KESAVALU NAIDU Vs. NAGARATHNAM

JUDGEMENT

(1.) THE appellants sued for recovery of the properties covered by B schedule to the plaint on a claim that the sale thereof by their mother on 25th June 1943, was not for necessity of for the benefit of the estate and, therefore, not binding on them. The suit was resisted by defendants 1 to 3 (respondents 1 to 3) of whom the, first is the son of Krishnayya Naidu in whose favour the sale was executed, the second and the third are his wife and undivided brother respectively, asserting that the sale was supported by necessity and was beneficial to the estate and that the suit was also barred by limitation. The Court below accepted the defence on those points and dismissed the suit. The fourth respondent who is a brother of the appellants was impleaded as a defendant as according to them he would not cooperate with them.

(2.) THE main point argued before us on behalf of the appellants is whether the sale in favour of Krishnayya Naidu was supported by necessity or it was for the benefit of the Estate. Chengalvaraya Naidu, the father of the appellants, had executed a usufructuary mortgage on 26th May 1941, over the said properties securing repayment of a sum of Rs. 3000. The sale effected in favour of Krishnayya Naidu by the mother as guardian of the appellants and the fourth respondent, who were then minors, was for a sum of Rs. 4500 out of which Rs. 3150 went in discharge of the earlier usufructuary mortgage, Rs. 350 was received by the vendor for the purpose of paying the plaintiffs' maternal grand-father in consideration of his having discharged two decrees for that total sum which had been obtained against chengalvaraya Naidu before his death and another sum of Rs. 150 was applied in discharge of a mortgage dated 11th February 1942, executed by the appellants' mother over her own property. For the balance of the purchase money, namely, Rs. 1000, Krishnayya Naidu executed a promissory note. It is stated that a suit was instituted for recovery of this sum due under the promissory note, but, for the purpose of the present appeal we are not concerned with the details of that suit or its result. The usufructuary, mortgage provided a period of ten years for redemption. Though the bulk of the sale consideration went in discharge of the antecedent debts of chengalvaraya Naidu, it is contended that having regard to the fact that there was no pressure upon the estate and there was no benefit to the estate the sale could not be supported as binding on the appellants. In support of this contention, learned counsel for the appellants relied on Pandharinath v. Ramachandra, AIR 1931 Bom 157 and Bansilal v. Shivlal,

(3.) IT is well established that the power of a manager of a Hindu joint family or a guardian of minors, under the Hindu law, to sell or charge a property belonging to a co-parcenary or the minors is a limited and qualified one. Such a parson can properly exercise his power only in a case of necessity or for the benefit of the estate. In considering that question the pressure on the estate, the danger to be averted or the benefit to be conferred upon the estate should of course be taken, into account. We do not think it necessary to refer to, authorities in support of these propositions. The question, however, is whether where a father who is a coparcener executed a usufructuary mortgage to secure a debt of his, his widow and guardian of his minor sons can notwithstanding a stipulation in, the deed that the mortgage was redeemable after a specified period could properly sell the charged property for discharging that mortgage even before expiry of that period. In such a case, no doubt there could possibly have been no demand from the creditor to pay the debt and in that sense there could also have been no pressure upon the estate. But can it be said that the circumstance in itself is conclusive on the question of necessity? the Bombay High Court in AIR 1931 Bom 157, was apparently inclined to the view that in such a case unless it was shown that there was actual pressure, the mere fact that the sale was for the purpose of discharging an antecedent debt would not make it binding on the minors. To the same effect is in which the mortgage provided a period of two years for redemption but the sale of the property was before expiry of that period. It was held that the sale could not be justified because there was no pressure upon the vendor for repayment of the debt. It does not appear from the reports of these two cases whether or not there were other assets or means for payment of the debt. In our opinion whether in such a case the sale could be held to be for necessity would depend upon not merely whether there was pressure on the estate but whether there were other circumstances present which showed that though there was no immediate pressure for repayment there were no other means or way of paying off the antecedent debt. We think also that in such circumstances it is not necessary for the sale to be binding that the purchaser should show that there was no alternative for the vendor but perforce to sell the property. Even that extreme test appears to be satisfied in the present case.