Chandran and Sekar vs N. Ranga Naidu and Jagadeeswariammal

Bellie, J.—The two plaintiffs are the appellants in this Second Appeal. They filed the suit for partition and past and future mesne profits. The plaintiffs are the sons of one Govindarajulu Naidu. The Said? Govindarajulu Naidu and his younger brother Rangan executed a sale deed Ex.B1 dated 20-2-1957 in respect of a property of their joint family consisting of the plaintiffs also. The two plaintiffs were then minors. After'' attaining majority they filed this suit pleading that they were entitled to 1/3rd share in the suit property and the sale was not for legal necessity and their father sold the property for his own immoral purposes, and therefore the sale deed in respect of their 1/3rd share is not binding on them. The plaintiffs impleaded their junior paternal uncle Rangan as the first defendant and the alienee Jagadeeswari ammal as the second defendant. The suit was contested by the alienee second defendant contending that the property was sold for discharging an antecedent debt of the joint family and for meeting marriage expenses of the first defendant and therefore the sale was binding on the plaintiffs. The learned District Munsif who tried the suit accepted the plaintiffs'' case that the sale was not for the benefit of the family and the sale consideration was utilised for immoral purposes of the plaintiff''s father and therefore the sale in respect of the plaintiff''s share is not valid. Consequently he decreed the suit for partition and also granted a decree for Rs. 500 as past profits. The second defendant alienee filed an appeal and the plaintiffs have also filed cross-objections contending that the past profits awarded was low. The Appellate Court did not agree with the finding of the trial Court that the sale was not for family necessity but for immoral purposes of the plaintiff''s father. If was held that the sale was for discharging antecedent debts and therefore the sale is binding on the plaintiffs. In the result therefore it allowed the appeal and dismissed the suit.

As against this the plaintiffs have come on this second appeal. Mr. M.V. Krishnan, learned councel for the appellants/plaintiffs argued that the sale deed Ex.B1 so far as the plaintiff''s share is concerned is defective in law and therefore it is illegal and not binding on the plaintiffs. He argued so with reference to S.8 of the Hindu Minority and Guardianship Act, 1956. According to the learned counsel as per S.8 of the Act the guardian of a minor shall not transfer by sale the estate of a minor without previous permission of the Court, and if he had done so the sale is voidable at the instance of the minor, and in the present case no such permission was obtained from the Court. S.8 so far as it is relevant for our purpose reads as under:--

(1) The natural guardian of a Hindu minor has power, subject to the provisions of this Section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor''s estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the Court,--

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-S. (1) of sub-S. (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-S.(2) except in case of necessity or for an evident advantage to the minor.

This Section deals with the right of the natural guardian of a Hindu minor in respect of the latter''s estate. The point is whether the minor''s estate in this Section includes minor''s undivided interest in a joint family property. That it does not, is clear from S.6 of the Act. This Section declares the persons who are natural guardians of a Hindu minor in respect of the minor''s person as well as the minor''s property while so declaring, it excludes the minor''s undivided interest in the joint family property. Section 6 reads thus:--

The natural guardians of a Hindu minor, in respect of the minor''s person as well as in respect of the minor''s property (excluding his or her undivided interest in joint family property), are--

(a) in the case of a boy or an un-married girl the father, and after him, the mother; provided that the custody of a minor who has not completed in age of five years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father;

(c) in the case of a married girl, the husband.

It is clear that the natural guardian for the purpose of the Act, more particularly as regards S.8, is not the guardian vis-a-vis minor''s undivided interest in the joint family property. It is, therefore, apparent that S.8 of the Hindu Minority and Guardianship Act, 1956 has no relevancy to a minor''s undivided interest in the joint family property. In the present case, as said above, we are concerned with only undivided interest of the plaintiffs minor in the joint family property. Hence there is absolutely no merit in the contention of the learned counsel.

Then the learned counsel switched on to argue that the first appellate Court has grievously erred in holding that there was legal necessity. In this connection it was submitted that the first appellate Court has not considered the evidence of P.Ws.2 and 3 who are independent witnesses which will show that the plaintiffs'' father was leading an immoral life and that it was not proved by the alienee that the sale price was utilised for family necessity. On carefully going through the judgments of the Courts below and also the evidence in the case I find there is no substance in these contentions. There is a clear finding of the first appellate Court that the sale was for the purpose of payment of antecedent debt and for other family expenses. Referring to documentary evidence the first appellate Court has found that there was an antecedent debt subsisting and there was necessity for the marriage expenses of the first defendant, the plaintiff''s junior uncle. Even in Ex.B1 sale deed itself, reference has been made about family mortgage debt and also the marriage expenses of the first defendant. This is a finding of fact. As regards the contention that the first appellate Court has not considered the evidence of P.Ws.2 and 3 the learned counsel is absolutely wrong. I find the first appellate Court has clearly referred to their evidence and has stated that it is in general nature and therefore it cannot be relied on. On the other hand the trial Court has not even touched the said evidence of P.Ws.2 and 3. Regarding the contention that the alienee has not proved that the sale price was utilised only for legal necessity or family benefits, here also there is no substance. As seen above it has been proved and has been held by the first appellate Court that there was an antecedent debt to be discharged and there was family necessity which required funds. This being the case I do not think it is necessary that the alienee should further prove that the sale price was in fact utilised for family necessity and not for any immoral purposes. To require him to do so would be placing unjust and too heavy a burden on him. In fact the Supreme Court in dealing with such a question has stated in Radhakrishnadas Vs. Kaluram, that--

Where an alienation by way of sale of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the aliened 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. The reason is that the alienee 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 of himself.

Therefore there is no point in arguing that the alienee has not proved that the sale price was utilised for family necessity. Thus I find no merit in this second appeal. Accordingly the second appeal is dismissed with costs.