Murarka Properties (P) Ltd. & ANR
Vs. Beharilal Murarka & Ors  INSC 224 (30 November 1977)
CITATION: 1978 AIR 300 1978 SCR (2) 261 1978
SCC (1) 109
Hindu Law--Common ancestor left behind vast
properties--Sons and other major coparceners conveyed their shares of property
to a Company--Conveyances whether indicate disruption of joint
family--Conveyances if for family benefit--Validity of.
The plaintiffs and defendants were the
descendants of a common ancestor who left behind vast movable and immovable
properties and several business assets. On 9th December, 1932, each of the
eight sons of the common ancestor executed a document conveying his share of
property to the appellant Company stating that he was executing the document as
Karta of the joint family consisting of himself and his sons. The suit by the
plaintiffs (who were the son and wife of one of the sons) for setting aside all
conveyances and transfers and for a declaration that they were entitled to
separate properties and funds was decreed by the trial Court.
The High Court dismissed the appeal holding
that the family consisting of the common ancestor and his sons was a joint
family until his death and thereafter his sons and grandsons continued to be
joint until the institution of tile suit.
It rejected the plea that even if the family
was joint, the transfers were for better management of the immovable property
and so would bind the joint family members.
In appeal to this Court it was contended that
the original joint family became divided into eight different families on 9th
December, 1932 and that even assuming that there was no disruption of the joint
family, since the impugned alienations were as a result of the unanimous decision
of all the sons, they were valid because they were for the benefit of the
Allowing the appeal,
HELD : The family became divided in status
sometime before 1932. In any event the division' in status was effected in
1932. Even if there was a joint family in existence, since the transactions
were for the benefit of the family, the other coparceners cannot challenge its
validity. [269A-B] (a)The effect of the documents is that there were eight
different joint families consisting of each of the sons and his-sons and that
the properties, which were owned by several sons, were transferred to a company
consisting of themselves alone. Even if the recitals in the document do not
prove separation of status before the date of the document, they make it clear
that the eight sons 'who were acting as Kart as of their sons and grandsons
were transferring the properties to a company consisting of themselves alone.
Though it may not be in the nature of a family settlement, this transaction had
the effect of bringing about a separation in status and the members entered
into the transaction as co-tenants. [265F-H] (b)It is well-established that the
power of a manager of joint Hindu family to alienate joint family property is
analogous to that of a manager for an infant heir. The manager of a joint Hindu
family has power to alienate for value joint family property, so as to bind the
interest of both adult and minor con arceners in the property, provided that
the alienation is made for legal necessity or for the benefit of estate.
[266E-F] Hunooman Persaud v. Musummat Baboose  6 Moo. I.A. 393 referred
to (c) The transactions being for the benefit of the family, they would be
binding on all the coparceners. The transactions while were entered into by all
the 262 eight sons and adult coparceners of the eight branches were clearly the
result of joint deliberations and unanimous decisions of all the adult members.
[267D-E] (d)The question whether an alienation is for the benefit of the family
Would depend upon the facts of each case. One view is that unless it is of a
defensive nature calculated to protect the estate from some threatened danger
or destination, it cannot be said to be for the benefit of the estate, the
other is that it is sufficient if it is such as a prudent owner, or trustee
would have carried out with the knowledge available to him at the time of the
[266F-G] In the instant case, the purpose of
the transactions wag to protect the properties for the benefit of the members
of the family, and to prevent any member of the family from selling away any
share of the property by transfer or mortgage.
There was, therefore, no dissipation of the
property. [267A- B] Bal Mukand v. Kamla Vati and Others,  6 S.C.R. 321,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1350 of 1967.
From the Judgment and order dated 18-5-1967
of the Calcutta High Court in Appeal No. 14 of 1957.
L.N. Sinha, J. B. Dadachanji and K. J. John
and P. N.
Chaterjee for the appellant.
Shankar Ghosh and B. Dutta for respondents
P.K. Mukherjee for Respondent No. 5.
P.C. Bhartari for Respondents, 6, 8, 9, 16,
17, 21-23, 35-37, 39-41 and 47.
S. M. Jain and S. K. Jain for respondents 20
Harbans Singh for respondent No. 19(a).
P. R. Mirdul, H. K. Puri and M. C. Dhingra
for respondents 12 (a & b).
D. N. Mukherjee for respondents 13 and 14.
B. Parthasarthi for respondents 25-26.
Rathin Das for respondents 10, 31 to 33.
