Ram Prasad Kanu and Another vs Kripesh Kumar Chowdhury and Others

G. Mehrotra, J.—This appeal has been filed on behalf of the plaintiffs. Briefly the plaintiffs'' case is as follows: Beni Madhab Gupta who is arrayed as defendant No. 4 in the court below, was the owner of the suit land. Late Rajkumar Tewari -- father of defendants No. 2 Ramdatta Tewari and No. 5 Ram Narain Tewari was the tenant of defendant No. 4 in the suit land at an annual rental of Rs. 15/-. After his death his two sons defendants 2 and 5 survived as his heirs.

Under an amicable partition between the two sans, defendant No. 2 got the western portion of the suit land and defendant No. 5 the eastern portion. In Magh 1349 B. S. defendant No. 2 sublet a portion of his holding to the plaintiffs at an annual rental of Rs. 10/-. Plaintiffs have been possessing this land measuring about one Katha. In 1951 defendants 2 and 5 agreed to sell their shares to the plaintiffs and on the 3rd August 1951 defendant No. 5 sold his half share to the plaintiffs for Rs. 500/-.

Defendant No. 2 refused to transfer his share of the property and a suit for specific performance of the contract was brought by the plaintiffs which was compromised and the plaintiffs got a money decree. Thereafter defendant No. 2 executed a sale deed in favour of defendant No. 1 in respect of the entire, suit land and the defendants No. 1 Kumar Choudhury, No. 2 Ramdatta Tewari and NO. 3 Shyamu Raj Bhor dispossessed the plaintiffs from the portion of the land purchased by them from defendant No. 5. The case of defendant No. 4 as that the land belonged to him and was let out to the father of defendants 2 and 5.

Defendants 1 and 2 have filed a joint written statement pleading that the defendant No. 5 separated from his father and inherited no property from him. The entire suit land was in possession of defendant No. 2 since the date of his father. On 8th December 1951 plaintiffs encroached upon a portion of the said land and built a garage on it and later on got a Kabala executed in their favour by defendant No. 5. In the alternative they also claimed that the defendant No. 5 being a coparcener had no right to transfer his undivided share without the consent of defendant No. 2 and as such the plaintiffs acquired no right in the property, under the sale deed executed by defendant No. 5 in their favour.

The trial court decreed the suit. On appeal the suit was dismissed. The trial court held that the plaintiffs had cause of action and the suit was maintainable and that the suit was not barred by limitation. As to the plea of the defendant''s 1 and 2 that defendant No. 5 being a coparcener, could not transfer his coparcenary interest without the consent of the other coparcener, the trial court held that Rajkumar Tewari came from Benares and lived at Silchar and was thus governed by the Mitakshara law.

He however held that the Mitakshara law as prevalent in Uttar Pradesh, West Bengal, Bihar, Orissa and Punjab is different from the one prevalent in Bombay and Madras. In Bombay and Madras the coparcener is allowed to transfer his undivided interest for value. The transferee however, cannot claim possession without a partition and according to him the Mitakshara law as applied in Bombay Madras and Madhya Pradesh, would be applicable to the present case.

In my view the Subordinate Judge is right in remarking that there was no basis for the court below to come to the conclusion that the Mitakshara law as administered in Bombay, Madras and Madhya Pradesh will apply to the present case. The Subordinate Judge was of opinion that the Mitakshara law as administered in the neighbouring States of West Bengal. Bihar and Orissa is applicable to the present case.

The lower appellate court in my opinion was not right in saying that the law as administered in the neighbouring States of West Bengal, Bihar and Orissa will necessarily apply, to the present case. The father of defendants 2 and 5 came from Banaras and as he is still governed by the Mitakshara law, the law which will govern the present case is one which is administered in Uttar Pradesh and not the one which is administered in the other States.

Under the Mitakshara law as administered in Banaras no coparcener can alienate for value his undivided interest without the consent of the other coparceners, unless it is for legal necessity or for payment by a father of antecedent debts. But such a transfer is not void. It is voidable at the instance of non-alienating coparceners. Such a sale will certainly be invalid in its entirety and will not be good even to the extent of the share of the alienating coparcener.

But it is not void ab initio. The court below has proceeded on the assumption that such a transfer is void. Mr. Singh who appears for the appellants, however contends that the only right which defendants No. 1 and 2 had in this case was to file a suit for a declaration that the transfer in favour of the plaintiffs was void in its entirety. But it was not open to the defendants to take up this plea in defence. In my opinion there is no bar to the defendants taking up the plea that the plaintiffs are; not entitled to enforce the transfer as against them as it was made by one of the coparceners without legal necessity.

