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Medikenduri and ors. Vs. Kata Venkatayya and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2411 of 1948
Judge
Reported inAIR1953Mad210; (1952)IIMLJ484
ActsHindu Law
AppellantMedikenduri and ors.
RespondentKata Venkatayya and anr.
Appellant AdvocateM. Ramchandra Rao and ;L. Krishna Rao, Advs.
Respondent AdvocateK. Kottayya, Adv.
DispositionAppeal dismissed
Cases ReferredBaijuath Thakur v. Survan Chowdhury
Excerpt:
.....it was convenient for better management and was in no way prejudicial to the interests of the joint family. the preservation, however, of the estate, from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits. to take a familiar example, where unproductive immovable property is sold with a view to the investment of the proceeds in the purchase of more suitable property, we fail to see why the sale should be condemned as not being for a justifiable purpose. a year thereafter the bank failed and the question arose whether the sale would be supported on the ground of benefit to the estate. the learned judge held that the sale by the father was..........are the sons of the first defendant. the first defendant and the plaintiff's constitute a hindu joint family of which the first defendant is the manager. the family owned considerable properties including the suit properties. the properties in suit were given to the adoptive mother of the first defendant in lieu of her maintenance. on the 2nd of february 1944, the first defendant entered into an agreement for the purchase of lands in a village called kakumanu and paid an advance of rs. 450. he had to get a sum of rs. 700 from the vendors. in order to find the balance of the purchase money, he sold the lands in question under ex. d. 2 to the second defendant on 5-2-1944 for a sum of rs. 2000.the lands purchased by the first defendant were of the extent of 5 acres, and 3 cents while the.....
Judgment:

Chandra Reddy, J.

1. This second appeal is filed by the plaintiffs against the judgment of the Subordinate Judge of Guntur reversing the decree of the District Munsif, Guntur, in their favour. The reliefs claimed in the plaint are a permanent injunction restraining the defendants from disturbing their possession or in the alternative for possession and alternatively for division of the suit properties and allotment of 4/5 share to them. There was prayer for mesne profits also.

2. The material facts are these: The plaintiffs who were minors at the time of the filing of this suit are the sons of the first defendant. The first defendant and the plaintiff's constitute a Hindu joint family of which the first defendant is the manager. The family owned considerable properties including the suit properties. The properties in suit were given to the adoptive mother of the first defendant in lieu of her maintenance. On the 2nd of February 1944, the first defendant entered into an agreement for the purchase of lands in a village called Kakumanu and paid an advance of Rs. 450. He had to get a sum of Rs. 700 from the vendors. In order to find the balance of the purchase money, he sold the lands in question under Ex. D. 2 to the second defendant on 5-2-1944 for a sum of Rs. 2000.

The lands purchased by the first defendant were of the extent of 5 acres, and 3 cents while the lands sold by the first defendant were of the extent of 3 acres. Subsequently the first defendant sold three acres 53 cents and retained for the family 1 acre and 50 cents. Shortly after this the plaintiffs instituted the present suit represented by their mother as their guardian alleging that the sale by the father under Ex. D. 2 in favour of the second defendant was a sham and collusive transaction not supported by consideration and that, in any event, the sale did not bind their four fifths share in the family property as it was not for purposes binding upon the family.

3. The first defendant remained ex parte. The suit was contested by the second and third defendants, the latter being a lessee from the second defendant. The chief defences to the suit are: that the sale was fully supported by consideration and was a bona fide transaction and it was binding on all the members of the family as it was in the interests of the joint family to enter into the transaction impugned.

4. The trial court upheld the plea of the second defendant so far as the genuineness of the transaction was concerned but it agreed with the defendants that the sale in question was not one that conferred any benefit on the family and, therefore, not binding on the plaintiff and decreed the suit for partition and allotment of 4/5 share in the suit properties to the plaintiffs. The second defendant filed an appeal against the judgment of the District Munsif, The plaintiffs acquiesced in the finding of the trial court as regards the payment of consideration and that finding has become final. The Subordinate Judge reversing the decree of the trial court held that the sale in question could be supported both on the ground of antecedent debt and benefit to the estate. The plaintiffs who are aggrieved by this decision have preferred this second appeal.

