Manohar Lal and Another vs Dewan Chand and Others

S.P. Goyal, J.—Dewan Chand father of the Appellants sold land measuring 112 kanals. 10 1/2 marlas for Rs. 8000/--vide sale deed dated September 19, 1963. The Appellants filed this suit for joint possession of the said land alleging that they constituted a joint Hindu family with their father; that the land sold was coparcenary property and that the sale has been made without consideration and legal necessity. The suit was contested by the vendees who controverted all the material allegations and further pleaded that the sale having been made for the benefit of the family and being an act of good management was binding on the Plaintiffs. The trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further holding that the sale had been made for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the Plaintiffs.

The appeal come up for hearing before me sitting singly and finding as to the ancestral nature of the land in dispute was modified holding that 2/3rd of the land in dispute was coparcenary property. Thereafter the question arose as to whether the sale was liable to be set aside in toto qua the ancestral property or was valid and binding to the extent of the share of the vendors. The learned Counsel for the Respondents relying on Jawala Singh and Another Vs. Lachhman Das and Others, , urged that the sale was binding to the share of the vendors. Doubting the correctness of the decision in Jawala Singh''s case (supra) I referred the following question to a larger Bench:

Whether the sale of coparcenary property, if found to be neither for legal necessity nor for the benefit of the estate would be binding to the extent of the share of the vendor?

When the matter came up before the Division Bench, it was brought to their notice that the decision in Jawala Singh''s case (supra) had been later on confirmed by a Letters Patent Bench in Lachhman Dass v. Ude Chand and Ors. L.P.A. 692 of 1973 decided on 31st January, 1977. The Division Bench consequently referred the above question to the Full Bench.

It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshra School of Hindu Law. According to paragraph 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family, governed by Mitakshara law sells or mortgages the joint Hindu family property or any part thereof without the consent of the coparcenor the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcenor. It has been further laid down in ''this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in paragraph 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad and Ors. v. Sarnam Singh and Ors. AIR 1917 P.C. 41, Anant Ram and Ors. v. Collector of Etah and Ors. AIR 1917 P.C. 188, and Manna Lal v. Karu Singh and Anr. AIR 1919 P.C. 108. The Full Bench of the Allahabad High Court in Chandradeo Singh and Ors. v. Mata Prasad and Ors. I Indian Cases 479 (F.B.), and Mathura Misra and Another Vs. Rajkumar Misra and Others, , laid down the law to the same effect. In the United Punjab also as expressed in Badam and Ors. v. Madho Ram and Ors. AIR 1922 Lah. 241 , AIR 1925 130 (Lahore) , AIR 1928 111 (Lahore) , AIR 1932 636 (Lahore) , and AIR 1933 343 (Lahore) , the established view has been the same. A departure was made for the first time in Jawala Singh''s case (supra) relying on the following observations of the Supreme Court in Balmukand Vs. Kamla Wati and Others, ,

No doubt Pindi Dass himself was bound by the contract which he has entered into and the Plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus.

On the basis of the same observations, the decision in Jawala Singh''s case (supra) was confirmed by the Letters Patent Bench In Balmukand''s case (supra) no question that where Mitakshra law prevailed alienation of joint Hindu family property made by the Manager or any coparcenor without any legal necessity and consent by the other coparcenors did not bind the share of the alienor, was raised before the Supreme Court and as such the observations referred to above which were made in the context of Section 15 of the Specific Relief Act would be operative in that limited sphere. By no stretch of reasoning while making the said observations, the Supreme Court can be said to have laid down the law that in the States where Mitakshra law applies, alienation would be binding qua the share of the vendor even though it was made without the consent of other coparcenors and legal necessity nor for the benefit of the estate.

Though this question was not directly involved but the full Bench of this Court in the Commissioner of Gift Tax v. Tej Nath 1972 P.L.R. 1, (full Bench) while determining the nature of the alienation by way of gift and the power of the manager in this regard observed that the rule in both cases (i.e. gift and other alienation) is firmly established that alienation of Hindu undivided family property not permitted by the context of Hindu Law does not even bind the share of the Karta though in the application of this rule, estoppel prevents the Karta from avoiding the alienation. It is, therefore, apparent that except the discordant note struck in Jawala Singh''s case (supra) the proposition of law that under Mitakshra School of Law, the alienation if otherwise void, does not even bind the share of the alienor has, been invariably accepted and holds the field in this Court since more than five decades. Accordingly the question referred to us is answered in the negative and the decision in L.P.A. No. 692 of 1973 (Supra) overruled. The case would now go back to the single Bench for disposal on merits.