HANUMA Vs. KENCHA MARIYA

JUDGEMENT

(1.) The plaintiff and defendant 4 are brothers. On 25-8-1928 they and their father Munidasaiah, now dead, borrowed Rs. 100 from one Siddalingappa and executed a registered hypothecation bond agreeing to pay interest at Rs. 1-4-0 per cent. per mensem and to repay the principal and interest within one year. As security for the debt they mortgaged five items of their joint family properties including the piece of land concerned in this suit. The recital in Ex. I that mortgage deed is that the amount; was borrowed for family maintenance. On 18-1-1941 Munidasaiah alone sold the suit item to defendants 1 to 3 in this suit for Rs. 200. The sale was effected by a sale deed Ex. II in order to pay off the debt borrowed under Ex. I. Defendant 4 attested that document in token of his consent. The plaintiff has brought the present suit for a declaration that the sale of the plaint schedule land by defendant 4 in favour of defendant l to 3 does not bind his half share and for partition and mesne profits. Defendants l to 3 pleaded that the sale was for legal necessity and for the benefit of the family estate as the plaintiff was also bound to discharge the earlier mortgage debt incurred by him and his father and defendant 4. The learned Munsiff held that though the plaintiff was bound to discharge the debt under the hypothecation deed, Ex. I, the sale was not shown to have been necessary as there was no proof of any pressure on the estate requiring such a sale. He found that the plaintiff could only claim a one-third share in the suit property and made a declaration in favour of the plaintiff, that the sale in favour of defendants 1 to 3 was not binding on the plaintiff and that he could recover his one-third share on payment into Court for payment to defendants 1 to 3 a sum of Rs. 53-12-0 and interest thereon from 16-1-1941 which represented one-third of the amount due under the hypothecation deed on the date of Ex. II. On appeal, the learned Additional Subordinate Judge reversed that decision. He held that legal necessity for the sale under Ex. II had been made out and that the act of the father in selling the property to defendants l to 3 to discharge the earlier hypothecation debt, which was binding on the family, was the act of a prudent manager. He found that the plaintiff was not in the village and his whereabouts were not known for 8 or 10 years before that sale and that the circumstance that his consent was not taken to the sale could not therefore affect it. He, therefore, dismissed the plaintiff's suit. The plaintiff has come up in second appeal.

(2.) It is not now disputed that the debt due under EX. I was for purposes binding on the family of the plaintiff and in any case it was fully binding on the plaintiff as he was a party to that deed. But as regards the sale under Ex. II, however, it has not been shown that it was necessary or even beneficial to the family. Mr. V.K. Govindarajulu, learned counsel for the respondents, defendants l to 3, has argued that the hypothecation debt was outstanding from 25 8-1928 upto 16-2 1941 without any substantial reduction and that Ex. I--a endorsement of 16-2 1941 on it showed that only a sum of Rs. 17 4-0 had been paid towards that debt upto that date. He urges that by the action of the father in selling this item of property, all the other items of property owned by the family were saved for the family. He also points out that defendant 4, who was the eldest son of Munidasaiah, would not have given his consent to the sale and, attested EX. II if the sale was not really necessary. These are no doubt relevant considerations bearing on the question but it must be remembered that the burden is upon the alienee in such cases to show that a particular alienation in his favour was for family necessity or benefit. In this case, defendant l has totally failed to discharge that burden. The creditor Siddalingappa has not been examined. His evidence would have been valuable to show whether he was pressing Munidasaiah and defendant 4 to pay off the mortgage debt and whether he was threatening to take legal proceedings if they failed to do so. Defendent has not also let in any evidence to show that the other resources of the family was not enough to discharge this debt and that a sale of one of the items was necessary. In the absence of any such evidence it must be held that the learned Munsiffs conclusion in this matter, viz. that there was no necessity for the sale under Ex. II, must be upheld.

(3.) Mr. Govindarajulu further contends that the sale by Munidasiah was effected by him as manager of the family and that this is clear by the fact that defendant 4 has not joined him in. executing the sale deed but has only attested it. He argues that the powers of a manager to alienate joint family property for purposes of legal necessity are far wider than that of the other members of the family, particularly junior members, and that an alienation by a manager will bind both the minor and adult members of the family provided it is shown that the same was for legal necessity or benefit. There are two decisions of this Court, one in 24 Mys. C. C. R. 376 and the other in 54 Mys, H. C. R. 371, which are against his latter contention. In 24 Mys. C. C. R. 376, it has been held that the question in the case of an alienation, which is sought to bind the adult members of a joint family, is not whether the sale of the same was for the benefit of the family but whether there was an express or implied consent of such adult member. In 51 Mys. H.C.R. 371 (F.B.), it has been held by a majority of the Full Bench that in a joint Hindu family consisting of adults and minors, governed by the Mitakshara law, express or implied consent of the adult members capable of giving consent, is necessary for an alienation of the joint family property by the manager of the joint family, even if it is for legal necessity or benefit, to make the alienation binding on such adult members, though such alienation, if for legal necessity or benefit, is valid as against the minor coparceners. 4. Mr. Govindarajulu, however, contends that there are some observations in the decision of the Pull Bench case which help him in this case to say that there has been an express or implied consent of the plaintiff for the sale. It has been observed in that case at page 421: