideration shows in the assignment deeds was not only for the paddy hinds but also for the garden land portion consisting of buildings and also yielding trees. We agree with the reason adopted by the trial Judge.

8. According to the plaintiff, the income from the A schedule properties at about the time of Ext. B-10 was 5000 parahs of paddy, 5000 sheaves of straw and income from fruit-bearing trees and 130 kudiyiruppas. No evidence was adduced to show the income which the first defendant was getting from these kudiyiruppas. The plaintiff had no direct or personal knowledge about the yield from these items. These properties were outstanding on pattom with strangers. Exts. B-1G and B-17 are the lease deeds taken by the first defendant himself. The rent due under these patta chits was only 4472 parahs. Ext. B-7 shows that the revenue to be paid in respect of these items was Rs. 325. The net yield was only 3822 parahs of paddy. Dw. 1 the second defendant deposed that paddy was selling at 8 annas per parah on the date of Ext. B-10. Taking all these circumstances into consideration we agree with the view of the trial Court that the consideration for Ext. B-10 was quite adequate. Though the trial Court bad gone into a meticulous examination of the various deeds of assignments produced by the plaintiff to decide the actual market value of the A schedule items on the date of Ext. B-10 it was not necessary. No doubt adequacy of the price for the sale deed is a factor to be taken into consideration, in deciding the binding character of the sale deed on the junior members of the coparcenary. In this connection it is nceessary to mention the observations of the Judicial Committee in Ram Charan Lonia v. Bhagwan Das Maheshri, AIR 1926 PC 68 at p. 69:

'In these circumstances a transaction even involving the disposal by Gopal Das of this entire immovable family property might well be justifiable and be binding on the whole family, provided the property was not sacrificed for an inadequate price and provided the consideration was calculated to relieve the necessity, the existence of which called for the disposition.'

If in the execution of Ext. B-10 the first defendant acted honestly even though the consideration for Ext. B-10 may not compare favourably with the prices fetched under Exts. A-5, A-9, A-12 and A-13. if the price was not unreasonably low, Ext. B-10 cannot be condemned on the ground that the consideration was inadequate. The title of the joint family of the plaintiff Lo the equity of redemption of A schedule properties was not absolute hut only qualified. There was the claim of the subsequent mortgagee and the auction sale was not binding on him. No evidence was adduced to prove that there were other purchasers available at the relevant dale offering a higher value. On the other hand, Dw. 2, whose evidence we have accepted deposed thus:

'There was absolutely no fraud or collusion in the matter of that transacfion. As a matter of fact it was to the benefit of the first defendant's family. I consider that the price fixed in Ext. B-10 was a very fair price under all the circumstances then prevailing. It was a period of depression. No one else was then prepared to offer any higher price.'

It has come out from the evidence of Dw. 2 that during the period from 1935 to 1943 he had arranged sales of lands yielding about 40000 parahs of paddy rent on behalf of the customers in his bank. His brother the sub-mortgagee under Ext. B-11 is an attestor to Ext. B-10. Dw. 2 also deposed that the transaction Ext. B-10 was itself brought about on account of the negotiation of himself and his brother to arrive at a settlement to the satisfaction of all the encumbrancers. The following statement in his evidence is relevant:

'My family and my uncle were pressing our mortgagor for our amounts. Our mortgagor was telling us that they had already obtained decree against their mortgagor and that if the properties were sold in Court-auction and purchased by third parties, he would be getting his money out of which he could pay us our amounts. He said that if he himself had fo purchase the property in court-auction, he would have to find out purchaser and sell them the property to make payments to us. Ultimately our mortgagors themselves had to purchase the property as there were no stranger purchasers. After the confirmation of the sale, they came fo us and told me that the first defendant as puisne mortgagee had obtained decree and executed it and had already taken delivery of the property. I knew the first defendant. The first defendant had not been made a party to Vydianatha Pattar's suit. So the only alternative was either to file a fresh suit or to take an assignment of the first defendant's rights, So far as I know, the first defendant was not in a position to pay and redeem the prior mortgage. Myself and my brother suggested to our mortgagors that they might approach the first defendant and see whether he would co-operate so that a fresh suit could be avoided. The suggestion was accepted. Thereon we sent for the first defendant and he came to us. He was amenable to a settlement of all matters, made him understand that the prior mortgagees were not in a position to pay him and that the properties would have to be sold to third parties for him and the prior mortgagees to take their legitimale shares. We said that we would try to find out a purchaser for these items for about Rs. 30000. The amount payable to the first defendant for his interests was agreed to be fixed at Rs. 5000. All the parties accepted our suggestion. My brother and myself found out Dw. 1 as a possible purchaser.'

