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CASE NO.:

Appeal (civil) 1584 of 2004

PETITIONER:

Subhodkumar & Ors

RESPONDENT:

Bhagwant Namdeorao Mehetre & Ors

DATE OF JUDGMENT: 25/01/2007

BENCH:

Dr. Arijit Pasayat & S. H. Kapadia

JUDGMENT:

J U D G M E N T

KAPADIA, J.

The short question which arises for consideration in

this civil appeal is : whether on the facts and

circumstances of the case the lower appellate court was

right in holding that the issue of legal necessity even if

decided in favour of defendant nos.1 to 5 (appellants

herein) was not a "fact in issue" and was therefore not a

relevant fact in a suit for possession.

The facts giving rise to this civil appeal are as follows.

Land admeasuring 12 acres 16 gunthas in Survey

No.218 situated within Chikhli Municipal Limits, District

Buldhana, was owned by Nimbaji and his family members.

It was an ancestral property. Nimbaji had five sons. One of

his sons was Panditrao (defendant no.6). Nimbaji and his

four sons excluding Panditrao agreed to sell 9 acres 16

gunthas out of the above ancestral lands to the plaintiffs

(respondent nos.1 to 4 herein). The agreement was reduced

to writing. It was registered on 18.3.75. It was followed by

a conveyance dated 31.3.75. Panditrao was neither a party

to the writing agreement nor to the sale deed. He did not

consent. He protested against the transaction. Panditrao

had entered into an agreement with defendant nos.1 to 5

on 5.11.74. It was an unregistered agreement. It was

followed by a conveyance executed by Panditrao in favour of

defendant nos.1 to 5 on 29.3.75. The transaction between

Panditrao and defendant nos.1 to 5 was confined to an area

admeasuring 2 acres and 2 gunthas of land out of 9 acres

and 16 gunthas purchased by the plaintiffs. In the suit,

defendant nos.1 to 5 claimed southern portion to be in

their possession.

Plaintiffs contended that the agreement executed by

Panditrao in favour of defendant nos.1 to 5 dated 5.11.74

was a fabricated antedated document, engineered to defeat

the plaintiffs' agreement with Nimbaji (karta) dated 18.3.75

under which plaintiffs were put in possession of the land

admeasuring 9 acres and 16 gunthas on 18.3.75 and,

therefore, though the defendants' conveyance dated 29.3.75

is before the conveyance in favour of the plaintiffs dated

31.3.75 the plaintiffs were entitled to possession of the

whole land admeasuring 9 acres and 16 gunthas.

Accordingly suit for possession was filed by the plaintiffs on

the basis of the conveyance deed dated 31.3.75. The

plaintiffs, however, did not seek formal cancellation of the

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conveyance executed by Panditrao in favour of defendant

nos.1 to 5 dated 29.3.75.

On the other hand, defendant nos.1 to 5 contended

that their agreement dated 5.11.74 was genuine and first in

point of time; that they had valid title to the land

admeasuring 2 acres and 2 gunthas and that they were not

aware of the agreement executed by Nimbaji in favour of

the plaintiffs dated 18.3.75. The said defendant nos.1 to 5

further contended that the sale dated 31.3.75 by Nimbaji

and the four coparceners was not for legal necessity and

was, therefore, not binding on the sons of Nimbaji including

Panditrao and consequently the conveyance executed by

Panditrao in favour of defendant nos.1 to 5 dated 29.3.75

was good in law as Panditrao was a coparcener who had

transferred his undivided share to defendant nos.1 to 5 in

accordance with law.

Considering all the evidence on record and after

hearing both sides, the trial court held that the agreement

executed by Panditrao in favour of defendant nos.1 to 5 on

5.11.74 was fabricated and antedated; that there was no

partition between Panditrao and his brothers and Nimbaji

as alleged by defendant nos.1 to 5; and that the transaction

between Nimbaji and the plaintiffs was for legal necessity.

