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Mon Mohan Bhattacharjee and ors. Vs. Bidhu Bhusan Dutta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1939Cal460
AppellantMon Mohan Bhattacharjee and ors.
RespondentBidhu Bhusan Dutta and ors.
Cases ReferredJhaverbhai Hatibhai v. Babhai Becher
Excerpt:
- .....pralhad and dhruba. nut behari married malatimala who is defendant 3. he died leaving two sons ramani mohan and abani mohan who are defendants 1 and 2 respectively. pralhad married satya kumari, defendant 10, and had two sons murari and mani mohan who are defendants 8 and 9 respectively. dhruba married charusila. dhruba predeceased his brothers leaving charusila a childless widow. hari nath died leaving as his heirs two grandsons mohini mohan and debendra by his daughter as his heirs. they are defendants 6 and 7 respectively. the plaintiff's suit is concerned with the eight annas share of the property which belonged to hari mohan. dhruba inherited a one-third share in this property. on his death his widow charusila sold this one-third share to defendant 10 satya kumari, the wife of.....
Judgment:

Sen, J.

1. These are three appeals by some of the defendants in three suits for the declaration of the plaintiffs' title to certain plots of land and for ancillary reliefs. The suits were numbered 949, 950 and 951 of 1934 and were tried together by the Munsif, Second Court, Krishnagar, who decreed them in favour of the plain, tiffs. On appeal, the learned Subordinate Judge upheld the decision of the trial Court making certain modifications in the decree passed with respect to Suit No. 949 of 1934. The defendants have now appealed to this Court. The appeals were taken up for hearing together and this judgment shall govern the three appeals. At the outset learned advocate for the appellants stated that he could not press the appeals arising out of suits numbered 949 and 950. They are Second Appeals Nos. 266' and 268 respectively. These appeals are accordingly dismissed with costs in favour of the appearing respondents.

2. In Suit No. 951 of 1934 out of which Second Appeal No. 267 arises the plaintiff's case briefly is as follows: There were two cousins Hari Mohan and Hari Nath who had an eight annas share each in certain property which they had inherited from their ancestors. These two cousins separated in mess and property. Hari Mohan died leaving three sons Nut Behari, Pralhad and Dhruba. Nut Behari married Malatimala who is defendant 3. He died leaving two sons Ramani Mohan and Abani Mohan who are defendants 1 and 2 respectively. Pralhad married Satya Kumari, defendant 10, and had two sons Murari and Mani Mohan who are defendants 8 and 9 respectively. Dhruba married Charusila. Dhruba predeceased his brothers leaving Charusila a childless widow. Hari Nath died leaving as his heirs two grandsons Mohini Mohan and Debendra by his daughter as his heirs. They are defendants 6 and 7 respectively. The plaintiff's suit is concerned with the eight annas share of the property which belonged to Hari Mohan. Dhruba inherited a one-third share in this property. On his death his widow Charusila sold this one-third share to defendant 10 Satya Kumari, the wife of Pralhad, for legal necessity. Nut Behari and Pralhad then separated and Nut Behari held his one-third share in the property separately. After Pralhad's death, Satya Kumari and her two sons Murari and Mani Mohan together had a two-third share in the property of Hari Mohan. The plaintiff by three kobalas Bxs. 6, 6-a and 6-b purchased certain plots of land appertaining to this two-third share. This was in Falgoon and Chaitra 1335 B.S. corresponding to Eebru-ary and March 1929, and in Baisakh 1336 B.S. corresponding to April and May 1929. The kobalas were executed by Murari on his own behalf and by Satya Kumari for self and as guardian of her minor son Mani Mohan (defendant 9). In the kobala Ex. 6 (a) it was recited that the sale was effected to raise funds to meet the current family expenses and to pay off certain debts. In the kobalas Exs. 6 and 6 (b) it is stated that the property was sold to raise money to meet the marriage expenses of Murari, the adult male son of Satya Kumari. After the sale the plaintiff possessed the land peacefully till 1340 B.S. corresponding to 1933 and 1934, when some of the paddy on the land was forcibly reaped by some of the defendants. Defendant 6 then brought a collusive and fraudulent partition suit being Title Suit No. 1 of 1931 and had a compromise decree passed therein declaring that Hari Mohan had a seven annas share in the ancestral property and Hari Nath a nine annas share therein. The plaintiff contended that this was a fraudulent decree and that in any case it was not binding on him. He accordingly sued for a declaration of his title to the property in suit, for confirmation of his possession and for ancillary reliefs.

