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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.