Jampala Pakeeraiah and Another vs Katuru Venkateswararao and Others

Umamaheswaram, J. :

The important question of law that arises for decision in the appeal is whether when an alienation effected by a father is set aside at the instance of the sons, the purchaser in possession is bound to pay mesne profits from the date of the alienation. There is a conflict of authority on the point. In Subba Goundan v. Krishnamachari, ILR 45 Mad 449: (AIR 1922 Mad 112,) It was held at p. 465 (of ILR Mad) : (at p. 118 of AIR) that the sale effected by a father or managing member of the joint family will be good till avoided, as it is open to other coparceners to affirm the transaction. Following the decision of the Allahabad High Court in Bhirgu Nath Chaube V. Narsingh Tewari, ILR 39 All 61: (AIR 1917 All 479) the learned Judges limited the claim for mesne profits from the date of suit as there was no repudiation before the suit. The same "view was taken by the Madras High Court in Ganesa Aiyar v. Amirathasami, AIR 1918 Mad 178, and the learned Judges held that as mesne profits are in the nature of damages, each case must be dealt with on merits. In Ramaswami Aiyar v. Venkatarama Aiyar, ILR 48 Mad 815 : (AIR 1924 Mad 81) it was held that as the sale hy the manager of the family is not prima facie void but only voidable at the instance of the other members of the family, the plaintiff is not entitled to any mesne profits until the date of the suit. In Mulla''s Hindu Law, 12th edition, at p. 406, the law is set out in the following terms :

"Where an alienation is set aside under this section and the purchaser is in possession, he may be required to pay mesne profits from the date on which the sale is repudiated by the other coparce- ners, but not from the date of sale, the sale being valid until it is repudiated."

Reference is made in the text book to the decision of the Bombay High Court in Gangabisan Jeevanram v. Vallabhdas Shankarlal, ILR 48 Bom 428 : (AIR 1924 Bom 433) where there is no discussion.

A contrary view is sounded by Varadachari J. (the great lawyer-Judge, well-versed in Hindu Law) in delivering the judgment of the Bench in Veerayya v. Venkata Bhashyakarlarao, ILR (1937) Mad 66: AIR 1936 Mad 887. The learned Judge referred to the decisions of the Madras High Court in ILR 45 Mad 449 : (AIR 1922 Mad 112) and ILR 46 Mad 815 : (AIR 1924 Mad 81) which lay down in general terms that in respect of voidable transactions there is no right to claim mesne profits prior to the date of suit Or the date of repudiation.

The learned Judge clearly stated that after the decision of the Privy Council in Satgur Prasad v. Har Narain Das. 62 Mad LJ 451 : ILR 7 Luck 64 : (AIR 1932 PC 89) no such general proposition can be advanced. Or, in other words he doubted the correctness of the two decisions of the Madras High Court referred to by that learned Judge sitting with Mr. Justice Abdur Rahman in Krishnamurty v. Satyaoarayana, ILR(1939) Mad 917 : (AIR 1939 Mad 824).

Having regard to the importance of the question involved in the appeal as also the conflict of authority, I think it necessary to refer it to a Bench in order to have an authoritative decision on the matter. Post before a Bench.

JUDGMENT OF THE DIVISION BENCH.

P. Chandra Reddy, C.J.

The question that is posed in this appeal is whether a coparcener, who impeaches the alienation by the manager of a joint Hindu family, could recover mesne profits from the date of sale or only from the date on which he chooses to question it.

The circumstances under which this question arose in this case may be briefly set out. The two sons of one Katuru Venkatappaiah challenged the alienations made by their father, who is im-pleaded as the first defendant in O. S. No. 141 of 1950 on the file of the Subordinate Judge''s Court, Tenali, in favour of the second and third defendants, on the ground that they were not for a justifiable or a necessary purpose. It is not necessary to refer to the defence set up by the defendants, as it has no bearing on the present enquiry. Ultimately, the sales were set aside on the ground that the requirement of legal necessity or benefit to the family was wanting in the case. The trial Court also decided that defendants 2 and 3 were liable to the plaintiffs for their share of the profits from out of items 1 and 2 of the plaint schedule property from the dates of the respective sales till the date of recovery of possession of their shams of the property.