5. In support of this appeal Mr. Ramachandra Rao contended that the findings of the lower appellate court both as regards that nature of the debt for the discharge of which the suit transaction was entered into and as to the benefit conferred on the family cannot be supported. It was urged by him that the debt incurred by the first defendant for purchasing the lands in Kakumanu cannot be an antecedent debt for the reason that there is no antecedency in fact. There seems to be great force in this argument of Mr. Ramchandra Rao. Remembering the shortness of the interval between the date of the agreement for the purchase of the lands at Kakumanu and the sale of the suit lands, it seems to be difficult to predicate that the debt was antecedent ally incurred and there was real dissociation between the two transactions. In order to support a sale on the doctrine of antecedent debt there should not only be antecedency in time but there should be real dissociation in fact. It is unnecessary to refer to various decisions that have laid this, proposition.

It should also be noted in this connection that at the time when the first defendant entered into an agreement for the purchase of Kakumanu lands he was at the end of his personal resources and he must have contemplated a sale of this land for the purpose of discharging the liability. There can therefore be no basis for holding that the sale of the suit lands in favour of the second defendant can be validated on the doctrine of antecedent debt. It follows that the finding of the trial court that the sale in question was effected with a view to discharge an antecedent liability cannot be sustained.

6. This does not however dispose of the second appeal. The question remains whether the sale can be sustained on the plea of benefit to the family. It should be borne in mind in this connection that the suit lands were given to one Rangamma, the adoptive mother of the first defendant, in lieu of maintenance and so far as the plaintiffs' family is concerned it was not fetching any income whereas by the purchase of the Kakumanu lands, the plaintiffs' family was deriving an annual income of about Rs. 170. The land purchased was wet land while the land which is now the subject-matter of this appeal is dry land.

7. The main contention of Mr. Ramachandra Rao was that the sale of ancestral land by a manager of a joint family in order to purchase lands elsewhere cannot constitute a benefit to the estate so as to be binding on the joint Hindu family and the sale can be justified only for the preservation or protection of the other properties of the family. In support of this contention, he relied on some decisions of this court in - 'In re Krishnaswami Doss Reddi', 1912 M. W. N. J 67. Sundara Aiyar J. expressed the opinion that the sale by a Hindu father of ' ancestral property for the purpose of purchasing lands elsewhere could not be binding on the family, although it was convenient for better management and was in no way prejudicial to the interests of the joint family. This view is shared by a Bench of this Court in - 'Subramania Nadan v. Ramasami Nadan', 25 M. L. J. 563. It was decided by Wallis C. J. and Kumaraswami Sastri J. in - 'Ganesa Aiyar v Amirthasami Odayar'. 1918 M. W. N. 892 that the sale of family lands by a Hindu father, some miles away from his place of residence, for the purchase of lands nearer home cannot be justified and would not bind the other members of the joint family.

8. Reliance was also placed on behalf of the appellants on the decision of the Privy Council in - 'Palaniappa Chetty v. Sreemath Devasikhamony Pandara Sannadhi', 40 Mad. 709. In that case, it was held by the Privy Council that the 'shebait' of a Hindu temple is not entitled to sell a 'debattar' property for the purpose of fetching an interest larger than the income to be derived from the property. I do not think that this last case is of much assistance to the appellant. The observations relied upon by the learned counsel in support of his contention that the benefit to the estate must be only of a defensive character and should be calculated to preserve or to protect the estate occur in the following passage:

'The preservation, however, of the estate, from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.'

But it should not be forgotten that their Lordships have definitely stated that it is impossible to give a precise definition of benefit applicable to all cases and they did not attempt to do so. Further, in that case their Lordships were dealing with an alienation by a 'shebait' and it cannot be overlooked that there is a real distinction between an alienation by a manager of a joint Hindu family and an alienation by a 'shebait' of a temple. In my opinion the powers of a manager of a joint Hindu family are larger than those of a 'shebait' of a temple in this respect.