The Judgment of the Court was delivered by
KAILASAM, J.-This appeal is by certificate granted by the Calcutta High Court
against its judgment dated 18th May, 1967 in appeal No. 14 of 1957, upholding
and affirming the judgment and decree dated 13-9-1956 in suit No. 1607 of 1938.
are defendants 12 and 13 in the suit. The suit was filed by Beharilal and his
mother Ginni praying amongst other reliefs for a declaration that the
respondent is entitled to 1/8th share in the assets and properties belonging to
the joint family, for setting aside all conveyances and transfers and for a declaration
that Plaintiff is entitled to separate properties and funds of Laloolal
Murarka, the father of the plaintiff and husband of second plaintiff. After
written statements were filed, the plaint was amended on 6-7-1939 whereby an
alternative claim for 1/8th share of the Company's property was made if it was
held that there was no joint family but only a company.
263 One Ram Niranjands Muraraka died on 29th
October 1930 leaving his widow Janki Devi, the 10th defendant and 8 sons-
Hiralal Murarka defendant No. 1. Nandlal Murarka since deceased, Radhelal
Murarka defendant No. 3, Misri Lal Murarka defendant No. 5, Chinni Lal Murarka
defendant No. 7, Chotelal Murarka defendant No. 8, Kisedlal Murarka defendant
No. 9, and vast movable and immovable, properties and several business assets
situate within and outside the jurisdiction of the Calcutta High Court. Motilal
Murarka died without leaving any issue. Amongst 8 sons, in this appeal, we are
concerned with the families of 3 sons.
Laloolal's wife Ginni is the second plaintiff
and their son is Beharilal, the first plaintiff. Radheylal's son is Makhanlal
and Makhanlal's son is Murarilal respondent 12 in this appeal. Murarilal's
widow is Bimla and their son is Rahul. Binla and Rahul were brought on record
as legal representatives of Murarilal after his death pending appeal in this
court and they are contesting the present appeal.
Chinnilal's son is Ratanlal and he is
respondent 20 who Is also contesting this appeal. The other sons and their des-
cedants contested the plaintiff's plea that they were members of a joint
family. Their case was that family was divided and the impugned alienations in
favour of D. 12 and D. 13 were valid. They have stuck to this plea throughout
and as they are in fact supporting the appellants, it is unnecessary to
consider their case separately. The suit was decreed and an appeal was
preferred by defendants 12 and 13.
Pending appeal the plaintiffs changed their
front and started supporting the present appellants, defendants 12 and 13,
stating that the impugned alienations were binding on them. But Bimla and Rahul
who were brought on record pending the appeal in this Court are questioning the
validity of the impugned transaction though Murarilal opposed the plaintiffs'
claim during the suit and the appeal. Though Chinnilal in his written statement
supported the case of the present appellants that the impugned transactions
were valid, Chinnilal's son Ratanlal, who attained majority in 1943, challenged
the validity of the impugned transactions 3 years after attaining majority. The
position therefore is that the plaintiffs who belonged to Laloolal's group (the
widow and son of one of the sons of Laloolal) who were the only persons that
questioned the alienations at the time of the suit later on supported the case
of the present appellants, while the descendants of two sons Radheylal and
Chinnilal though they originally affirmed the impugned transaction, are
questioning the validity of transactions and contesting the appeal before us.
The present litigation is about 39 years old.
The suit was filed on 22-8-1938. The decree was passed by the trial court on
13-9-1956 and the appellate decree is dated 18-5- 1967. It has now come up
before us after 10 years since the passing of the decree by the appellate court
The trial went on for 63 days.
The main contention that was raised in the
appellate court by Defendant 12 and Defendant 13, the present appellants, was
that the immovable properties which stood in the name of Ramniranjandas were
his self-acquired properties and they were brought into the assets of company
of his 8 sons having defined shares in the said properties.
264 The properties were conveyed to the
The appellate court field that the family of
Ramniranjandas Murarka consisted of himself and his sons and was a joint Hindu
family governed by Mitakashara law until the death of Ramniranjandas and
thereafter the families of his sons and their sons and grandsons continued to
be a joint Hindu family until the institution of the suit. They also rejected
the plea that even if the family was joint the transfers of the impugned
property were for better management of the immovable properties and as such for
legal necessity and would thus bind the members of the joint family. It further
held that there is no evidence that immovable properties were brought into the
joint stock of the firm by Ramniranjandas and that on the assumption that the
said properties were separate and self-acquired properties of Ramniranjandas,
the said properties were inherited by his 8 sons from their father and upon the
father's death they were ancestral properties in their hands and the respective
male descendants of the said 8 sons of Ramniranjandas also acquired coparcenary
interest in the said immovable properties. In this view the appellate court
dismissed the appeal preferred by defendants 12 and 13.