An appeal was filed by the aggrieved defendants to this Court only in regard to mesne profits. When it came on for hearing before our learned brother, Umamaheswaram J. he thought that there was a conflict between two sets of decisions of the Madras High Court on the question as to the liability of an alienee from the father or the manager of a joint Hindu family to mesne profits from the date of sale. He therefore, referred the matter to a Bench.

The primary point for determination is whether a member of a joint Hindu family who chooses to avoid a sale, is entitled to mesne profits from the date of sale. The leading case on this topic, so far as the Madras High Court is concerned, is Subbe Goundan and Another Vs. Krishnamachari and Others, . It was there laid down that in the case of a sale by the father or the managing member of a joint Hindu family for an alleged necessity, the sale was good till it was avoided and the claim for mesne profits should be confined to the period from the date of the suit or from the date on which the transaction was assailed.

The learned Judges adopted the principle of Bhirgee Nath Chaube and Another Vs. Narsingh Tewari and Another, Sunderlal J., who concurred in the opinion of Wa!sh J. that the alienee was answerable to the plaintiffs as from the date of repudiation by the plaintiffs in the suit impugning the sale and for mesne profits, based this doctrine on the ground that "in an ordinary Hindu family no member of a joint family is entitled to an account from the head of the family and the plaintiffs would not have been entitled to obtain an account of their share of the profits from the father, nor are mesna profits awarded in a partition suit except under very exceptional circumstances."

The Allahabad case was followed by the Madras High Court in Ganesa Aiyar and Another Vs. Amirthasami Odayar and Others, even before Subbe Goundan and Another Vs. Krishnamachari and Others, There Wallace C. J. and Kumaraswami Sastri J. held that the plaintiffs, who sought to avoid an alienation by their father, were not entitled to mesne profits from the date of alienation and observed that the correct principle was as laid down in Bhirgee Nath Chaube and Another Vs. Narsingh Tewari and Another, In Ramaswami Aiyar and Others Vs. A.S. Venkatarama Aiyar, Philips and Venkata-subba Rao JJ. followed ILR 45 Mad 449 : Subbe Goundan and Another Vs. Krishnamachari and Others, They remarked that the sale by the manager of a joint Hindu family, as such, was not prima facie void but only voidable at the instance of other members of the family.

We may say here that this dictum is in consonance with the decision in Hanuman Kamat v. Hanuman Mandur ILR Cal 123 There, their Lordships of the Privy Council laid down inter alia that the sale was not necessarily void from the beginning, but was so only from the date objections were taken by the other members of the joint family. This doctrine was again affirmed by the Privy Council in Banwari Lal v. Mahesh ILR All 63 : AIR 1918 PC 118 . There, the litigation related to an alienation by a Hindu father. The sale was not wholly for a justifiable or a necessary purpose. Their Lordships held that as the sales were to be set aside by payment of certain sums, the defendants (alienees) must be deemed to be lawfully in possession until they were set aside and were, therefore, not accountable for mesne profits.

The rule that a member of a joint Hindu family, who elects to avoid a sale made by the father or a member of the Hindu family, could recover mesne profits only from the date of repudiation thereof, found favour with the Supreme Court in Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and Others, Mukhcrjea J., who delivered the opinion of the Court, made a distinction between the alienee of a widow and the transferee of a joint family property from a Mitakshara father.

In their Lordships'' view, the son of a Mitakshara father was bound to set aside an alienation made by the father within the period laid down In Article 125 of the Indian Limitation'' Act and it was only when the alienation was set aside that he was entitled to recover possession of the property, while a reversioner was under no obligation to set aside the sale, as he could treat it as a nullity from the date of the death of the widow. It was remarked that in the latter case it was quite proper to allow the reversioner mesne profits against the alienee from the date of the widow''s death. Their Lordships cited with approval the Privy Council decision in ILR 41 All 63 : TIR 1918 PC 118 for the position that a member of a joint Mitakshara family was bound to set aside the sale by the father. In other words, he could claim mesne profits only from the date he seeks to avoid the same.