Consequently, the trial court decreed the suit in favour of

the plaintiffs upholding conveyance dated 31.3.75 executed

by Nimbaji in favour of the plaintiffs.

Aggrieved by the aforestated decision, defendant nos.1

to 5 went in appeal to the Additional District Judge,

Buldhana, vide Regular Civil Appeal No.82 of 1986.

By judgment and order dated 12.3.1990 the lower

appellate court came to the conclusion, inter alia, that the

transaction between Nimbaji and the plaintiffs was not for

legal necessity; that in a suit for possession based on the

conveyance executed by the karta and four coparceners the

issue of legal necessity was redundant as Nimbaji and his

four sons had consented to the transfer of their undivided

share in the lands admeasuring 9 acres and 16 gunthas in

favour of the plaintiffs; and that the issue of legal necessity

was irrelevant as it did not create any right in favour of

defendant nos.1 to 5. It was further held that agreement

dated 5.11.74 executed by Panditrao in favour of defendant

nos.1 to 5 was antedated and that defendant nos.1 to 5

were not the bona fide purchasers for value without notice.

The lower appellate court further held that in any event

since the conveyance was executed by Nimbaji with his four

sons in favour of the plaintiffs pursuant to which the

plaintiffs were put in possession of the land admeasuring 9

acres 16 gunthas the issue of legal necessity became

irrelevant. The lower appellate court also came to the

conclusion that the plaintiffs were forcibly dispossessed

and, therefore, they were entitled to possession even if they

failed to prove their title.

Aggrieved by the aforestated judgment, defendant

nos.1 to 5 carried the matter in second appeal to the High

Court.

By impugned judgment dated 24.3.03, the High Court

came to the conclusion that the transaction in favour of the

plaintiffs executed by Nimbaji and his four sons was on

account of legal necessity; that the plaintiffs had

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established their need by way of marriage and educational

expenses; that the plaintiffs had proved the legal necessity;

that the law requires that the need should be established

and it was not necessary to consider whether the

consideration received by Nimbaji and his four sons

exceeded their need and accordingly it was held that the

trial court was right in coming to the conclusion that the

conveyance executed by Nimbaji in favour of the plaintiffs

dated 31.3.75, was for legal necessity. In the result, all the

three courts decreed the suit in favour of the plaintiffs for

different reasons.

Mr. V.A. Mohta, learned senior counsel appearing on

behalf of defendant nos.1 to 5 (appellants herein),

submitted that the lower appellate court had rightly held

that there was no legal necessity for Nimbaji and his four

sons to execute the conveyance in favour of the plaintiffs on

31.3.75. It was urged that the lower appellate court was

pleased to give the above finding as a court on facts.

Learned counsel urged that on this finding alone the lower

appellate court should have dismissed the suit of the

plaintiffs for possession and mesne profits. Learned

counsel submitted that conveyance dated 31.3.75 was

executed by the Karta and his four sons in favour of the

plaintiffs without consent of Panditrao and without legal

necessity. Learned counsel submitted that Panditrao was

also coparcener and entitled to a share in the property who

neither consented nor signed the conveyance in favour of

the plaintiffs and who on the contrary had entered into a

conveyance on 29.3.75 in favour of defendant nos.1 to 5 in

respect of his undivided share and since Panditrao had sold

2 acres and 2 gunthas of land out of 9 acres and 16

gunthas earlier in point of time Nimbaji could not have sold

the same land twice over.

We do not find any merit in the above civil appeal.

Even assuming for the sake of argument that the

conveyance dated 31.3.75 executed by Nimbaji and his four

sons was not for legal necessity even then the defendants'

position cannot improve. Nimbaji was the Karta of the

Hindu Undivided Family. Lands admeasuring 9 acres and

16 gunthas was an ancestral property of Nimbaji. Nimbaji

had five sons. Nimbaji and his four sons agreed to sell

their ancestral lands to the plaintiffs. Agreement was

reduced into writing. Agreement was registered.

