1. Ramasami Asari and the 8th defendant were brothers and members of an undivided Hindu family. Ramasami mortgaged the suit properties (which must now be taken 011 the findings of the Courts below to have belonged to the joint family) to the plaintiff Nidhi. It is found by the Munsif, and that finding was apparently not disputed in appeal, that the mortgage was not for a family purpose. The facts set out in paragraph 14 of the Munsif's judgment make it abundantly clear that there was no justifiable family necessity for the alienation. The Munsif, however, found that the transaction was ratified by the 8th defendant and this conclusion has been accepted by the District Judge. It is argued on appeal that there could be no ratification of a transaction which was never entered into on behalf of the 8th defendant. This argument must be accepted as sound if Ramasami's alienation is rested on the footing of a contractual agency The manager of a joint Hindu family exercising the powers of a manager is not the agent of the family in the strict sense of the term. See Annamalai Chetty v. Murugesa Chetty I.L.R. (1903) M 544. No ratification is possible where the agent doesnot purport to act, though without authority, on behalf of a principal. See Keighley Maxted & Co. v. Durant 1901 A.C. 240. But the manager of a Hindu family has power to act for the family subject to certain restrictions. Alienations for a family purpose are within his competency. One mode of proving the family purpose, or justifiable family necessity as it has been called, is the assent of adult members of the family competent to contract. The family purpose may also be proved by showing the circumstances which have necessitated the alienation when those circumstances are within the purview of the rules of the Hindu Law on the subject. In this case the absence of the family necessity is distinctly found. In the face of such a finding the assent of co-parceners as evidence of such necessity cannot avail. But as the property vests in the undivided family, the manager with the assent of the other members may give a good title to the alienee even though the alienation is not for any family necessity.
2. It is not necessary that the assenting members should join in the transfer. The manager having the power to act by himself the assent of the other members cures his incapacity to act singly in certain matters or clothes him with the necessary capacity for the complete representation of the interests of the family. The assent in this case is not that of principals to the acts of an agent, but as Mr. Maynk says, it is the supplying by the consent of the co-parceners the want of capacity on the part of the manager to alienate family property. ' Such consent', he adds, 'may either be express or implied from their conduct at or after the time of the transaction'--Section 345. It has been held by the Privy Council in the case of transactions by a Hindu widow that they are only voidable, not void, and that the reversioner succeeding to the estate may by his conduct ratify the transactions and give them full validity--Modhu Sudan Singh v. Rooke I.L.R. (1897) C. 1 and Bijoy Gopal Mukerji v. Krishna Mahishi Dehi I.L.R. (1900) C.329. Is the act of the manager similarly voidable and not void where it is in excess of his powers limited to justifiable necessity? It has invariably been accepted as a sound canon of the Hindu Law that where the alienation is not justifiable necessity, it is void as regards the shares of the other members of the family and where such necessity exists it is valid in its entirety. See Unni v. Kunchamma I.L.R. (1890) M. 20. Sheo Shankar Gir v. Ram Shemak Chowdhri I.L.R. (1869) C. 77 and Balwantrao v. Ramakrishna (1902) 3 B. L.R. 682. It has never been suggested that the alienation by the manager is only voidable where it is not for justifiable necessity. Taking it that there are two classes of alienations by the manager, some valid and others invalid, what is the true position of an alienation by the manager which is subsequently assented to by the remaining members of the joint family An assent at the time of the alienation without taking part in it is, we have already said, sufficient to pass the property. An assent by some alone, though evidence of the propriety of an alienation, will not, in the face of positive proof of its impropriety, suffice to pass their interests, for such assent does not amount to a transfer. But where all the remaining members assent to the alienation subsequent to it, does it validate the alienation apart from any question of estoppel The decision in Musiligadu v. Nannigadu : (1905)15MLJ492 which was referred to, appears to rest upon estoppe of which there is no suggestion in this case. At page 493, the learned Judges who decided that case observe : 'If, as a matter of fact, the defendants after their father's death assented to the possession of the land being taken by the donee on their nonpayment of the rent and also assented to the plaintiff's joining after their mother's death in redeeming the land, they cannot now be permitted to contend that their father had no right to assign the land in the first instance.' The question remains whether the subsequent assent of the remaining members of the family can validate the prior alienation by the manager. It has been held by the Privy Council that the subsequent assent of the presumptive reversioners can validate an alienation by a Hindu widow otherwise not justifiable. They say: 'It is immaterial whether the concurrence of the reversioners was given at the time the alienation was made or it was given after the execution of the deeds of alienation--Bajrangi Singh v. Manokarnika Baksh Singh I.L.R. (1907) A.1. But this probably rests on the view that the alienations themselves are only voidable. If, on the other hand, a manager's alienation is void because it is not for justifiable necessity, it is difficult to see how the subsequent assent of the remaining members of the co-parcenery can validate an alienation void in its inception.
3. But in this case the District Judge says : 'The District Munsif was certainly right in assuming that appellant knew of and probably also acquiesced in the transaction, especially as there was more than one isolated instance in which appellant took the receipts.' If this means that there was a consent to the mortgage at the time of its execution, the appellant's interest is certainly bound. But if it means the same thing as the ratification, which the Judge speaks of subsequently, we think it is not sufficient to bind the 8th defendant.
4. We must ask the District judge to find upon the evidence on record 'whether the 8th defendant assented to the mortgage at the time of its execution.' The finding should be submitted within six weeks, and seven days will be allowed for filing objections.