9. In these circumstances, we hold that the price paid by they second defendant for Ext. B-10 was reasonable and adequate. There is absolutely nothing in the evidence to show that the first defendant at the time of execution of Ext. B-10 was acting against the interest of the plaintiff. Ext. B-31 is an assignment deed executed jointly by the plaintiff and the first defendant in favour of a stranger on 23-4-1954 in respect of an admitted joint family property. This would indicate that till 2 years prior to the institution of the present suit the feelings between the plaintiff and the first defendant were quite cordial. The complaint raised that Ext. B-10 is not supported by legal necessity or benefit of the estate is also without force. On the relevant date of the execution of Ext. B-10 it cannot he disputed that it was necessary to discharge the prior encumbrances and the debt under Ext. D-27. The prior mortgagee had already obtained a decree and purchased the properties in court-auction. But that auction purchase proved to be ineffective owing to the failure to implead subsequent encumbrancers like the first defendant and Harihara Iyer. The prior mortgagee was really contemplating steps. There were sub-mortgagees of Vydianatha Pattar anxious to get their amounts. In view of these circumstances, there was also pressure on the estate. The prior mortgagee had therefore, to be redeemed and the sub-mortgagee had to be paid off. It was not possible to sell a portion of the properly as it was fully encumbered. If the first defendant had suffered the institution of a suit either by the prior mortgagees or by the subsequent mortgagee Harihara Iyer it was rather problematical for the first defendant or the joint family of the plaintiff to get any amount after satisfying Vydianatha Pattar in respect of the prior mortgage and lease-back. So the sale of the property on the basis of the arrangement contained in Ext. B-10 was a prudent transaction that one could think of under the circumstances then prevailing.

Whether a sale deed executed by a father to pay off debts charged upon the properties is binding on his sons must depend upon the facts and circumstances of each case. But in determining whether a sale or mortgage is justifiable a reasonable discretion has to be allowed to the father or the joint family manager for the exercise of his judgment. If the father or the manager like a reasonable and prudent man has effected a sale instead of a mortgage for a family necessity a Court will be loath to interfere with such discretion and will not be inclined to hold that he should have executed a mortgage and not a sale. Though in the opinion of the Court a mortgage would have been more prudent, to do so would be to substitute the discretion of the Court to that of the father or the manager.

10. Sir John Wallis in Niamat Kai v. Din Payal, AIR 1927 PC 121 at p. 123 observed:.

Where there is a joint family business, the manager, as already pointed out, has authority to raise money not only for the payment of debt, but also for the purpose of carrying on the business. The learned Judges of the High Court were of opinion that, as in this case the business had recently resulted in loss, the managing member, was not justified in patting more money into it, and that in any case he should have raised money by mortgage instead of by sale. As regards the latter question, it is not clear that borrowing, probably at a high rate of interest, would have been more beneficial than sale. In any case this was a Question for the manager to decide. It was equally a question for the manager whether it would be better to raise more money or to etose down the business and it would, in their lordships' opinion, be unreasonable to require a lender or purchaser to go into questions of this kind, as to which he would rarely be in a position to form a sound opinion. In the present case the decision to raise more money would seem to have been a wise one as the business afterwards earned profits with which more lands were purchased.'

The same principle was stated by their Lordships of the Supreme Court in Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83 in the case of widow holding a widow's estate. In Hunoomanpersaud Panday v. Mt. Babooee Mundraj Koonweree, (1854-57) 6 Moo Ind App 383 (PC) it was laid down that the powers of Hindu widow holding a widow's estate are those of the manager of an infant's estate or the manager of a joint Hindu family and in Venkaji Shridhar v. Vishnu Babaji, (1894) ILR 18 Bom 534 at p. 536, it was held

'that a widow, like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided .....she acts fairly to her expectant heirs' '.

Krishnaswami Ayyangar, J., with reference to the right of a Hindu widow in possession of her husband's estate observed in Viraraju T, Venkataratnam, AIR 1939 Mad 98 at p. 100 thus:

'How exactly this obligation is to be carried out whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound. In the absence of mala fides or extravagance and so long as it is neither unfair in character nor unreasonable in extent, the Court will not scan too nicely the manner or the quantum of the alienation.'

In AIR 1962 SC 83 already referred to, the Supreme Court had to consider the extent of the right of a widow under Hindu Law holding a widow's estate to sell properties which are the subject-matter of a usufructuary mortgage. The High Court held that a sale by a widow of properties which are the subject matter of a usufructuary mortgage is beyond her powers when the mortgagee cannot sue to recover the amount of the mortgage.' Their Lordships of the Supreme Court observed:

'When a widow succeeds as heir to her husband, the ownership in the propenties, both legal and beneficial, vests in her. She fully represents the estate, the interest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law. It is for this reason that it has been held that when Crown takes the property by escheat it takes it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law, vide, Collector of Massulipatam v. Cavaly Venkata Narainapah, (1859-61) 8 Moo. Ind. App. 529 (PC). Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Her powers in this regard are, as held in a series of decisions beginning with (1854-57) 6 Moo Ind. App. 393 (PC), those of the manager of an infant's estate or the manager of a joint Hindu family. In (1894) ILR 18 Bom 534 at p. 536 it was observed that- 'A widow like a manager of the family, must be allowed a reasonable latitude in the exercise of her powers, provided .....' she acts fairlyto her expectant heirs'.'