In this appeal before us Mr. Lal Narain
Sinha, the learned counsel for appellants, defendants 12 and 13, submitted that
without going into the correctness of the finding of lower court that
Ramniranjandas and his sons were members of joint Hindu family, he would
confine himself to a limited submission that the impugned transactions showed
that there was a partition earlier and in any event the family became divided
in status 'on 9-12-1932, and a disruption of the original joint family into 8
different families took place.
Secondly, he submitted that even if this
contention is not accepted, and it is. found that 8 sons were members of a
joint family, as the impugned alienations were as a result of joint
deliberations and unanimous decision of all of the eight sons and other adult
members of the family, it must be presumed to be a prudent transaction as the
entire family properties were preserved for 8 sons though it was by
transferring them to a company, and that the alienations were for the benefit
of the family and therefore for family necessity. Apart from the two main
contentions, the learned counsel also submitted that even if the transactions
were not binding on the members of the joint family as they are only voidable
they can be set aside only at the instance of a coparcener to the extent of his
interest in the joint family and as the only branch that questioned the
validity of alienation has left the field, the present respondents who
originally supported the alienations are not entitled to any- relief and in any
event their claim, if any, is barred by limitation.
The transction that are impugned are
conveyances in favour of the appellants ourarka Properties Limited and
Buckingham Court (P) Ltd. by various conveyances, one of which is Ex. L. As the
plea of Shri Lal Narain Sinha, the learned counsel for the appellants, is that
Ex. L itself proves that at the date of the document there was no joint family
and that in any event the document itself effected a separation, it is
necessary to refer to the relevant recitals in the document. The 265 document
prefaces : "This indenture of conveyance dated 9th December, 1932 between
Hiralal Murarka eldest son of Ramniranjandas Murarka for himself and as the
father and natural guardian of his infant son Kunj Lal Murarka and as the Karta
of the joint family consisting of himself and his son......... The same
description is adopted in the cases of all sons, for instance in the case of
second son the recital is Nandlal Murarka son of the said Ramniranjandas
Murarka deceased for self and as the father and natural guardian of his infant
sons Shankerlal Murarka and Purshottamlal Murarka and as the Karta of joint
family consisting of himself and his sons. It will be seen that all the 8 sons
have described themselves each one stating that he is acting on behalf of
himself and his sons. The recitals show that there were 8 different joint
families consisting of each of the sons with his sons etc. The plea of the
learned counsel that a reading of the document would show that the brothers
themselves affirmed that there were 8 joint families is sound. The reply to
this contention on behalf of the contesting respondents as put forward by Mr.
Mridul, the learned counsel, is that the plea that there was disruption of
joint family in 1932 is a new point and should not be allowed to be raised.
This plea cannot be accepted. The appellants denied the existence of a joint family
consisting of Ramniranjandas and his sons and grandsons or that the joint
family continued after the death of Ramniranjandas.
It was specifically mentioned in para 2 of
the written statement that there was disruption of coparcenary prior to 1926
and Ramniranjandas and his 8 sons carried on the company after they became
separate and as such there was no joint family as alleged in the plaint. This
plea is very specific that there was disruption of the joint family prior to
1926. The point at which the disruption took is not stated clearly but the plea
of the appellants that it was prior to 1926 would enable him to rely on the
document of 1932 to establish that there was a separation some time before
1932. In the Memorandum of appeal dated 24-1-1967 by the appellants in ground
No. 26 it was clearly alleged that the learned Judge was wrong in holding that
Ramniranjandas and other sons were members of joint family. The contention' of
Shri Mridul, the learned counsel for respondents, that this plea is new and should
not be allowed cannot therefore be sustained. The second contention of Shri Lal
Narain Sinha, the learned counsel for the appellants, relying on the recitals
in Ex. L, is that in any event the' document itself effected a separation in
status at least from the date of the document. The effect of the documents L,
M, N, 0 etc. is that the properties which were owned by several sons were
transferred to a company consisting of themselves alone. Even if the recitals
in the document do not prove separation of status before the date of the
document they make it clear that 8 sons who were acting as Kartas of their sons
and grandsons were transferring the properties to a company consisting of
themselves alone. It is to be noted that the entire family properties were
transferred to the company consisting of 8 brothers and their descendants
alone. The transaction will have the effect of transferring the properties from
the families to the company though it may not be in the nature of a family
settlement. Even if the joint family of Ram- niranjandas Murarka was in
existence before 9-12-1932 by this transaction had the effect of bringing about
a separation in status and the members entered into the transactions as
co-tenants. We are satisfied 266 was a joint family in existence before the
date of the document, the recitals in the documents would have the effect of
disrupting the joint family.