The defence however, is open to the non-alienating coparcener or a transferee of the entire joint family interest. On the findings of the court below that the family was joint, even defendant No. 2 had no right to sell the entire property to defendant No. 1 and as such defendant No. J. cannot be regarded as the transferee of the entire interest of the coparcenary body and as such defendant No. 1 had no right to resist the transfer in favour of the plaintiffs on the ground that it was obtained without the consent of the other coparcener. Reference in this connection may be made to the eases of Madan Lal and Others Vs. Gajendrapal Singh ; Madan Lal Vs. Chiddu and Others and Shyam Behari and Another Vs. Rameshwar Prasad Sahu and Others,

Mr. Choudhury who appears for the respondents, refers to the cases of Madho Parshad v. Mehrban Singh reported in ILR 18 Cal 157 (PC) and Balgobind Das v. Narain Lai, reported in 20 Ind App 116 (PC) in support of the contention that the transfer by a coparcener without the consent of the other coparcener is void in its entirety. As I have already indicated, these cases only lay down that the transfer without the consent of other coparceners by one of the coparceners will not be valid even to the extent of the transferor''s share. But these cases do not lay down that such transfers are void ab initio. Reference may be made to the case of Indernath Modi v. Nandram reported in AIR 1957 Rai 231 and Mulla''s Hindu Law 12th edition paragraphs 260 and 261.

There is Anr. aspect of the matter. The specific plea taken by the defendants was that the plaintiffs'' transferor defendant No. 5 had separated, during the life-time of his father and had no interest in the disputed property. The property devolved exclusively on defendant No. 2 alter the death of his father. It has not been expressly pleaded that the transfer in favour of the plaintiffs by defendant No. 5 was without the consent of the defendant No. 2 and without the legal necessity so as to be voidable by defendant No. 2.

If the point had been expressly taken, the parties would have led evidence to show whether the transfer was for legal necessity or not and further, whether in the circumstances of the present case it can be said that there was consent of defendant No. 2. The plaintiffs'' case was that an agreement was entered into between the plaintiffs and defendants 2 and 5 both for the transfer of the entire share.

As the defendant No. 2 backed out of the transaction the plaintiffs had to bring a suit for specific performance which was compromised. The conduct of defendant No. 2 in entering into an agreement for Sale of his share of the property also may in the circumstances of the case amount to consent and if the point had been expressly taken, the courts below would have applied their mind to that question.

One other aspect of the matter which has not been considered by the courts below is that in Mitakshara school of Hindu law the partition need not necessarily be a division by metes and bounds. If there is a declaration by a member of the coparcenary body to live in severalty, each coparcener from the date of such declaration acquires interest in his separate share and is entitled to deal with it The enjoyment may even remain joint but the status of the coparcenary body comes to an end and each coparcener from the date of such separation ac quires a distinct interest.

Such a partition can be brought about by a unilateral act or declaration and if the courts below had the point of difference between a partition in the Mitakshara school and the Dayabhaga school of Hindu law in mind they would have examined the question as to whether the fact that the plaintiffs'' transferor defendant No. 5 executed a sale deed in respect of his half share amounts to an unequivocal declaration on his part to separate and puts an end to the joint family.

The defendant No. 2''s own case was that defendant No. 5 had separated from his father during his life-time. The separation of defendant No. 5 itself may have amounted to a disruption of the Hindu joint family. The court below has barely gone on the question that in the neighbouring States of Bengal and Orissa it is not open to a coparcener to alienate even his share, but he has not examined the various aspects of the matter which arise on the assumption that the parties are governed by the law of Mitakshara as administered in Banaras.

The plaintiffs'' case was that both defendant 2 and defendant 5 were in possession under a mutual partition over distinct and different shares and the plaintiffs'' predecessor transferred his interest to the plaintiffs. The defendants'' case on the other hand was that defendant No. 5 had separated during the life-time of their father and the entire property devolved on defendant No. 2 after the death of their father. This case not having been found to be true and it having been admitted that the property belonged to father in which the plaintiffs'' transferor had half share, the suit had to be decreed particularly when the defendant himself had come forth with a case that the joint family had disrupted-In the result therefore, I allow this appeal with costs, set aside the decree of the lower appellate court and restore that of the trial court.