And more recently, discussing this question, it was observed in Viraraju v. Venkata-ratnam, ILR 1939 Mad 22G at p. 231: (AIR 1939 Mad 98 at p. 100):

'How exactly this obligation is to be carried out, whether by a mortgage, sale or other means, is not to be determined by strict rules or legal formulae, but must be left to the reasonable discretion of the party bound. In the absence of mala fides or extravagance, and so long it is neither unfair in character nor unreasonable in extent, the Court will not scan to nicely the manner or the quantum of the alienation'.'

The above principles stated by the Supreme Court though with reference to a Hindu widow holding a widow's estate must apply to a Hindu father or a manager of a joint Hindu family alienating family properties. Judged by the principles stated above, it has to be held that Ext, B-10 is supported by legal necessity and entered into by a prudent owner managing his properties. It was contended by the learned advocate for the appellant relying on the decision in Murli v. Ghammar, AIR 1930 All 22 (2) which is followed in Ram Parkash v. Radhe Shyam, AIR 1963 Punj 338, that in a suit by the son to challenge the sale of the joint family property effected by his father on the ground of want of legal necessity, that the burden is upon the alienee to prove that there was no either alternative to pay off the mortgage, excepting by the sale of the property and the question to be decided in such cases would fie, was there any necessity for the sale of the property itself. In our view, it is unnecessary in this appeal to consider the correctness of the dictum laid in those cases as they are not applicable to the facts of this case. Even in the case under appeal if such a burden is on the alienee, we are of the view that the burden has been discharged. In the mature of the encumbrances on A schedule properties on the date of Ext. B-10 and in the nature of the quantum of 'those encumbrances if was not possible to think of any other mode of discharging those encumbrances than by the sale of the properly. The consideration received for Ext. B-10 was already found to be reasonable and fair. The principle laid down in AIR 1930 All 22 (2) cannot also apply to the facts of the case before us.

In AIR 1930 All 22 (2) the property was sold by the joint family manager for Rs. 1,400. If was found that out of the sale consideration of Rs. 1,400 there was legal necessity only to the extent of Rs. 967. The question that arose was whether for the purpose of discharging Rs. 967 there was no other way in which the sum of Rs. 967 could have been raised by the joint family except by the sale of the house in such a suit. The decision therefore has no application to the case on hand. Where the money required to meet the necessary purposes is less than the amount sought to be raised by the sale or mortgage, the true question is whether the sale itself is one 'which would be justified by legal necessity. In such cases the true principle to be followed has been laid down by the Privy Council in Sri Krishan Das v Nattiu Ram, AIR 1927 PC 37 and Gauri Shankar v. Jiwan Singh, AIR 1927 PC 246. Since Ext, B-10 is supported by legal necessity to the full extent it is not necessary to decide whether the execution of the sale deed to discharge the debts was itself necessary. Ext. B-10 is supported by legal necessity to the entire extent of Rs. 30,000. In this view, the appeal is without any substance. Respondents 2 and 4 to 8 have filed a memorandum of cross-objections regarding certain findings entered against them by the trial Court, The only question covered by the memorandum of objections and raised before us was that the suit is barred by limitation as regards A schedule properties as the suit was filed more than three years after the plaintiff attained majority. According to these respondents, the plaintiff was born on 28-10-1109 (11-6-1934), but the learned Judge found the plaintiff's date of birth to be 1-1-1110. The learned Judge in coming to this finding relied on Ext. A-2 the extract of the birth and death register in preference to Exts. B-1, B-2, B-3 and the evidence furnished by P. W. 1. It was held in Kunhiraman v. Krishna Iyer, 1962 Ker LJ 289 that 'birth registers are maintained by public servants in the discharge of their official duty, a duty specially enjoined by law and in the generality of cases the entries therein furnish the best evidence of the dale of the birth and can safely be accepted unless they are shown to be wrong.' With reference to the entries in the registers of public schools, it was observed 'that though relevant under Section 35 of the Evidence Act, they are of far less evidentiary value and of little avail to show the correct age'. We therefore hold that the finding that the suit is not barred by limitation is correct and has to be upheld. The memorandum of objections is therefore dismissed.

11. In the result, the appeal fails andin confirmation of the decree and judgment ofthe Court below, we dismiss the 'appeal withcosts to the contesting respondents. Costs oneset only.


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