3. Various defences were taken in the trial Court but for the purposes of this appeal the following only need be mentioned. It was contended that Hari Mohan's share was 7 annas and not 8 annas and that this was declared in a decree passed in a partition suit; the sale by Charusila to Satya Kumari was alleged to be invalid as there was no legal necessity for the sale; as regards the sales by defendants 8, 9 and 10 to the plaintiff, the defence was that the sale was void inasmuch as the vendors when they executed the sale deeds were fraudulently induced by the plaintiff into believing that they were executing powers of attorney in favour of the plaintiff. Defendants 4 and 5 claimed to have purchased some of the properties in suit from defendants 8 and 9 in the year 1933 by a kobala Ex. 1 and defendant 6 claimed to have purchased some of the properties in suit in execution of his decree for costs in the Partition Suit No. 1 of 1931. The trial Court held against the defendants on all points. In the lower Appellate Court an additional point was taken. It was contended that the share of defendant 9, Mani Mohan, was not affected by the transfers effected by the kobalas Exs. 6 and 6(b). On the dates of these-kobalas defendant 9 was a minor and his share was transferred by his mother, defendant 10, acting as his guardian in order to meet the marriage expenses of his elder son Murari (defendant 8) who was then a major. The argument is that under the Hindu law the minor's property could not be made liable for such an expenditure and that therefore Mani Mohan's share was unaffected by these transfers. The lower Appellate Court concurred in the finding of the trial Court as regards the defences taken there. With respect to the new point raised the lower Appellate Court makes the following observations:

It is true that the eldest son's marriage expenses could not be a legal necessity, but the thing is that the mother really required money for meeting the current expenses of the joint family she was in charge of and so there was legal necessity.

4. The learned Subordinate Judge then goes on to say that even if it be held that there was no 'legal necessity' for the sale, the plaintiff's title should be declared for the following reasons. He points out that the sale of Mani Mohan's share was not void but voidable and that after the sale all that remained in Mani Mohan was a mere-right to sue to set aside the sale and nothing more. This right the learned Judge holds is not transferable by reason of the-provisions of Section 6, T.P. Act, and he decided consequently that defendants 4 and 5 got nothing by the transfer. As regards defendant 6, the learned Subordinate Judge holds that the partition decree in execution of which defendant 6 purchased part of the property was a nullity and that defendant 6 obtained nothing by his purchase. On these findings the learned Subordinate Judge upheld the decree of the trial Court.

5. In this Court learned Advocate for the appellants stated that he would urge only one point against the decision of the lower Appellate Court and that he accepted all the other findings. The argument briefly is as follows: The share of Mani Mohan in the property left by Pralhad was not liable to meet the marriage expenses of Murari and therefore the transfers executed by Exs. 6 and 6 (b) could not affect Mani Mohan's share. The learned Subordinate Judge was wrong in holding that the money was required to meet the current expenses of the family. He was also wrong in his view that after the sales Mani Mohan had no interest left in the property except a mere right to sue to set the sales aside. It was contended that by the subsequent sale to defendants & and 5 by Ex. 1 Mani Mohan expressed his intention to avoid the sales effected during his minority and that by this subsequent sale the previous sales, so far as they affected Mani Mohan's share, were made void. On these grounds it was urged that the plaintiff's title with respect to the share of Mani Mohan in the property in suit transferred by the kobala 6 and 6 (b) had not been established. This in substance is the argument urged before me. Learned advocate for the appellants had no objection to the suit being decreed with respect to the rest of the property.

6. In my opinion the learned Subordinate Judge was wrong in holding that the sales effected by the kobalas Exs. 6 and 6 (b) were for the purpose of raising money for meeting what he describes as the 'Current expenses' of the joint family. The documents recite that the money was required for meeting the expenses of the marriage of' Murari and there are no materials placed before me in support of the view of the learned Subordinate Judge which is mere surmise. The question therefore which first arises for determination is whether the share of Mani Mohan in the property is liable to meet the expenses of Murari's marriage. Learned advocate for the respondent contends that under the Hindu law the entire joint family property is liable for the debts reasonably incurred for the marriage of a male member thereof and he referred me to the Full Bench decision in Gopala Krishnamaraju v. Venkatanarasa Raju (1914) 1 A.I.R. Mad. 432 and to the case in Sundar Bai v. Shiv Narayana (1908) 32 Bom. 81. Both these cases undoubtedly lay down the principle contended for by the learned advocate for the respondent.

7. The Madras case Gopala Krishnamaraju v. Venkatanarasa Raju (1914) 1 A.I.R. Mad. 432 is exactly in point. There three brothers mortgaged their joint property to raise funds to meet the marriage expenses of one of them who was an adult. One of the three brothers was a minor at the time. In a suit on the mortgage it was contended that the share of the minor brother was not bound by the mortgage. The Full Bench held that marriage is obligatory on a Hindu who does not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi and that, that being so, the debts reasonably incurred for the marriage of a twice born Hindu male are binding on the joint family properties.

