AMRAJ SINGH Vs. SHAMBHU SINGH

JUDGEMENT

(1.) I concur in the conclusion that the mortgage deed in dispute not having been proved to have been for legal necessity or for the benefit of the family, cannot be held to be binding on the defendants.

(2.) It seems to me that the answer to the question is not capable of being stated broadly. On the one hand, it cannot be said that money re mired by the manager of a joint Hindu family in order to pay the pre-emption money and costs for the acquisition of fresh property is in all cases without legal necessity or benefit to the family estate, and is therefore always outside the authority of the father. Nor can it be laid down, on the other hand, that every manager is entitled to borrow money in order to acquire fresh property by pre-emption. The answer to the question must depend on the special circumstances of each case. Where a pre- emption claim is in reality in the nature of a speculation or is not in the best interests of the family, the action of the manager would be without justification. But there may, for instance, be a case where a rival proprietor thing to become a cosharer in the village and thereby causing considerable interference in the management of the family estate, purchases property when it is highly beneficial to the family and the estate, if not actually necessary, to exclude him from the village so as to avoid all future trouble; or there may be a case where a substantial share in he ancestral village has been sold very cheap and its acquisition will bring about a considerable improvement in the comfort and support of the family owning a small share in the village and a better enjoyment of the ancestral share. When satisfied that the acquisition was not speculative, but in the he interests of the family and for its benefit, as well as for the benefit of the family estate, which an ordinary prudent manager would make, it would be open to a Court to bold that the transaction is binding on the other members of the family, even though it is nothing but the raising of a loan on a mortgage of family property for the sake of satisfying the preemption decree.

(3.) A Full Bench of this Court in the case of Jagat Narain V/s. Mathura Das considered the previous authorities and came to the conclusion that transactions justifiable on the principle of benefit to the estate are not limited to those transactions which are of a defensive nature. It must be borne in mind that the same original texts have been differently interpreted under the Mitakshara and the Dayabhaga law, the former restricting the manager's power of alienation to a considerable extent, while the latter giving him almost full disposing power. The text of Brahaspati quoted in the Mitakshara, which allows a transfer of immovable property during a season of distress, for the sake of the family, and specially for pious purposes, has been commented upon in the Mitakshara. The illustrations given by the commentator need not necessarily be exhaustive and may be illustrative only. They have been responsible for a considerable judge- made law based upon the pronouncements of their Lordships of the Privy Council made from time to time. Taking the words "for the sake-of the family" literally, the expression may be even wider in scope than the words "for the benefit of the family." It is to be remembered that the manager of a joint Hindu family, particularly a father, is not merely like an agent of the other members of the family, but is a coparcener and has full power to manage the family property in the most beneficial manner as a prudent owner would do. He represents the family to the outside world, and authority for his actions is not always to be derived from the consent of the other members of the familt, some of whom may be minors, and therefore incapable of giving a valid consent. The authority of the Pull Bench in Jagat Narain V/s. Mathura Das is based on previous case law, and is binding on us so long as it is not overruled by their Lordships of the Privy Council or dissented from by a larger Full Bench.