We do not think that AIR 1932 89 (Privy Council) contains a contrary doctrine. That was a case where a deed was procured by fraud and misrepresentation and, consequently, it was held that the plaintiff, who questioned the validity of the transaction, was entitled to mesne profits from the date of the transaction. Their Lordships upheld his claim u/s 88 of the Trusts Act in view of the fact that the alienee procured the conveyance by taking advantage of the relationship that existed between him and the alienor as also u/s 65 of the Indian Contract Act, as the possession of a transferee who defrauded was wrongful from the inception.

Nor is it correct to say that Varadachariar and Mocket JJ. took the opposite view in Moravaneni Veerayya and Others Vs. Sree Raja Bommadevara Venkata Bhashyakaralarao Bahadur, . In peculiar circumstances of that case the person who, challenged the alienation by the father, was held entitled to mesne profits from the date of alienation. A Suit was instituted for partition on behalf of a minor Hindu son against the father in 1920 and there was a decree in terms of the compromise in March 1921. This was followed by an application for the passing of a final decree. Between this date and the date of final decree, the father granted the defendants a patta giving permanent occupancy rights to the grantees in lands which were till then the home-farm lands of the estate. This property was ultimately allotted to the minor son. In the compromise decree, it was specifically provided that neither side could dispose of any village without consulting the other.

There was also restriction on the power of the father to make any borrowings. Having regard to the terms of the compromise and the circumstances of the family at that time, their Lordships held that the transaction was not one within the powers ot the father and that the patta did not confer any occupancy rights on the defendants. It should be noted that the father could no longer be regarded as the manager of the family, as the joint status was disrupted by the filing of the suit. Further, the father was under a disability in the matter of making an alienation as a result of another rule, namely, the rule of lis pendens, apart from there being a restriction on his power of alienation without consulting the other party. Thus, that case stands on a different footing and does not afford any analogy.

It is true that the learned Judges observ-ed that it was not possible to lay down in general terms that in respect of voidable transactions there was no right to claim mesne profits prior to the date of suit, and they proceeded on the assumption that that was the effect of the two decisions Subbe Goundan and Another Vs. Krishnamachari and Others, . It may incidentally be mentioned that neither of the two cases referred to by the learned Judges contained any such broad proposition. What was stated in those two cases has already been noted and it is not necessary to advert to it once again. But, so far as the dictum in Moravaneni Veerayya and Others Vs. Sree Raja Bommadevara Venkata Bhashyakaralarao Bahadur, is concerned it is unexceptionable. The question whether mesne profits could be recovered in a given case depends upon the nature of the alienation. As observed by the same learned Judge (Varadachariar J.) who spoke for the Court in ILR (1939) Mad 917 : (AIR 1939 Mad 824) which will be referred to presently,

"It may not be right to place all cases of what are described as ''voidable'' alienations on one and the same footing for the purpose of determining the right of a successful plaintiff to mesne profits."

To borrow the words of Lord Hobhouse in Grish Chunder Lahiri v. Shoshi Shikhareswar Roy ILR Cal 951 (PC),

"Mesne profits are in the nature of damages which the Court may mould according to the justice of the case."

It cannot, therefore, be postulated as a inflexible rule of law that in no case of voidable transactions could mesne profits be recovered from the date of sale. Each case has to be decided in accordance with the principle of justice and equity. As illustrations of this principle, their Lordships of the Supreme Court in Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and Others, cited Bhagwat Dayal v. Debi Dayal ILR Cal 420 and AIR 1932 89 (Privy Council) : Moravaneni Veerayya and Others Vs. Sree Raja Bommadevara Venkata Bhashyakaralarao Bahadur, does not carry the respondents anywhere.

