Narsinhbhai Chhotabhai Patel and Another vs Dahyabhai Chhotabhai and Others

J.N. Bhatt, J.—This appeal is directed against the judgment and decree passed by the learned District Judge, Kheda, at Nadiad, in Regular Civil Appeal No. 65 of 1978, on 30th November, 1979.

The learned Counsel for the Appellants has contended that in the facts and circumstances of the present case, the alienation made by the ''manager'' of the joint family, in favour of Respondents No. 2,3 and 4/original Defendants No. 2, 3 and 4 was not legal and proper. In order to appreciate this contention, it would be necessary to refer to the relevant facts and circumstances giving rise to the present appeal.

The present Appellants are, the original Plaintiffs, who filed Regular Civil Suit No. 24 of 1974, for declaration and possession in respect of agricultural property bearing revenue Survey No. 92, admeasuring 2 acres and 30 gunthas (hereinafter referred as ''the suit property'') The Plaintiffs contended that the sale deed in respect of the suit property executed by Respondent No. 1/original Defendant No. 1, in favour of Respondents No. 2, 3 and 4/original Defendants No. 2, 3, and 4 was not legal. Accordings to the Appellants, the sale deed was executed by Respondent No. 1 in collusion with Respondents No. 2,3 and 4, and they did not receive any concideration out of the said transaction. It was further constended that all other ancestral properties, except the suit property, had been divided long before and Respondent No. 1 had no authority to alienate the share of the Plaintiffs. Therefore, the suit was filed for possession and for setting aside the sale deed. The sale deed was executed by Respondent No. 1 in respect of the suit property on 15th May, 1964, produced at Ext.62.

Respondent No. 1/original Defendant No. 1, appeared and supported the case of the Plaintiffs. Defendants No. 2,3 and 4 appeared and filed a separate written statement and resisted the suit of the Plaintiffs. Respondent No. 5/original Defendant No. 5 did not contest the suit.

On appreciation of the evidence on record and considering the facts and circumstances emerging form the evidence, the trial court was pleased to find that the suit property was undivided joint family property between the Appellants and Respondents No. 1 and 5, The trial court was also pleased to hold that Respondent No. 1/original Defendant No. 1, was also a "manager" on the joint family and therefore, a "karta" in respect of the property belonging to the joint family. Therefore, he was entitled to alienate the joint family property. It was also found by the learned trial judge that the alienation made by Respondent No. 2 in respect of the joint family property was for legal necessity in the interest of minor. The suit was, therefore, dismissed.

The Plaintiffs, being aggrieved by the said judgment and decree of the trial Court, preferred Regular Civil Appeal No. 65 of 1978 before the District Court. The learned District Judge of Kheda, at Nadiad, was pleased to dismiss the appeal. Hence, this Second Appeal.

The contention that both the courts below have, wrongly, assumed that it was an admitted fact that the suit property belonged to joint family and Respondent No. 1 was "Karta" therof, prima facie, would appear to attractive, but not acceptable in view of the facts and circumstances of the case and on a plain perusal of the averments made in the plaint In the facts and circumstances of the present case, the finding arrived at by both the courts below, the alienation made by Respondent No. 1/original Defendant No. 1 was in capacity of "karta" and manager'' of the joint Hindu family and for legal necessity, deserves no interference. In fact, the finding that the alienation was made for legal necessity of the family is not disputed. The only dispute which is raised before this Court, in this appeal, is that there was no joint Hindu family as such, and the property was not ancestral property. Therefore, the alienation made by Respondent No. 1/original Defendant No 1,1, was not legal and proper. This contention is not sustainable in the fact and circumstances of the present case and in the light of the evidence on record. The Appellants herein/original Plaintiffs have, categorically, stated in the plaint that the suit property, which is undivided ancestral property of the joint family, was managed by Respondent No. 1/original Defendant No. 1, being the eldest male member of the family. A person, who is acting as manager of the joint Hindu family, is popularly known as "Karta. "The "Karta" is entitled to alienate property of the joint Hindu family for legal necessity and in the interest of minors. In the facts and circumstances of the case, the alienation made by Respondent No. 1/defendant No. 1 is quite legal and valid as it was designed to meet with the legal necessities and in the interest of minors in the family.

Incidentally, it may be mentioned that it was contended that the sale deed, Ext. 62, dated 15th May, 1964, was executed by Respondent No. 1 in his personal capacity as well as the guardian of minor Narsinhbhai Chhotabhai Patel, Appellant No. 1/original Plaintiff No. 1, and not as "karta" or "manager" of the joint family. It is also pointed out that the revenue record was also standing in the name of Respondent No. 1, in his personal capacity as well as well as the guardian of the said minor. Relying on this aspect, it is contended that the suit property was a joint property between two brothers, i.e., Respondent No. 1 (Dahyabhai) and Appellant No. 1 (Narsinhbhai), and, therefore, alkienation made by and on behalf of the minor, as his guardian was not proper and legal. It is true that sale deed was executed by Respondent No. 1 in his personal capacity as well as guardian of minor Narsinhbhai. Nonetheless, reading the entire sale deed and the undisputed fact that he was working as a "manager", it cannot be contended that there was joint ownership and the property was not ancestral property. In view of the evidence on record, the suit propetry was ancestral joint Hindu family property and it was managed by Respondent No. 1 as "manager" and "Karta" of the said joint family. Therefore, he was competent and authorised to enter into transaction in respect of the disputed property for legal necessities and in the interest of minors.

Having regard to the facts and circumstances of the present case, the contentions raised, challenging the legality and validity of the impugned judgment and decree, cannot be sustained. There is no any justification, whatsoever, to interfere with the impugned judgment and decree passed by the learned trial court judge in Regular Civil Suit No. 24 of 1974 and confirmed in Regular Civil Appeal No. 65 of 1978. There is no merit in the present appeal. Therefore, it is required to be dismissed.

In view of the facts and circumstances of the present case, the appeal is dismissed. There shall be no order as to costs.