Radha Krishnadas Vs. Kaluram  INSC
133 (10 April 1962)
10/04/1962 MUDHOLKAR, J.R.
CITATION: 1967 AIR 574 1963 SCR (1) 648
CITATOR INFO :
R 1980 SC 645 (4)
Hindu Law-Joint family property-Sale by father
and Minor son-Whether binding on minor sonLegal necessity for part of sale
consideration-If alienation justifiedInterpretation of sale deed-If transfers
cultivatory right in Sir also-C.
P. Tenancy Act, 1920 (C. P. 1 of 1920), s. 49
R and his father executed a sale for Rs.
ring 16 annas interest in two villages
belonging to the joint family ,together with sir and khudkashat lands........
as well as the cultivated and the
uncultivated lands in the village with all the rights and privileges".
R filed a suit to set aside the sale on the
grounds that actually he was a minor when he executed the sale deed and that
the legal necessity was only for Rs. 45,000/-. He further contended that the
cultivatory rights in the sir lands were not transferred and claimed possession
Held, that the alienation was for legal
necessity and was valid and binding, The alience was only required to establish
legal necessity for the transaction and it was not necessary for him to show
that every bit of the consideration was applied for meeting family necessity.
The transaction being for legal necessity the father was competent to execute
the sale deed binding on the entire family and the joining of R, even though he
was a minor, did not affect its validity or binding character.
649 Sri Krishan Das v. Nathu Ram, 1. L. R. 49
All. 149 (P. C.) and Naimat Rai v. Din Dayal, 1. L. R. 8 Lah. 597 (C.) relied
Gharib-Ullah v. Khalak Singh, I. L. R. 25
All. 407 (C.) Kanti Chunder Goswami v. Bisheswar Goswami, 25 Cal.585 Biraj
Nopani Pura Sundary Dasee, 42 Cal. 56 (P. C.), referred to.
Held, further, that cultivating rights in the
sir lands bad also been expressly transferred to the vendees by the sale deed.
The provisions of s. 49 (1) of the C. P. Tenancy Act, 1920, that there must be
an express agreement between the transferor and the transferee concerning the
transfer of the cultivating rights in sir land are satisfied where the sale
deed not only transferred sir and Khudkashat lands, cultivated and uncultivated
lands but transferred these properties along with "all rights and
privileges", since they would include cultivating rights in sir land.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 49 of 1958.
Appeal from the judgment and decree dated
April 17, 1954, of the former Nagpur High Court in F. As. Nos. 95 and 103 and
S. P. Sinha, Yogeshwar Prasad and M. 1.
Khowaja, for the appellants.
Achhru Ram and Ganpat Rai, for respondents
Nos. 1 (a) to 1 (d), (2) and 4.
1962. April 10. The Judgment of the Court was
delivered by MUDHOLKAR, J.-This is an appeal by certificate from the decree of
the High Court of Nagpur dismissing the appellants' suit for setting aside sale
of two villages mauza Amaldihi and mouza Gondhami situate in Mungali tehsil,
It is common ground that the two villages,
along with several others, were the Joint family property of the appellant,and
their father the third 650 defendant, Gorelal. On April 8, 1944, Gorelal,
acting for himself and as guardian of his minor son Balramdas, appellant No. 2
and Radhakrishnadas, appellant No. 1 describing himself as a major executed a
sale deed in favour of two persons, Pandit Ramlal, son of Motiram, defendant
No. 2 and Kaluram the first defendant for a consideration of Rs. 50,000/-. It
was stated in the sale deed that the executants were transferring full 16 annas
interest in the village Amaldihi and Gondkhami ','together with sir and
khudkast lands, grass, kothar padia gochar rivers, brooks, wells, tanks,
bandkies, orchards and gardens and houses and the like, as well &is the
cultivated and the uncultivated lands in the village with all the rights and
privileges." The entire sixteen annas share in mauza Gondkhami and twelve
annas share in mauza Amaldihi was sold to Kaluram for Rs. 37,500/and the
remaining four annas share of Amaldihi to Pandit Ramlal for Rs. 12,500/-. Out
of the consideration of Rs. 50,000/a sum of Rs. 30,491/8/was kept with Kalaram
for satisfying a mortgage decree obtained against the family by one Gayaram in
respect of these two village; as' well as two other villages. Similarly a
further amount of Rs. 2,000/was allowed to be retained by Kaluram for paying
the land revenue due in respect of these villages. The balance of the amount
was received in cash. It was further stated in the sale deed that this amount
was required for performing the marriages of the appellant No. 1
Radhakrishnadas and Gorelal's daughter Ramjibai, who were both stated to be
majors. The possession of the property sold was handed over to the defendant 1
and 2 who are respondents 1 and 2 to the appeal.