Mr. Lal Narain Sinha submitted that even if
it is held that there was a joint family is existence on the date of the
impugned documents, the transactions are for the benefit of the family and as
such binding on all the members. The facts disclose that the transactions were
entered into not only by all the eight sons but also by all the adult
coparceners of the eight branches. It cannot be denied that the transections
were the result of joint deliberations and unanimous decision of all the adult
members. The evidence of the Solicitor who prepared the documents is that it
was for necessity and with the object of preserving the property, the entire
properties of the family were transferred to the company consisting of eight
sons and their families alone. Eight branches secured equal number of shares in
the transferee company. On the facts the question arises whether the
transaction could be held to be prudent and binding on the members of
coparcenary. Bearing in mind the fact that all the adult members unanimously
joined in the transaction after deliberations by all of them and that the
entire properties were transferred in equal shares to the company of which the
8 sons were only shareholders, we will proceed to examine the validity of
Mulla in his Principles of Hindu Law at p.
300 (14th Ed.) states the law thus : "The power of the manager of a joint
Hindu family to alienate joint family property is analogous to that of a
manager for an infant heir as defined by the Judicial Committee in Hunooman
persaud v. Musummat Baboose(1). The manager of a joint Hindu family has power
to alienate for value joint family property, so as to bind the interest of both
adult and minor coparceners in the property, provided that the alienation is
made for legal necessity, or for the benefit of estate. As to what is benefit
of these state there was conflict of opinion. One view was that a transaction
cannot be said to be for the benefit of an estate unless it is of defensive
character calculated to protect the estate from some threatened danger or
destruction. Another view was that for a transaction to be for the benefit of
the estate it is sufficient if it is such as a prduent owner, or rather a
trustee, would have carried out with the knowledge that was available to him at
the time of transaction. The question whether it is for the benefit of family
would depend upon the facts of the case.
On the facts of this case there could be no
difficulty in coming to the conclusion that the transaction was for the benefit
of the estate. The evidence of Mitra, the Solicitor who was instrumental in
bringing about the transactions, is that the purpose or the reason for these
transactions is for protecting the properties for the members of the family and
that the idea was that the properties may not be partitioned and to prevent any
member of the Murarka family from selling away any share of the (1) (1856) 6 Moo.
267 property by transfer or mortgage. The
witness was not cross-examined. It is clear therefore that by the transaction
there was no dissipation of the property. The transaction was only for the
purpose of preserving the properties for all the members after due
deliberations by all the adult members. In Bal Mukand v. Kamla Vati and
Others("), the Court held that any transaction to be regarded as one which
is of benefit to the family need not necessarily be only of a defensive
character but what transactions would be for the benefit of the family would
depend on the facts and circumstances of each case. The Court must be satisfied
on the material before it, that it was in fact such as conferred or was
necessarily expected to confer benefit on the family at the time it was entered
into. The property in question in the case referred to consisted of a
fractional share belonging to the family in a large plot of land. Earnest money
was paid to Karta, but the Karta did not execute the sale deed. The appellant
instituted a suit for specific performance. The, other members who were
brothers of the Karta and who were adults at the time of the contract were also
impleaded in the suit as defendants. The suit was resisted on the ground that
there was no legal necessity and that the contract for sale was not for the
benefit of the family. On the facts, the Court held that to sell such property
and that too on advantageous terms and to invest the sale proceeds in a
profitable way could certainly be regarded as beneficial to the family. These
observations apply with equal force to the facts of the present case. We have
no, hesitation in holding that the transaction was for the benefit of the
family and as such even if it was found that there was a joint family, the
transaction would be binding on all of the coparceners. In this view, it is
unnecessary for us to consider whether the transaction could be regarded as a
family arrangement as was contended by Mr. Lal Narain Sinha.
The transaction may not strictly be a family
arrangement as there is a transfer of properties from the family to the company
in which all the 8 brothers were allotted equal shares.