Agreement was followed by a conveyance. Conveyance was

followed by possession given to the plaintiffs who claim to

be forcibly dispossessed. Defendant nos.1 to 5 failed to

institute proceedings for general partition. The primary

step of defendant nos.1 to 5 was to sue for partition. They

failed to take any steps in this regard. No consequential

relief was claimed by them for partition and for

demarcation for their share. The plaintiffs had instituted

the suit for possession on the ground that they were

forcibly dispossessed by defendant nos.1 to 5. Since the

Karta of Hindu Undivided Family with his four sons had

executed the conveyance in favour of the plaintiffs, the suit

filed by the plaintiffs for possession cannot be dismissed on

the ground of lack of legal necessity. A karta has power to

alienate for value the joint family property either for

necessity or for benefit of the estate. He can alienate with

the consent of all the coparceners of the family. When he

alienates for legal necessity he alienates an interest which

is larger than his undivided interest. When the Karta,

however, conveys by way of imprudent transaction, the

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alienation is voidable to the extent of the undivided share of

the non-consenting coparcener which in the present case

was Panditrao. In the present case, Panditrao did not sue

for partition. He did not ask for demarcation of his share.

Defendant nos.1 to 5 who claim through Panditrao seek

possession of a specific portion of the land to be

demarcated without filing a suit for partition by metes and

bounds. The conveyance by Nimbaji and his four sons is

not disputed by the said coparceners. The conveyance

executed by Nimbaji and others is true which is different

from saying that it is an imprudent transaction. Once it is

found that the conveyance executed by Nimbaji and others

is true under which the plaintiffs were put in possession

and later on disposed, in the suit for possession, in such an

event, the issue of legal necessity becomes irrelevant. A

mere declaration that transaction was imprudent or was

not for legal necessity in such a suit cannot give any right

to defendant nos.1 to 5 to get the demarcated portion of 2

acres 2 gunthas of land on the southern side without the

said defendants taking appropriate proceedings in

accordance with law.

In the case of Sunil Kumar and another v. Ram

Parkash and others ___ AIR 1988 SC 576, this Court has

held that the right to obstruct alienation is different from

the right to challenge the alienation. The coparcener has a

right to challenge the alienation. However, he has no right

to interfere in the act of management of the joint family

affairs. In this connection, the following observations in

paras 21 to 26 of this Court are relevant to be noted:

"21. In a Hindu family, the karta or manager

occupies a unique position. It is not as if

anybody could become manager of a joint

Hindu family. "As a general rule, the father of a

family, if alive, and in his absence the senior

member of the family, is alone entitled to

manage the joint family property." The

manager occupies a position superior to other

members. He has greater rights and duties. He

must look after the family interest. He is

entitled to possession of the entire joint estate.

He is also entitled to manage the family

properties. In other words, the actual

possession and management of the joint family

property must vest in him. He may consult the

members of the family and if necessary take

their consent to his action but he is not

answerable to every one of them.

22. The legal position of karta or manager

has been succinctly summarised in the

MAYNE'S Hindu Law (12th Ed. Para 318) thus:

318. Manager's Legal position \026 "The

position of a karta or manager is sui generis:

the relation between him and the other

members of the family is not that of principal

and agent, or of partners, it is more like that of

a trustee and cestui que trust. But the

fiduciary relationship does not involve all the

duties which are imposed upon trustees.

23. The managing member or karta has not

only the power to manage but also power to

alienate joint family property. The alienation

may be either for family necessity or for the

benefit of the estate. Such alienation would

bind the interests of all the undivided

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members of the family whether they are adults

or minors. The oft quoted decision in this

aspect, is that of the Privy Council in

Hanuman Parshad v. M.T. Babooee (1956) 6

Moo Ind. App. 393. There it was observed at p.

423: (1) "The power of the manager for an

infant heir to charge an estate not his own is,

under the Hindu law, a limited and qualified

power. It can only be exercised rightly in case

of need, or for the benefit of the estate." This

case was that of a mother, managing as

guardian for an infant heir. A father who

happens to be the manager of an undivided

Hindu family certainly has greater powers to

which I will refer a little later. Any other

manager however, is not having anything less

than those stated in the said case. Therefore, it

has been repeatedly held that the principles

laid down in that case apply equally to a father

or other coparcener who manages the joint

family estate.

