PRANLAL BHAGWANDAS Vs. CHAPSEY GHELLA

JUDGEMENT

(1.) This is a vendor-purchaser summons. By an agreement dated April 30, 1943, between the plaintiff and the defendants, the defendants agreed to sell and the plaintiff agreed to purchase from the defendants an immovable property belonging to the defendants situate at Lamington Road, Bombay, fox a price of Rs, 1,45,000. The material clauses of the agreement, With which I am concerned in this summons, are els. 5 and 10. Clause 5 says: The vendors shall make out a marketable title to the said land hereditaments and premises agreed to be sold. The vendors shall get in all outstanding estates and clear all defects in title at their own expense including all claims by way of sale, exchange, mortgage, gift, trust, inheritance, possession, lease, lien or otherwise. The vendors shall obtain an order of the Court for sale of this property on behalf of the minor Gangji Chapsey at their own costs. Until such order is obtained the purchaser "will not incur any costs for investigation of title. Such order must be obtained within two months and three months time will run from the date of the order. " Clause 10 says : The vendors shall get the consent of all persons interested in the premises agreed to be sold and shall get the documents duly executed by them.

(2.) It seems that one Ghella Ashar had two sons, Chapsey Ghella and Meghji Ghella. We are concerned only with Chapsey Ghella who is defendant No. 1 to the summons and his branch of the family. The property agreed to be sold admittedly belongs to the joint family of which Chapsey Ghella is the karta. Chapsey Ghella has two sons, Bhawanji and Gangji, defendants Nos. 2 and 3. These are the only male members of the joint family. Besides these male members, the female members of the joint family are! the wife of Chapsey Ghella, Panbai; the wife of Bhawanji,. Dewkabai; and a minor daughter of Bhawanji by the name of Nirmala ; two married daughters of Chapsey, Manibai and Umerbai, with whom really we are not concerned ; and an unmarried daughter by the name of Monghibai. Defendant No, 3 was a minor till February of this year. An application was made to the Chamber Judge, Mr. Justice Coyajee, under the inherent jurisdiction of this Court, to sanction, the sale of this property as being for the benefit of the minor Gangji and for appointing his father Chapsey as guardian so that he could convey, his right title and interest to the purchaser. On this application Mr. Justice Coyajee made an order on August 9, 1943, declaring that the agreement for sale was for the benefit of the minor Gangji and appointing Chapsey as the guardian of the interest of Gangji in the joint family property.

(3.) The contention put forward by the plaintiff is that he is advised that having regard to the existing state of the law in that behalf the female members of the joint family have a right to maintenance not only from the male members personally but also out of the property in their hands, that they can pursue the property even in the hands of a stranger who had purchased it with a notice of their claim and that a bare notice of the existence of such a right is sufficient to make it a burden on the property in the hands of the transferee. It is further urged by the plaintiff that as a large surplus would remain over from the sale-proceeds after the payment of the debts which only amount to Rs. 90,000, though the female members would not be in"a position to impugn the sale of the property so far as it is necessary to pay and satisfy the debts, yet nevertheless so far ad the right to maintenance and marriage expenses are concerned, the surplus sale-proceeds which in this case amount to about Rs. 50,000 or the corresponding proportionate part of the property even "in the hands of the purchaser may become liable to pay the burden of maintenance and marriage expenses of the female members of the family. Mr. Bhagwati has told me that his client is a willing purchaser; but he is anxious to avoid,; as every purchaser is anxious to avoid, purchasing litigation, and he wants the position to be made clear on this originating summons.