Hem Raj and others vs Mehtab Singh and others

Rajendra Nath Mittal, J.—This second appeal has been filed by the plaintiffs against the judgment and decree of the Additional District Judge, Patiala, dated 26th August, 1974.

Briefly, the facts are that Ram Saran Dass, father of the plaintiffs and Janak Raj defendant No. 3, sold land measuring 28 Big-has 16 Biswas situated in village Kalar Bhaini in favour of defendant No. 1 for a consideration of Rs. 1,728/- vide registered sale-deed dated 23rd March, 1957. It is alleged that the plaintiffs and defendant No. 3 constituted a joint Hindu family with their father and the suit land was a coparcenary property. It is further averred that the sale has been effected by defendant No. 2 in favour of defendant No. 1 without consideration and Legal necessity. Subsequently, defendant No. 1 sold the property in favour of defendant No. 4, vide sale-deed dated 4th May, 1959, for a consideration of Rs. 2,500/-. Consequently, they filed a suit for possession of the land.

The suit was contested by defendants Nos. 1 and 4. Defendant No. 1 controverted the allegations of the plaintiffs and denied that they constituted a joint Hindu family with their father and that the property was a joint Hindu family property. He also pleaded that the sale was effected for consideration and legal necessity. Defendant No. 4 in a separate written statement took similar pleas.

The learned trial Court held that the plaintiffs and defendants Nos. 2 and 3 constituted a joint Hindu family of which defendant No. 2 was the Karta, that the land was the coparcenary property and that the sale was for consideration and legal necessity. On appeal by the plaintiffs, the judgment and decree of the trial. Court was affirmed by the Additional District Judge, Patiala. Plaintiffs Nos. 1 and 3 to 5 have come up in second appeal to this Court.

The only question that has been raised by the learned counsel for the appellants is that the Courts below have erred in holding that the land was sold by respondent No. 2 for legal necessity. He submits that neither respondent No. 1 made any inquiry regarding the legal necessity nor he showed that the amount of sale was utilized by respondent No. 2 for any such purpose.

I have heard the learned counsel at a considerable length and find force in his argument. In the sale-deed, it was mentioned that the money was required for business of the shop. In the written statement, the contesting respondents did not aver that the amount was required for the above-said purpose but it was said that the land was sold for legal necessity. Even no specific purpose for which the amount was utilised by respondent No. 2, was pleaded by them. They also did not produce evidence that respondent No. 1 made any inquiry regarding the legal necessity. Even no evidence was led that the amount was required for the purpose of business. Mehtab Singh defendant too did not say so. The Supreme Court in Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, observed as follows :--

......The onus of proving legal necessity may be discharged by the alienes by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.

Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances.

Faced with this situation, the learned counsel for the respondents sought to urge that respondent No. 2 had a family business and he required the money therefor. They submit that respondent No. 2 was running a small shop and he required the money for extending the business as he had a big family to support. They further submit that he had a daughter of marriageable age and he also was in need of money for her marriage. According to them, in the aforesaid circumstances, it cannot be said that there was no legal necessity for selling the land.

I regret my inability to accept the contention. Mere existence of a shop does not go to show that respondent No. 2 required the money for business. The alienee has further to show that he made a bona fide inquiry about necessity for the sale. In the above-said view, I am fortified by the observations of a Full Bench in AIR 1943 33 (Lahore) , wherein it was held that mere existence of a family business was not sufficient to justify the contention that a loan incurred by the manager was incurred for the purposes of the business and was, therefore, binding on all the members of the joint family. The lender was bound to enquire into the necessity, that is, to enquire whether the loan was required for the purposes of the joint family business, but a bona fide enquiry on his part, provided he acted with care and caution, was sufficient to justify the loan. It was further held that a mere representation made by the manager to the effect that the money was required for the joint family business was not sufficient to discharge the onus which lay on the lender to show enquiry into the necessity for the loan. To the same effect are the observations in Ramanathan Chettiar v. M. Ar. Rm. Viswanathan Chettiar AIR 1941 P.C. 43. It was held therein that where the manager of a joint trading family incurred debts for paying off trade debts the lender must either show that there was necessity for the loan, or that he made reasonable enquiry as to the necessity for the Joan and that the facts represented to him were such as, if true, would have justified the loan.

As already observed above, respondent No. 1 did not make any bona fide enquiry regarding the necessity nor he could show that any necessity existed at the time when he purchased the land from respondent No. 2. It is true that respondent No. 2 was running a small shop but that will not justify the sale of a joint Hindu family property.

Regarding the marriage of the daughter of respondent No. 2 the same took place in November, 1959. The sale was however, effected by the said respondent in March, 1957. Thus, there was an interval of more than two and a half yean between the sale and the marriage. No evidence has been led by respondent No. 2 that the sale money was utilised for the purpose of marriage of his daughter. On the other hand, the evidence is that Roshan Lal P.W. 9, Maternal uncle of the said girl, spent money on the marriage. After taking into consideration the aforesaid circumstances, it cannot be held that sale was for legal necessity of the marriage of daughter of respondent No.