On May 5, 1945, the two appellants instituted
a suit out of which this appeal arises. It was contended in the suit that since
the income of the 651 family was Rs. 7,000/. per year, considerable savings
could be made out of it after defraying the expenses of the family. There was,
therefore, no necessity for executing the sale deed. It was further stated that
the consideration for the sale was extremely low, bearing in mind the value of
the two villages. It was further stated that the appellant No. I who was one of
the executants of the sale deed was in fact a minor on the date of its
execution and, therefore, the document is void in so far as his interest in the
property sold is concerned. It was then stated that the sale deed did not
purport to transfer the cultivating rights in the sir lands in the two villages
and, therefore, in any case only the proprietary interest in the sir land could
pass to the respondents 1 and 2 under the sale.
The trial court negatived the appellants'
contention about the want of legal necessity for the sale and found as a fact
that Rs. 10,000 were required for the marriages of the appellant No. 1 and his
sister Ramjibai, Rs;. 7, 508-8-0 for paying various creditors, Rs. 1,655-2-0
for the payment of land revenue and the balance to satisfy the mortgage decree
of Gayaram Sao. It, however, found that the appellant No. 1 was a minor at the
date of the execution of the sale deed and that its execution by him was void
and ineffective. But it held that he is bound by the sale deed as his father
Gorelal, who is respondent No. 3 to the appeal, is to be deemed to have
executed the sale deed as Manager of the family. It, however, upon a
construction of the sale deed, came to the conclusion that cultivating rights
in sir were not transferred thereunder and, therefore, passed a decree in
favour of the appellants for possession of the sir lands in the suit as these
lands had become their ex-proprietary occupancy lands by virtue of s. 49 (1) of
the C. P. Tenancy Act, 1920 (C. P. 1 of 1920). The appellants preferred an
appeal before the High Court against that part of the decree which dismissed
their claim 652 for the possession of their share in the villages. The
respondents 1 and 2 preferred a cross-appeal. These appeals were heard together
and while the appellants' appeal was dismissed, that of the respondents was
Before us Mr. S. P. Sinha accepts the
position that Rs. 45,000/. out of the consideration of Rs. 50,000/was in fact
for debts binding on the family, but contends that even so it cannot be said
that there was legal necessity for the sale. His argument is that a sum of Rs.
5,000 or so for which, according to him, legal necessity had not been
established was not a negligible part of the consideration of Rs. 50,000/-.
This argument is based upon a misapprehension of the true legal position. It is
well established by the decisions of the Courts in India and the Privy Council
that what the alience is required to establish is legal necessity for the
transaction and that it is not necessary for him to show that every bit of the
consideration which he advanced was actually applied for meeting family
necessity. In this connection we may refer to two decisions of the Privy
Council. One is Sri Krishan Das v. Nathu Ram (1). In that case the consideration
for the alienation was Rs. 35,000/-. The alience was able to prove that there
was legal necessity only to the extent of Rs. 3,000/and not for the balance.
The High Court hold that the alienation could be set aside upon the plaintiff's
paying Rs. 3,000/to the alience. But the Privy Council reversed the decision of
the High Court observing that the High Court had completely misapprehended the
principle of law applicable to a case of this kind.
What the alience has to establish is the
necessity for the transaction. If he establishes that then he cannot be
expected to establish how the consideration furnished by him was applied by the
alienor. The reason for this, as has been stated by the Privy Council in some
other cases, is that the (1) I L.R. 49 All. 149 (P.C.) 653 alience can rarely
have the means of controlling and directing the actual application of the money
paid or advanced by him unless he enters into the management himself. This
decision was followed by the Privy Council in Niamat Rai v. Din Dayal where at
p. 602 and 693 it has observed :
"It appears from the judgment of the
learned Judges of the High Court that if they had been satisfied that the whole
of the Rs. 38, 400 paid out of the sale proceeds was paid in discharge of debts
incurred before the negotiation of sale, they would have been of opinion that
the sale ought to have been upheld. With this conclusion their Lordships agree,
but they are of opinion that undue importance was attached by the learned
Judges to the question whether some of the payments where made in discharge of
debts incurred i n the interval between the negotiation of the sale and the
execution of the sale deed. Even if there had been no joint family business,
proof that the property had been sold for Rs. 43,500 to satisfy pre-existing
debts to the amount of Rs. 38,000 would have been enough to support the sale
without showing how the balance had been applied, as held by their Lordships in
the recent case of Krishan Das v.
Arathu Ram. (2) " Both these decisions
stale the correct legal position, Mr. Sinha's argument must, therefore, be
His next argument is that the appellant No. 1
Radhakrishnadas having been found to be a minor on the date of the transaction,
that transaction cannot bind his interests. If the appellants' father, Gorelal,
who was admittedly the manager of the family, had not joined in the sale deed,
the appellant No. 1 could have contended with profit that the transaction does
not bind him. As it is, his joining (1) 1. L. R 8 Lah. 597 (P.C.) (2) 1 L. R.