Remedies against alienations:

24. Although the power of disposition of joint

family property has been conceded to the

manager of joint Hindu family for the reasons

aforesaid, the law raises no presumption as to

the validity of his transactions. His acts could

be questioned in the Court of law. The other

members of the family have a right to have the

transaction declared void, if not justified.

When an alienation is challenged as being

unjustified or illegal it would be for the alienee

to prove that there was legal necessity in fact

or that he made proper and bona fide enquiry

as to the existence of such necessity. It would

be for the alienee to prove that he did all that

was reasonable to satisfy himself as to the

existence of such necessity. If the alienation is

found to be unjustified, then it would be

declared void. Such alienations would be void

except to the extent of manager's share in

Madras, Bombay and Central Provinces. The

purchaser could get only the manager's share.

But in other provinces, the purchaser would

not get even that much. The entire alienation

would be void. [Mayne's Hindu Law 11th ed.

para 396].

25. In the light of these principles, I may now

examine the correctness of the contentions

urged in this appeal. The submissions of Mr.

H.N.Salve, as I understand, proceeded firstly

on the premise that a coparcener has as much

interest as that of karta in the coparcenary

property. Second, the right of coparcener in

respect of his share in the ancestral property

would remain unimpaired, if the alienation is

not for legal necessity or for the benefit of the

estate. When these two rights are preserved to

a coparcener, why should he not prevent the

karta from dissipating the ancestral property

by moving the Court? Why should he vainly

wait till the purchaser gets title to the

property? This appears to be the line of

reasoning adopted by the learned Counsel.

26. I do not think that these submissions are

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sound. It is true that a coparcener takes by

birth an interest in the ancestral property, but

he is not entitled to separate possession of the

coparcenary estate. His rights are not

independent of the control of the karta. It

would be for the karta to consider the actual

pressure on the joint family estate. It would be

for him to forsee the danger to be averted. And

it would be for him to examine as to how best

the joint family estate could be beneficially put

into use to subserve the interests of the family.

A coparcener cannot interfere in these acts of

management. Apart from that, a father-karta

in addition to the aforesaid powers of

alienation has also the special power to sell or

mortgage ancestral property to discharge his

antecedent debt which is not tainted with

immorality. If there is no such need or benefit,

the purchaser takes risk and the right and

interest of coparcener will remain unimpaired

in the alienated property. No doubt the law

confers a right on the coparcener to challenge

the alienation made by karta, but that right is

not inclusive of the right to obstruct alienation.

Nor the right to obstruct alienation could be

considered as incidental to the right to

challenge the alienation. These are two distinct

rights. One is the right to claim a share in the

joint family estate free from unnecessary and

unwanted encumbrance. The other is a right to

interfere with the act of management of the

joint family affairs. The coparcener cannot

claim the latter right and indeed, he is not

entitled for it. Therefore, he cannot move the

court to grant relief by injunction restraining

the karta from alienating the coparcenary

property."

In the case of Sidheshwar Mukherjee v.

Bhubneshwar Prasad Narain Singh and others ___ AIR

1953 SC 487, this Court vide paras 9 and 11 has held as

follows:

"9. It is true that under the Mitakshara law, as

it is administered in the State of Bihar, no

coparcener can alienate, even for valuable

consideration, his undivided interest in the

joint property without the consent of his

coparceners; but although a coparcener is

incompetent to alienate voluntarily his

undivided coparcenary interest, it is open to

the creditor, who has obtained a decree

against him personally, to attach and put up

to sale this undivided interest, and after

purchase to have the interest separated by a

suit for partition.

11. 'Civil Appeals Nos.54 and 55 of 1951'.