9. In this connection, the dictum laid down by the Privy Council in - 'Hanooman Persad Panday v. Mussamat Babooee Munraj Koonwaree', 6 M. I. A. 392 in dealing with the question as to the circumstances under which alienation of joint family properties by a Hindu father would bind the estate may usefully be extracted:

'The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance is a thing to be regarded.'

This passage in the judgment of their Lordships in my opinion does not lend countenance to the contention that in order to validate a sale of ancestral land by the father the benefit should be purely of a defensive or protective character. To hold so would be to miss the significance of the expression 'benefit to the estate'. If it was purely of a defensive character, there was absolutely no necessity for the expression 'benefit to be conferred on the estate' because the actual pressure on the estate and the danger to be averted will cover the case of necessity.

10. In this connection it may not be out of place to refer to the text on Mitakshara dealing with alienation of joint family properties by a Hindu father. The three circumstances under Which the sale can be effected are stated to be 'Apathkala', translated as time of distress; 'Kutumbartha'. i.e., for the benefit of the family and 'Dharmartha', i.e., for pious purposes. The author of the Mitakshara illustrates the reference to 'Kutumbartha' by referring to 'Kutumba Poshana'. The reference to 'Kutumba Poshana' cannot be taken as exhaustive but only as illustrative. If it was only a need of defensive character that could validate the sale of ancestral land, there was no necessity to lay down the second circumstance, namely, 'kutumbartha'. That the benefit to be conferred on the estate is not synonymous with necessity is illustrated in a recent case in which there is amarked departure from the view taken in the earlier cases that the benefit to the estate should be of a defensive or preservative character.

11. In - 'Sellappa v. Suppan', I.L.R. 1937 Mad. 906 Venkatasubba Rao J. who was one of the members of the Bench observed after referring to - 'Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi', 40 Mad 709 as follows:

'To infer from the three instances given in this passage that the transaction should be of a defensive nature does not seem warranted by the language used. These three instances are given as eases of obvious benefit, which seems necessarily to imply, far from suggesting the contrary, that cases of less obvious benefit are not to be excluded. Indeed it could be easily conceived what strange anomalies would arise were the restricted view to prevail. To take a familiar example, where unproductive immovable property is sold with a view to the investment of the proceeds in the purchase of more suitable property, we fail to see why the sale should be condemned as not being for a justifiable purpose. Other similar cases may be supposed in which it would be in the interests of the coparcenary to sell ancestral property with a view to make a fresh purchase.'

12. The learned Judge refers to the Full Bench decision of the Allahabad High Court in - 'Jagat Narain v. Mathuradas', 50 All. 969 with approval. In the Allahabad case, a Hindu father sold joint family properties and put it in a bank. A year thereafter the bank failed and the question arose whether the sale would be supported on the ground of benefit to the estate. The learned Judges held that it was binding on the family as the transaction was calculated to confer benefit on the estate and was such as would be entered into by prudent owner of properties. The test propounded by the learned Judges there was whether the transaction was such as a prudent owner would enter into.

13. The trend of the recent cases has been to lean strongly towards sustaining such alienations if they were beneficial to the family from a financial point of view or advantageous otherwise, as can be seen not only from the cases cited above hut also the unreported decisions of this court.

14. In - 'App. Nos. 60 and 61, of 1934', Varadachariar and King JJ. upheld the alienation of ancestral property by a Hindu father in the following circumstances: In 1927 certain items of the joint family properties were sold by the father of a Hindu joint family and a portion of the sale proceeds was invested in the purchase of lands for the family and the other portion was utilised for investing in family businesses. In dealing with this question, their Lordships observe that so long as the father was actuated by a desire to benefit the family, the alienation could not be said to be an invalid one. The test laid down there by the learned Judge was one of prudence and benefit to the estate. The learned Judge remarked that in the absence of proof that the father was not prompted by improper motives in alienating the property the transaction should be held to be one binding on the members of the family.