We will now refer to certain documents and
conduct of the parties relied on by the learned counsel for the contesting
respondents in support of his contention that the transactions entered into
under Ex. L were not considered as having effected division in status. After
the date of the impugned document in 1932, the parties entered into two
transactions one on 6-10-1935 and another on 19-10-1935. By the document dated
6-10-1935 Ex. 000040. The eight brothers put on record that their mother gifted
and distributed all the ornaments, jewellery and silver wares to and amongst
all the eight brothers and nothing now remained undistributed and the said
property so gifted and distributed remained the property of each individual
concerned. By the document Ex. 000039 dated 10th October, 1935 the eight
brothers put on record that they have divided and distributed equally amongst
themselves all the household furniture, fittings, electrical equipments musical
instruments, beddings, photo cameras, cutleries, radios and fieldglasses which
were with them and their sons in Calcutta and it remained only the exclusive
property of each individual and was in their possession. It was submitted by
Mr. Mridul, counsel for the respondents, (1)  (6) S. C. R. 321.
268 that these documents would indicate that
the separation was effected for the first time in October, 1935 or at any rate
the immovable properties were divided about the time when these transactions
were entered into. It is a common knowledge that usually a division of the
movables takes place after immovable properties are divided. These two
documents instead of supporting the plea of the respondents probabalise the
case of the appellants that the separation took place before the date of these
documents. The learned counsel for the respondent relied on two affidavits
filed by the members of the family to the effect that the joint family
continued. In Ex. 1 dated 9th December, 1936 Mohanlal Murarka stated in a
petition for bringing on record the legal representatives for executing a
decree obtained by Ramniranjandas Murarka that Ramniranjandas Murarka (the
deponent's grandfather) during his life'-time and at the time of his death
along with the applicants named in the petition constituted a Hindu joint
family governed by the Mitakshara School of Hindu Law. This affidavit though
filed before the institution of the suit cannot be taken as proving the
existence of the joint family after the death of Ramniranjandas Murarka. All
that it states is that Ramniranjandas Murarka during his life-time and at the
time of his death along with the applicants was member of joint family. The
affidavit does not throw any light as to whether the joint status continued
after Ramniranjandas died. In Ex. UU a verified petition filed for bringing on
record legal representatives of Ramniranjandas Murarka for executing a decree
stated that the petitioners were legal representatives as Ramniranjandas
Murarka was a Hindu governed by Mitksbara School of Law. It is averred that the
joint family continued after the death of Ramniranjandas Murarka. These two
affidavits do not advance the case of the respondents any further. Reference
was made to evidence of Radeylal and that of Ganariwale who spoke to the
existence of the joint family. In the face of the documentary evidence on
record, the oral evidence is not entitled to any weight.
Though the conclusions arrived at by us would
dispose of the appeal, we would shortly refer to the submission of Shri Lal
Narain Sinha that the present respondents have no status to oppose this appeal,
the plaintiff having retired from the contest. While this plea may be sound as
regards Bimla and Rahul son of Murarilal the case of Ratanlal stands on a
different footing. Radheylal son of Ramniranjandas and his son Makhanlal father
of R. 12 contended that the impugned transactions were valid. The legal
representatives of Murarilal, Bimla and Rahul who came on the record in the
appeal before the Supreme Court cannot be allowed to put a different care from
that of Murarilal. This objection is not available against Ratanlal, respondent
20. In 1946, three years after the date of his attaining majority, he filed the
statement challenging the validity of impugned transaction. It was submitted on
behalf of the appellants that Ratanlal cannot be permitted to challenge the
validity of the transactions as the plea was taken 3 years after his attaining majority.
It was also contended that the plain- tiff representing one of the 8 brothers
alone prayed for allotment of 1/8th share and the challenge as regards
alienation of share of others cannot be sustained. We do not think we are
called upon to decide 269 this question, but we may observe that one of the
reliefs asked for is for setting aside the alienation and therefore the failure
of one of the, branches to question the validity of the alienation would not
bar the right of the other branch for the said relief.
On a consideration of the entire evidence
placed before us and the contentions of the parties, we hold that the family of
Ramniranjandas Murarka became divided in status before 1932 and that in any
even a division in status was effected from the date of the document Ex. L etc.
in 1932, and that even if there was a joint family in existence as the
transactions were for the benefit of the family, the other coparceners cannot
challenge its validity. In the result the appeal is allowed and the decree of
the trial court is set aside so far as the appellants, Defendant 12 and
Defendant 13, are concerned. Costs will be paid by the contesting respondents
who are legal representatives of R- 12, Bimla and Rahul, and R-20 and his three
sons R-42, R-43, R-44.