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PETITIONER: RADHAKRISHNADAS

       Vs.

RESPONDENT: KALURAM

DATE OF JUDGMENT: 10/04/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. SUBBARAO, K.

CITATION:  1967 AIR  574            1963 SCR  (1) 648  CITATOR INFO :  R          1980 SC 645  (4)

ACT: Hindu  Law-Joint  family property-Sale by father  and  Minor son-Whether  binding on minor son- Legal necessity for  part of sale consideration-If alienation justified-  Interpretion of sale deed-- If transfers cultivatory right in Sir also-C. P. Tenancy Act, 1920 (C.  P. 1 of 1920), s. 49 (1).

HEADNOTE: R and his father executed a sale for Rs. 50,000/-  transfer. 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".   Subsequently. 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 over them. 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 on. 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

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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.

JUDGMENT: 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 1946. 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, district Bilaspur. 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

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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 allowed. 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  considera- tion  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

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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 rejected. 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  tran- saction  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

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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  Gharib- Ullah  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  trans- ferred  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  cul- tivating  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

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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. Appeal dismissed.