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Audimula Mudali Minor by His Next Friend Doraiswamy Mudali Vs. Alamalammal and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in36Ind.Cas.365
AppellantAudimula Mudali Minor by His Next Friend Doraiswamy Mudali
RespondentAlamalammal and ors.
Cases ReferredBijraj Nopani v. Sreemutty Pura Sundary Dasee
Excerpt:
vendor and purchaser - joint hindu family--sale by father--recital as self-acquisition in sale-deed--suit by son to exempt his share--plea., alternative, of family benefit, whether open to purchaser--pleadings -proof-alternative defences. - .....: 9 a.l.j. 509 : (1912) m.w.n. 462 : 16 c.w.n. 577 : 15 c.l.j. 475: 23 m.l.j. 18. in that case the suit document, although executed by the elder brother as sole owner of the properties mortgaged, was also signed by the younger brother who was sought to be made liable on the strength of his signature. their lordships of the judicial committee held that the younger brother was a minor and that consequently his signature to the document did not affect his interest. they say distinctly that on the finding on the question of minority, no other issue arose for decision. that case, therefore, is no authority for the broad proposition advanced by the learned vakil that a party accepting a document is bound by the recitals in it regarding the character of the property and that it is not open to.....
Judgment:

1. The suit was brought for a declaration that the sale by the plaintiff's father was not binding on the plaintiff's interest. The defence was two-fold: (1) that the property was the self-acquired property of the father, and (2) that the sale was binding on the plaintiff as the money was borrowed for family purposes. Issues were raised on these alternative pleas and the case went to trial without any objection. The finding of the lower Appellate Court is that the property is ancestral, but that the sale was effected by the father to meet the demand on the family. Mr. Gr. S. Ramachandra Aiyar's contention in this Court is that the alternative plea is not open to the defendants, as the defendants took the sale-deed on the allegation contained therein that the property was the self-acquired property of the vendor. He relies upon Raja Balwant Singh v. Rev. Rockwell Clancy 14 Ind. Cas 629 : 9 A.L.J. 509 : (1912) M.W.N. 462 : 16 C.W.N. 577 : 15 C.L.J. 475: 23 M.L.J. 18. In that case the suit document, although executed by the elder brother as sole owner of the properties mortgaged, was also signed by the younger brother who was sought to be made liable on the strength of his signature. Their Lordships of the Judicial Committee held that the younger brother was a minor and that consequently his signature to the document did not affect his interest. They say distinctly that on the finding on the question of minority, no other issue arose for decision. That case, therefore, is no authority for the broad proposition advanced by the learned Vakil that a party accepting a document is bound by the recitals in it regarding the character of the property and that it is not open to him to put forward an alternative plea. On the other hand, the decision of their Lordships in Bijraj Nopani v. Sreemutty Pura Sundary Dasee 24 Ind. Cas. 296 : 18 C.W.N. 1313 : (1914) M.W.N. 679 : 16 M.L.T. 338 : 16 Bom. L.R. 796 : 20 C.L.J. 368 is an authority for the position that where a man has a double capacity and purports to deal with property in one only of these capacities, he must be deemed to have parted with every interest vesting in him by virtue of the undisclosed capacity as well. Here, the father could have sold his property either as manger for family purposes, or as owner if the property were his own exclusively. In our opinion the Courts should incline to the view that a transferor alienated the property in the capacity most favourable to a bona fide purchaser.

2. At any rate, the suit having been tried without demur upon the alternative pleas, it is too late now to say that the whole trial is vitiated.

3. We dismiss the Letters Patent Appeal with costs.


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