G GOVINDARAJU MUDALIAR Vs. VINAYAK MUDALIAR

JUDGEMENT

(1.) THIS second appeal has been referred to a Bench as it raises a question of general importance, namely, whether Section 53-A of the Transfer of Property Act would apply to art agreement signed by a manager of a Hindu joint family on behalf of other members of the family without describing himself as such. The short facts that are necessary for the disposal of this interesting question are the following: The suit property originally belonged to one Krishnaswami Mudaliar and his three sons Swammatna, Damodara and Pinagapani. Krishnaswami Mudaliar and his eldest son Swaminatha executed an usufructuary mortgage in favour of one Sundararajan. Sundararajan, the usufructuary mortgagee, entered into an agreement to assign his mortgage rights to Jeeevaratnammal (the 2nd defendant in the suit) and Chellammal, the wives of the first defendant in the suit for a sum of Rs. 240 on 19-2-1940. After the death of Krishnaswami Mudaliar, Swaminatha, his eldest son, executed an agreement Ex. B-8 to sell the suit property to jeevarathnammal and Chellammal subject to the rights of the usufructuary mortgagee and decree debt in favour of one Ayyavu Naidu. Later in pursuance of the agreement entered into with Sundararajan, Jeevaratnammal and Chellammal got an assignment of the mortgage rights on 94-1940 from Sundararajan. Swaminatha evaded and failed to execute a regular sale-deed in favour of jeevaratnammat and Cheliammal as per his agreement entered into with them on 5-4-1940. On the other hand, Swaminatha and his two brothers entered into a separate transaction by way of a sale of the very same property in favour of the 4th defendant on 25-3-1946 for a sum of Rs. 1000. The 4th defendant in his turn sold the property for a sum of Rs. 2500 to the plaintiff by a registered sale deed ex. A-3 on 11-12-1948. The plaintiff has filed the present suit for a declaration of his title to the property by reason of his purchase under Ex. A-3 and for directing the defendants to deliver possession of the suit property to him.

(2.) THE suit is resisted by the defendants on the ground that the plaintiff's vendor had full knowledge of the prior agreement Ex. B-8, that the sale in favour of the 4th defendant (Ex. A-1) was a nominal transaction and as such the 4th defendant had no title to the property, me defendants 1 to 3 got into possession of the property in pursuance of Ex. B-8 in part performance thereof and the suit is therefore not maintainable and is liable to be dismissed.

(3.) ON these pleadings the parties went to trial, me suit was at first dismissed by the trial court, but that decision was reversed on appeal. Defendants 1 to 3 took the matter on second appeal to the High Court and the High Court remanded the case to the trial court for fresh disposal. When the suit came for trial after remand the trial court found that Swaminatha and his two brothers constituted members of the Hindu joint family, that the agreement Ex. B-8 was executed while swaminatha and Ms two brothers were living as members of a joint family, that the purpose of the agreement was to discharge the mortgage debt binding on the family, that Swaminatha as the manager of the family was competent to deal with, the property for consideration and necessity, that in pursuance of the agreement ex. B-8 the defendants 1 to 3 were put in possession of the property and that they are entitled to invoke Section 53-A of the Transfer of Property Act. The trial court accordingly dismissed the suit. The lower appellate court agreeing with the findings of the trial court dismissed the appeal preferred by the plaintiff. The plaintiff has preferred this second appeal against the judgment and decree of the lower courts and has raised an interesting question of law whether Section 53-A would be applicable to the facts of this case when Swaminatha alone has executed ex. B-8 in favour of the 2nd defendant and another without making any reference in the document to his status in the family or as on behalf of the family.