JAMPALA PAKEERAIAH Vs. KATURU VENKATESWARARAO

JUDGEMENT

(1.) The important question of law that arises for decision in the appeal is whether when an alienation effected by a father is set aside at the instance of the sons, the purchaser in possession is bound to pay mesne profits from the date of the alienation. There is a conflict of authority on the point. In Subba Goundan v. Krishnamachari, ILR 45 Mad 449: (AIR 1922 Mad 112,) It was held at p. 465 (of ILR Mad) : (at p. 118 of AIR) that the sale effected by a father or managing member of the joint family will be good till avoided, as it is open to other copartners to affirm the transaction. Following the decision of the Allahabad High Court in Bhirgu Nath Chaube V. Narsingh Tewari, ILR 39 All 61: (AIR 1917 All 479) the learned Judges limited the claim for mesne profits from the date of suit as there was no repudiation before the suit. The same "view was taken by the Madras High Court in Ganesa Aiyar v. Amirathasami, AIR 1918 Mad 178, and the learned Judges held that as mesne profits are in the nature of damages, each case must be dealt with on merits. In Ramaswami Aiyar v. Venkatarama Aiyar, ILR 48 Mad 815 : (AIR 1924 Mad 81) it was held that as the sale by the manager of the family is not prima facie void but only avoidable at the instance of the other members of the family, the plaintiff is not entitled to any mesne profits until the date of the suit. In Mullas Hindu Law, 12th edition, at p. 406, the law is set out in the following terms :

(2.) The circumstances under which this question arose in this case may be briefly set out. The two sons of one Katuru Venkatappaiah challenged the alienation made by their father, who is impleaded as the first defendant in O. S. No. 141 of 1950 on the file of the Subordinate Judges Court, Tenali, in favour of the second and third defendants, on the ground that they were not for a justifiable or a necessary purpose. It is not necessary to refer to the defence set up by the defendants, as it has no bearing on the present enquiry. Ultimately, the sales were set aside on the ground that the requirement of legal necessity or benefit to the family was wanting in the case. The trial Court also decided that defendants 2 and 3 were liable to the plaintiffs for their share of the profits from out of items 1 and 2 of the plaint schedule property from the dates of the respective sales till the date of recovery of possession of their shams of the property.

(3.) An appeal was filed by the aggrieved defendants to this Court only in regard to mesne profits. When it came on for hearing before our learned brother, Umamaheswaram J. he thought that there was a conflict between two sets of decisions of the Madras High Court on the question as to the liability of an alienee from the father or the manager of a joint Hindu family to mesne profits from the date of sale. He therefore, referred the matter to a Bench.