Coming now to the Money Appeals, the point

for consideration is a short one. The suits out

of which these appeals arise were instituted by

the plaintiff in the partition suit against the

first party defendants for recovery of his 4

annas share of the income or profits of the

properties specified in the schedules to the

plaints and which were included admittedly in

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his purchase, on the allegation that the

defendants first party appropriated the entire

profits to themselves and refused to give the

plaintiff his legitimate share. The High Court

has held that this claim of the plaintiff must

fail. All that he purchased at the execution

sale was the undivided interest of the

coparceners in the joint property. He did not

acquire title to any defined share in the

property & was not entitled to joint possession

from the date of his purchase. He could work

out his rights only by a suit for partition and

his right to possession would date from the

period when a specific allotment was made in

his favour. In our opinion, this is the right

view to take and Mr. Daphtary, who appeared

in support of the appeals, could not satisfy us

that in law his client was entitled to joint

possession on and from the date of purchase.

The result is that these appeals are dismissed

with costs."

In the case of Balmukand v. Kamla Wati and

others ___ AIR 1964 SC 1385, this Court has held that in

exceptional circumstances the Court will uphold the

alienation of a part of a joint family property by a Karta.

We quote hereinbelow para 7 of the said judgment in this

regard:

"7. The next case is Sital Prasad Singh v.

Ajablal Mander, I.L.R. 18 Pat. 306 : (AIR 1939

Pat. 370). That was a case in which one of the

questions which arose for consideration was

the power of a manager to alienate part of the

joint family property for the acquisition of new

property. In that case also the test applied to

the transaction entered into by a manager of a

joint Hindu family was held to be the same,

that is, whether the transaction was one into

which a prudent owner would enter in the

ordinary course of management in order to

benefit the estate. Following the view taken in

the Allahabad case the learned Judges also

held that the expression "benefit of the estate"

has a wider meaning than mere compelling

necessity and is not limited to transactions of

a purely defensive nature. In the course of his

judgment Harries C.J. observed at p. 311 (of

I.L.R. Pat.) : (at p.372 of AIR) :

"....... the karta of a joint Hindu

family being merely a manager and

not an absolute owner, the Hindu

law has, like other systems of law,

placed certain limitations upon his

power to alienate property which is

owned by the joint family. The

Hindu law givers, however, could

not have intended to impose any

such restriction on his power as

would virtually disqualify him from

doing anything to improve the

conditions of the family. The only

reasonable limitation which can be

imposed on the karta is that he

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must act with prudence, and

prudence implies caution as well as

foresight and excludes hasty,

reckless and arbitrary conduct."

After observing that the transaction entered

into by a manager should not be of a

speculative nature the learned Chief Justice

observed :

"In exceptional circumstances,

however, the court will uphold the

alienation of a part of the joint

family property by a karta for the

acquisition of new property as, for

example, where all the adult

members of the joint family with the

knowledge available to them and

possessing all the necessary

information about the means and

requirements of the family are

convinced that the proposed

purchase of the new property is for

the benefit of the estate."

(emphasis supplied)

In the present case, Nimbaji and his four sons have

conveyed, in any event, their undivided share in the land

admeasuring 9 acres 16 gunthas to the plaintiffs.

Defendant nos.1 to 5 are seeking a certain specific portion

out of the total area of 9 acres 16 gunthas to be allotted to

them coming from the share of Panditrao. However, neither

Panditrao nor their successors-in-title, namely, defendant

nos.1 to 5 (appellants herein) instituted a suit for partition.

In the circumstances, the lower appellate court was right in

holding that legal necessity in the present suit for

possession was not a "fact in issue". All the courts below

decreed the suit in favour of the plaintiffs. However, it is

not in dispute that Panditrao was the non-consenting

coparcener; that he had objected to the transaction by

Nimbaji right from inception; that in the suit plaintiffs did

not seek cancellation of the sale deed by Panditrao and,

therefore, it will be open to the appellants herein to take

appropriate proceedings in accordance with law for specific

demarcation of the undivided share of Panditrao.

Subject to what is stated above, the present civil

appeal is dismissed with no order as to costs.