15. In - 'App. Up. 206 of 1942' another Bench of this court expressed the same opinion as in - 'App. Nos. 60 and 61 of 1934'.

There, ancestral lands were sold for Rs. 73,000 out of which Rs. 37,000 was applied for buying lands nearer home. With regard to the balance, it was not proved that it was used for purposes binding on the estate. The learned Judge held that the sale by the father was valid for the reason that a good portion was used for buying land. The fact that other portion of the sale price was not proved to have been used for binding purposes did not in the opinion of the learned Judge render the sale an ineffective one, since the purchasers had made bona fide enquiries as to the need for the sale.

To the same effect as the decision of the learned Chief Justice and Satyanarayana Rao J. in - 'App. Nos. 261 and 418 of 1946'. There a Hindu widow mortgaged properties belonging to her husband's estate to discharge a debt which she incurred for converting an old house into a terraced house. The question was whether the original borrowing was for the benefit of the family. The learned Judges following the ruling in - 'Sellappa v. Suppan', I. L. R. 1937 Mad. 906 and the decision in - 'App. Nos. 60 and 61 of 1944' upheld the transaction as in their opinion it was calculated to confer benefit on the estate.

16. Mr. Ramachandra Rao cited the decision in - 'Hemraju Dattubuva v. Nathu', 59 Bom. 525, as substantiating his contention. But I do not think it really lends much support to it. What was laid down there was that the manager of a minor's estate is not entitled to alienate the minor's property for the purpose of enhancing the value of the estate or for the purpose of increasing the income but it would not be safe to hold that a transaction which is not of a preservative or productive character would not be said to be for the benefit of the minor. From this it is clear that the contention that the benefit should be of a defensive character was repelled. After referring to the several authorities touching the subject, the learned Chief Justice stated thus: 'On the other hand I am not prepared to go quite so far as Mr. Justice Patker went in - 'Ragho v. Zaga Ekoba', 53 Bom. 419 and to say that no transaction can be for the benefit of the minor which is not of a character to protect or preserve property of the minor. It would, generally, I think, be difficult to justify a sale not of that character, but I can conceive of cases not of that character in which the facts might nevertheless be of such a compelling character that any court would hold the transactions to be for the benefit of the estate, e.g., the sale of the land which could not conveniently be cultivated with other property of the minor, and the investment of the purchase money in lands which could be so conveniently cultivated, assuming, of course that the price obtained, and the price paid, were proper, or the sale of lands in order to raise money to secure irrigation or permanent improvement of the other lands of the minor; or a beneficial exchange; or a case like the one in - 'Nagindas Maneklal v. Mahomed Yusuf, 46 Bom. 312 where it was necessary to sell in order to prevent the destruction of the property.'

17. I do not think that these observations give any support to the proposition that in no case can a sale of ancestral lands would be justified except it be for the preservation or protection of that estate. If the sale is really beneficial and advantageous to the estate I do not find any reason why it should not be upheld.

18. The Patna High Court seems to have taken the same view that is expressed by this court in - 'Sellappa v. Suppan', ILR 1937 Mad 906; in - 'Baijuath Thakur v. Survan Chowdhury', : AIR1940Pat423 , where a mortgage by the manager of a joint Hindu family in order to purchase lands for the benefit of the family was held to be binding on the family.

19. On a consideration of the decided cases and the textual authority bearing on the subject, I have reached the conclusion that if the transaction is not a speculative or risky one but is beneficial or advantageous from the financial point of view and is calculated to confer a benefit on the estate the sale must be held to be a valid one binding on the members of the estate. Whether a particular transaction is beneficial to the estate or not varies according to the circumstances of that case.

20. In these circumstances I hold that the view of the learned Subordinate Judge that the sale conferred a benefit on the family and is consequently a valid one binding on the plaintiffs is a sound one and cannot be set aside.

21. The result is that the decision of the lower appellate court is confirmed and the second appeal is dismissed. The respondent will get two-thirds of his costs throughout. No leave.


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