49. All. 149 (P.C.) 654 as an executant in the sale deed does not make any
difference. The fact that sale deed had been executed also by his father who
was the manager of the family makes the transaction binding upon him just as it
is admittedly binding upon his brother, the second appellant, who was then a
minor. Mr. Sinha, however, contended that the fact that the appellant No. I was
required by the alience, respondents 1 and 2. to join in the transaction
clearly shows that Gurelal in executing the sale deed did not and could not act
for him. We cannot accept the argument. For ascertaining whether in a
particular transaction the manager purports to act on behalf of the family or
in his individual capacity one has to see the nature of the transaction and the
purpose for which the transaction has been entered into. A manager does not
cease to be a manager merely because in the transaction entered into by him a
junior member of the family, who was a major, or believed to be a major also
joined. It is not unusual for alienees to require major members of the family
to join in transactions entered into by managers for ensuring that later on no
objections to the transaction are raised by such persons. Further, such
circumstance is relevant for being considered by the court while determining
the existence of legal necessity for such a transaction.
But that is all. Here we find that Gorelal
acted not merely for himself but also expressly for his minor son appellant No.
2. The money was required partly for paying antecedent debts, partly for paying
public demands, partly for paying other creditors and partly for performing the
marriages of appellant No. 1 and the latter's sister Ramjibai. It is thus clear
that Rs. 45,000/out of the consideration of Rs. 50,000/were required for the
purposes of the family. Even where such a transaction has been entered into
solely by a manager it would be deemed to be on behalf of the family and
binding on it. The position is not worsened by the fact that 655 a junior
member joins in the transaction and certainly not so when the joining in by
such junior member proves abortive by reason if the fact that member has no
capacity to enter into the transaction because of his minority. In this
connection we may make a mention of three decisions GharibUllah v. Khalak Singh
(1); Kanti Chunder Goswami v. Bisheswar Goswami (2); Bijrai Nopani v. Pura
Sundary Dasee (3) each of which proceeds upon the principle that if one of the
executants to a sale deed or mortgage deed has the capacity to bind the whole
estate, the transaction will bind the interest of all persons who have interest
in that estate.
We have, therefore, no doubt that the second
contention of Mr. Sinha is equally devoid of substance.
Lastly, Mr. Sinha contended that the High
Court was in error in reversing the decree of the trail court in so far as the
sir land is concerned. He has laid particular stress on the fact that the sale
deed at no place says in express terms that cultivating rights in sir land have
also been transferred and said that the absence of such a recital in the sale
deed clearly entitles the alienor to retain possession of the sir land, under
the exception set out in cl. (a) of s. 49 (1) of the C. P. Tenancy Act. The
relevant portion of s. 49(1) of the Act runs thus:
"A proprietor who loses under a transfer
his right to occupy his sir land as a proprietor, shall, at the date of such
loss, become an occupancy tenant of such sir land except in the following
cases, (a) when a transfer of such sir land is made (1) I.L.R. 25 All. 407,415
(P.C.) (2) 25 Cal. 58S F.B.
(3) 42 Cal. 56 (P.C.) 656 by him expressly
agreeing to transfer his right to cultivate such sir land........" What
this provision no doubt requires is an express agreement between the transferor
and the transferee concerning the transfer of the cultivating rights in sir
land. We have already quoted the Precise language used in the document
describing the interest which has been transferred under the sale deed. The
recital shows that the executant of the sale deed not only transferred sir and
khudkast lands, cultivated and uncultivated lands, but transferred these
properties along with "all rights and privileges". If the intention
was not to transfer the cultivating rights in sir lands the concluding words
were not necessary. Each interest which has been specified in the recital is
governed by the concluding words ,all the rights and privileged contained in
that recital. In the absence of these words what would have passed under the
sale deed, in so far as the sir land is concerned, would have been only the
proprietary interest in that land. The question is, what is the effect of the
addition of those words ? According to Mr. Sinha they only emphasise the fact
that the entire proprietary in the sir land is transferred. If we accept the
interpretation then those words would be rendered otiose. That would not be the
right way of interpreting a formal document. To look at it in another way,
where a person transfers sir lands together with "all rights and
privileges" therein he transfers everything that he has in that land.
which Must necessarily include the cultivating right. It would follow from this
that where there is a transfer of this kind no kind of interest in sir land is
left in that person thereafter. Mr. Sinha further said that when the statute
requires that cultivating rights in sir land must be expressly transferred it
makes it obligatory on the parties to say clearly in the documents that
cultivating rights in the sir land have also been transferred. We see no reason
for placing 657 such an interpretation on the provisions of cl. (a) of s. 49(1)
of the C. P. Tenancy Act. When it says that the transfer of cultivating rights
in sir land has to be made expressly all that it means is that a transfer by
implication will not be enough. Finally Mr. Sinha's point is that the words
"all the rights and privileges" in the recital do not govern the
interests specified in the clause just preceding these words but they govern
following words "sixteen anna in muza Gondkhami and twelve anna in mauza
Amaldihi to Seth Kaluram etc...." Apart from such a construction rendering
the expression meaningless it would be ungrammatical to read the expression as
applying to "sixteen anna in mauza Gondkhami and twelve anna in mauza
Amaldihi etc." Therefore, there is no substance in the appeal and
accordingly we dismiss it with costs.