Report No. 83
6.16. Bombay case.-
In this, context we have taken note of the following observations made in a Bombay case1 a few years ago:-
"In my opinion earlier decisions of this Court establish clearly that the Court has jurisdiction in a case of this sort to make the order asked for. That jurisdiction was established definitely by a decision of a Full Bench in 25 Born 3532 in which it was held that under its general jurisdiction, and apart from the Guardians and Wards Act, the High Court has power to appoint a guardian of the property of a minor who is a member of a joint Hindu family and where the minor's property is an undivided share in the of the Hindu Minority and Guardianship Act, 1956 family property.
The applicant in that case also sought sanction of the Court for a sale of the family property in which the minor was interested and that sanction was given. That decision confirmed a practice which had been adopted in previous cases: 16 Born 6343 and 19 Bom 964 and such practice has since been followed in this Court and by the Calcutta High Court in 50 Cal 1415 and 59 Cal 570.6
However, in the year 1932, Kania, J. in 34 Born CP 11557 stated his view that although the Court had jurisdiction in a case of this sort to make the order, the Court ought not to exercise that jurisdiction except in very special circumstances. The learned Judge pointed out correctly that the manager of a joint Hindu family has power to sell or mortgage for legal necessity or for the benefit of the estate, and that the burden is upon the purchaser or mortgagee to prove that the sale or mortgage fulfils those conditions and the learned Judge took the view that the purchaser or mortgagee had no right to cast that obligation on the Court.
I do not find myself able to agree with that reasoning. The attitude of a purchaser or a mortgagee is that unless he can get a good title, he is not going to enter into a contract of purchase or mortgagee. He does not seek to cast any burden upon the Court; he merely says that he is not going on with the transaction unless he gets a good title. Now, it is very difficult in many cases for a purchaser or a mortgagee to satisfy himself as to the existence of legal necessity, or benefit of the estate.
It is very difficult for him to check the truth of the story told to him which is alleged to give rise to such necessity or benefit, and not only has he to do that, but he has to preserve evidence which will be available when the transaction may be attacked in years to come by a minor son of the manager. Experience in appeals from the mofussil has satisfied me that this burden which is cast on purchasers and mortgagees is a very heavy and often an unreasonable one.
A sale or mortgage is often impeached some twenty years after the date of the transaction, and it is set aside because the purchaser or mortgagee, or those claiming through him, cannot, at that distance of time, when material witnesses are no longer available, discharge the burden of satisfying the Court of the existence of legal necessity or benefit to the estate.
I am not at all surprised, therefore, that legal practitioners in Bombay decline to advise their clients to enter into a transaction with the manager of a joint Hindu family unless they get an order of the Court, binding minor members, and it seems to me that as the Court has jurisdiction to make an order sanctioning the transaction, it ought in a proper case to do so.
Whether a similar power ought not to be vested in mofussil courts is a matter which might well engage the attention of the legislature.8 The petition in this case suggests that the money can be obtained on mortgage on much better terms if an order of the Court is obtained, than would be the case if an order is not obtained. Therefore the making of the order may well be for the benefit of the minors, and if the requisite facts are proved, in my opinion, the Judge should not hesitate to make the order.
But undoubtedly a Judge has to exercise great care in seeing that the case is a proper .one. As Kania, J. points out, the evidence of the manager himself is generally interested, and it may not always be easy to check; but if the Court is not satisfied that the transaction is really for the benefit of the minor, it ought to refuse its assent."
1. Mahadeo Krishan Rupji (in re:), AIR 1937 Bom 98 (99) (per Beaumont C.J.).
2. Munilal Hurgavan (in re:), 1901 ILR 25 Bom 353: 3 Bom LR 411 (FB).
3. Jairam Luxmon, 1892 ILR 16 Born 634.
4. Jaguannath Ramji (in re:), 1895 ILR 19 Born 96.
5. Hari Narain Das (in re:), AIR 1923 Cal 409: ILR 50 Cal 141.
6. Bijaykumar Singh Buffer (in re:), AIR 1932 Cal 502: ILR 59 Cal 570.
7. Dattatraya Govind (in re:), AIR 1932 Born 537: ILR 56 Bom 519.
8. Note, The Suggestion for Law Reform.