The matter maybe examined from another point of view. The daughter of respondeat No. 2 was 16 years old at the time of her marriage. The sale took place two and a half years prior to that. Thus, she was 13 1/2 years of age at the time of sale of the land. It has been held in Pavitar Singh Bachittar Singh etc (1967) 69 P.L.J. 293, that raising money for the marriage of the minor is not a necessary purpose because it is against the provisions of statute law, namely, the Child Marriage Restraint Act, 1929. Therefore, there is no justification at all in law for the guardian to raise money for the marriage of a minor. Even if it may be assumed that the money was raised by respondent No. 2 for the marriage of his daughter who was of 13 1/2 years, the salt cannot be held for legal necessity.

The learned appellate Court, while deciding the case held that Janak Raj son of respondent No. 2 attested the sale-deed and, therefore, it will be presumed that the amount was raised by him for legal necessity. However, the counsel for the respondents fairly admitted that the sale-deed did not bear the signatures of Janak Raj. Thus, the learned appellate Court has relied upon a fact, which, in fact, does not exist, in coming to the conclusion that the sale was for legal necessity.

In the end, the learned counsel for the respondents urged that respondent No. 2 had 1/8th share in the joint Hindu family property out of which he could alienate at least his own share. They urged that therefore, the sale to the extent of his share should be deemed to be valid.

I do not find any substance in this submission of the learned, counsel as well. If an alienation has been made by a Karta out of the joint Hindu family property, the alienation is liable to be set aside wholly if it is not for legal necessity. Reference in this regard may be made to Article 269 of Hindu Law by Mulla (Fifteenth Edition), which reads as follows :--

Setting aside sales and mortgages--Other States.--(1) Where a member of a joint family governed by the Mitakshara law as administered in Bengal, Bihar and Uttar Pradesh sells or mortgages the joint family property or any portion thereof without the consent of his coparceners, the alienation is liable to be set aside wholly unless it was for legal necessity, or for payment by a father of an antecedent debt, and it does not pass the share even of the alienating coparcener. The result is that if the alienation is neither for legal necessity nor for the payment of an antecedent debt, the other coparceners are entitled to a declaration that the alienation is void in its entirety. Even in the Punjab where by custom a son cannot claim partition against the father, the son is entitled to joint possession with the father when the alienation is set aside.

The above view is supported by various decisions of the Privy Council. Reference may, however, be made to Manna Lal v. Karu Singh etc AIR 1919 P.C. 108, and The AIR 1932 182 (Privy Council) In Manna Lal''s case (supra) it was held that a mortgage of the joint property of a Mitakshara family by its Karta or manager, unless necessity or an antecedent debt is proved, is void and the transaction itself give to the mortgagees no rights against the Karta''s interest in the joint family property. Similar view was expressed in The Benares Bank Ltd''s case (supra). The question was also raised before a Division Bench of Lahore High Court in AIR 1935 482 (Lahore) The learned Chief Justice, speaking for the Court, following the Benaras Bank Ltd''s case (supra) observed that a mortgage of joint Hindu family estate by father in order to provide money to one of the sons to start a new business was wholly invalid and under the Mitakshara law, it did not pass the share even of the alienating coparcener.

The view expressed by the Privy Council is still binding on the High Courts if a contrary view has not been expressed by the Supreme Court. Reference in this regard may be made to two Full Bench judgments in State of Bombay Vs. Chhaganlal Gangaram Lavar, , and Kishan Chand Vs. Ram Babu, . In Chhaganlal Gangaram Lavar''s case (supra), Chagla, C.J. speaking for the Bench, observed that so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon High Courts. It was followed by the Allahabad High Court in Kishan Chand''s case (supra). In that case, M.C. Desai, C.J., who presided over the Bench, held that even after the Constitution, the law declared by the Judicial Committee continues to be the law by virtue of Article 372, so long as the Supreme Court does not lay down a different law.

The question as to whether decisions of the Lahore High Court were binding on this Court, came up for consideration before Bhandari, C.J. in Municipal Committee, Delhi v. Janki Das Jagan Nath (1954) 56 P.L.R. 109. The learned Chief Justice held that it may be that this Court is not bound by the decisions of the High Court at Lahore but it must be remembered that this Court is a successor and a continuation of the Court at Lahore and the decisions of that Court ought to be followed in the application of the principle of stare decisis, unless those decisions are manifestly erroneous.

The judgment in Gurmukh Singh''s case (supra), as already stated above, is based on the view expressed by the Privy Council. No contrary decision of the Lahore High Court has been referred to by the learned counsel for the respondents. Therefore, the aforesaid judgment cannot be said to be manifesty erroneous. However, the learned counsel for the respondents relied on Jawala Singh and Another Vs. Lachhman Das and Others, wherein contrary view was taken by a learned Single Judge. In that case, the opinion expressed by the Privy Council and the Division Bench of the Lahore High Court was not brought to the notice of the learned Judge.

After taking into consideration all the circumstances and the law, I reject this submission of the learned counsel for the respondents too.

For the aforesaid reasons, I accept the appeal, set aside the judgments and decrees of the Courts below and decree the suit of the plaintiffs with costs throughout.