8. The Bombay decision deals with the matter exhaustively. The learned Judge' referred to a text of Yajnavalkya cited and' expounded in the Mitakshara where it is laid down that in a joint Hindu family consisting of several brothers of whom some have and others have not had their sacramental ceremonies (Sanskaras) performed' by their father during his lifetime, the former are bound to get these ceremonies performed in respect of the latter out of their joint property. The learned Judge then went on to discuss whether the term 'Sanskara' would include the marriage ceremony of a male and after an elaborate examination of the different texts on the point concludes that it does. I respectfully agree with the view that the term 'Sanskara' includes the sacrament of marriage. Golap Chandra Sarkar Sastri in his treatise on Hindu law states that marriage is the last of the 'Sanskaras' or sacramental rites that are ordained to have the effect of purifying the body specially from inherited taint if any. (Hindu Law by Golap Chandra Sarkar Sastri Edn. 7, p. 161.) If joint property is liable for the debts incurred for performing the ' Sanskaras' of a co-parcener then certainly the marriage expenses of a male co-parcener would be a liability on the joint property. Learned advocate for the appellant in meeting this argument says that this may be the law according to the Mitakshara School of Hindu law but that it is not so according to the Dayabhaga School. He points out; that the decisions relied on deal with persons governed by the Mitakshara. He was not able however to point out any text in or ruling under the Dayabhaga law which is contrary to the view expressed in the cases mentioned above, nor have I been able to find any decision or text which would establish that the Dayabhaga lay down a different rule. There is a case decided by this Court which has I think some bearing on the question. I refer to the case in Ramjas Agarwalla v. Chand Mondal (1937) 41 C.W.N. 1176. In this case two brothers, one a major and one a minor, owned some property. This property was mortgaged by the major brother and his mother acting as guardian of the minor brother. The bond recited that the money was raised to meet the marriage expenses of the minor brother. The question arose whether the marriage expense of the minor constituted a legal necessity which would justify the guardian in mortgaging the property. The case in 32 Bom 812 was referred to and Mukherjea J. in dealing with that case said:

It is true that marriage is a sacrament or Sanskar in Hindu law and the only Sanskar for those who are not twice born.

9. He goes on to say that the Hindu law however did not sanction early marriages of males and he quotes the text of Manu which says:

Let a man of 30 years marry an agreeable girl of 12 years or a man of thrice eight years a girl of eight years, one marrying earlier deviates from duty.

10. Mukherjea J. then went on to point out that the marriage of this minor was in contravention of the provisions of the Child Marriage Restraint Act of 1929 and held that such a marriage did not furnish a legal necessity. I refer to this case merely for the purpose of showing that this Court considered the Bombay decision and did not dissent from the view laid down there that the marriage expenses of a male coparcener are to be met out of the entire joint estate. Prom the texts and the authorities I am of opinion that the expenses of the marriage of a Hindu male co-parcener are to be met out of the joint estate in this province as well. Although the Dayabhaga School of law prevails here nevertheless the Mitakshara is to be considered as very high authority in Bengal on all questions in respect of which there is no conflict between it and the Dayabhaga. In this view of the law, I hold that the sales in favour of the plaintiff by Exs. 6 and 6 (b) are valid and binding on the share of Mani Mohan as well on that of Murari and Satya Kumari.

11. This is sufficient to dispose of the appeal-I propose however to give my opinion on the other contention raised by the respondent, namely that even if it be held that Mani Mohan's share in the property was not liable for the debts incurred for meeting the marriage expenses of Murari nevertheless the validity of the sales could not be questioned inasmuoh as Mani Mohan had not got the sales set aside and inasmuch as defendants 4 and 5 got nothing by the purchase in 1933 of Mani Mohan's share as Mani Mohan at that time had merely a, right to sue which was not transferable at law. It is now well established that the sale by the natural guardian of a Hindu minor of the minor's property when there is no legal necessity for such sale is not void but voidable and that the sale is valid until set aside. The minor on attaining majority has the right to have the sale set aside and he must do so within the period fixed by Article 44, Limitation Act. No question of limitation arises in this case but Mani Mohan though he has attained majority has not yet had the sales set aside. The sales therefore stand and are valid. It certainly cannot be said that the sales have been set aside merely because Mani Mohan has chosen to ignore the sales by his guardian and to sell the same property to defendants 4 and 5. It has been found by both Courts that the plaintiff went into possession after his purchase and is still in possession. In these circumstances all the interest which Mani Mohan possessed in the property was a mere right to sue to have the sale set aside. The transfer of such a right is clearly prohibited by Section 6(e), T.P. Act. The purchaser from Mani Mohan by the Kobala Ex. 1 therefore got nothing. There is an additional reason why the appellants cannot succeed. Murari, Mani Mohan and Satya Kumari who were defendants 8, 9 and 10 and who were the vendors in the sales sought to be impugned did not appeal against the decision of the trial Court. The only person who had the right to question the sale is Mani Mohan and as he has accepted the decision of the trial Court it must be taken that he has acquiesced in the sale and elected not to dispute it. The right to question the validity of the sale is a personal right of the minor Mani Mohan which he could have exercised on attaining majority. Defendants 4 and 5 have not acquired this right by their purchase of the property from him. In this connexion I would refer to the case in Jhaverbhai Hatibhai v. Babhai Becher (1933) 20 A.I.R. Bom. 1512. In view of the findings arrived at, this appeal also must be dismissed with costs.


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