Nor does ILR (1939) Mad 917 : (AIR 1939 Mad 824) render any assistance to them. That was a case where the reversioner. who chose to question the alienation by a widow after her death also claimed mesne profits for three years the widow having died six years before the institution of the suit. In that position, Varadachariar and Abdur Rahman JJ. ruled that the plaintiff was entitled to mesne profits for three years before the suit. This ruling is in conformity with the principle adumbrated by the Privy Council and other High Courts in India as also by " the ruling of the Supreme Court Mummareddi Nagi Reddi and Others Vs. Pitti Durairaja Naidu and Others, and that proposition is incontestable. That does not bear out the theory propounded by the respondents.

On the other hand, we find some observations in the judgment of Varadachariar J. in ILR 1939 Mad 917 : (AIR 1939 Mad 824) occurring at p. 926 (of ILR Mad) : (at pp. 829, 830 of AIR) which are significant :

"Alienations by a father in a Mitakshara joint family and by the guardian of a minor might well be placed on a different footing; and it is significant an this connection to note that while Articles 44 and 126 of the Limitation Act describe the suits there dealt with as suits to set aside an alienation, the language of Article 141, which applies to suits by re-versioners, is very different.''''

A careful examination of the two rulings viz. Moravaneni Veerayya and Others Vs. Sree Raja Bommadevara Venkata Bhashyakaralarao Bahadur, reveals that they do not give any support to the proposition advanced on behalf of the respondents. Really there is no conflict between these decisions and the principle embodied in Subbe Goundan and Another Vs. Krishnamachari and Others, and that line of cases.

Sri Balakoteswara Rao, counsel for the respondents, drew our attention to (Maddali) Visweswara Rao Vs. (Maddala) Suryarao and Others, as striking a different note and dissenting from Subbe Goundan and Another Vs. Krishnamachari and Others, . We do not find anything in the judgment of Stone J., who delivered the opinion of the Court, which warrants this supposition. For one thing, that decision does not deal with the claim to mesne profits. Secondly, while dealing with the question whether a void bans-action could be ratified or not, the learned Judge stated that he preferred the view expressed in Subbe Goundan and Another Vs. Krishnamachari and Others, We may observe that the Bombay High Court in Gangabisan Jeevanram Marwadi Vs. Vallabhdas Shankarlal, expressed the same opinion as Subbe Goundan and Another Vs. Krishnamachari and Others, Our attention has not been drawn to any ruling of any Court which disagreed from the view taken in Subbe Goundan and Another Vs. Krishnamachari and Others,

It is true that there are passages in Mayne''s Hindu Law which lend some countenance to the stand taken by the respondents. At page 506 of Mayne''s Hindu Law (11th Edition), this is what the author observed :

"Such an alienation must on principle be invalid as against the members of the family from its inception though they can elect to abide by it. The possession of a purchaser under an unauthorised alienation by the Manager will be wrongful unless it is assented to or ''ratified'' by the other co-parceners."

In the foot-note at page 507, referring to ILR 41 All 63 : (AIR 1918 PC 118) the author opined that there is no ground for making a distinction between the alienation by a Hindu lather and an alienation by a widow, the earlier being typified by ILR (1939) Mad 917 : (AIR 1939 Mad 824) and the latter by ILR Cal 420 (P.G.). The author thought that no such distinction could on principle be drawn. We do not think that we could assent to this view of the author, however eminent he might be. In Our opinion, this is opposed both to the general principles of Hindu Law and decided authorities. There is no warrant for the proposition that an alienee from a Hindu Mitakshara father is answerable to mesne profits from the date of sale. On this ground alone, the claim for mesne profits should be disallowed.

There is also another obstacle for recovery of mesne profits by the plaintiff-respondents in this case. A reference to the plaint discloses that no claim for past mesne profits was put forward in it and the plaintiffs were content with future profits.

Past profits have to be assessed approximately and a claim made therefor, paying Court-fee thereon.

Otherwise, no relief could be granted for past profits. We think this position cannot be disputed, having regard to Order VII, Rule 2 C. P. C. and also Section 7 (iv) (f) of the Madras Court-fees Act (See Babburu Basavayya and Others Vs. Babburu Guravayya and Another, .

For these reasons, we hold that the plaintiffs could not recover any past mesne profits and that the view of the trial Court is unsustainable.

In the result, the appeal is allowed with costs.