SATHAPAN AMBALAM Vs. VADIVELU PILLAI

JUDGEMENT

(1.) In this second appeal I have arrived at the conclusion that it should be allowed. The defendant who is the appellant before us was the purchaser of certain properties described as a fractional share in a certain village. The plaintiff has claimed on partition a share as assignee from one of the members of the family to which these properties originally belonged. The District Munsif dismissed the plaintiff's suit, but on appeal that was reversed and a decree for partition was made by the lower appellate Court and hence this appeal.

(2.) The learned vakil for the appellant has drawn our attention to two decisions of their Lordships of the Judicial Committee in Sri Krishan Das V/s. Nathu Ram and Niamat Rai V/s. Din Dayal . The legal principle that emerges from a careful consideration of these two decisions of their Lordships is that when the question that arises is whether a sale by either the father or the manager of a joint family entitled only in certain circumstances to alienate the entire family property is binding, the proper thing to be considered is whether the circumstances under which the power was purported to be exercised were such that he could validly exercise the power. Once the power is held to be properly exercised, no further question arises as regards the necessity for the sale or the utilization of any balance out of the consideration either received by the vendor or with regard to which there is no finding that it was necessary either for family purposes or otherwise.

(3.) Numerous cases have been cited both in this Court and elsewhere where the Court has taken the view in respect of alienations, whenever, the alienation is found to be supported by necessity to a particular extent, either to allow the alienee to keep the property obliging him to pay the other party the amount in respect of which it was held the alienation was not properly supported or allow the person seeking to set aside the alienation to take the property or the particular share thereof on condition of his paying to the alienee the amount up to which the alienation purported to have been made is found to be binding. It is not as if in all these cases the question was lost sight of entirely by the Court or by the learned Judges that alienations of property might be held to be binding if substantially the sale was for purposes binding on the family. It is in the course of determining this latter question, namely, whether in the particular circumstances of a particular case it could be said that the sale was substantially for purposes binding on the family that recourse was had to examining the value of the property and the amount of the necessity found for alienation. Though no doubt such considerations may have been useful in particular eases, what their Lordships of the Judicial Committee have laid down clearly is this: that if the sale should be found to be substantially for purposes binding on the family, the mere fact that in respect of a small portion of the consideration no necessity has been proved or shown cannot affect the sale or the exercise of the power of sale. With regard to this as observed properly by the learned vakil for the respondent, each case has got to be determined on its own facts and no useful purpose is likely to be served by referring to the facts of various other cases. After all, if we should seek for a principle on which Courts of law can hold whether or not in particular cases alienations were substantially for necessity it seems to me that the matter can be looked at in this way. If a man of ordinary prudence, who is the ideal of the law, in respect of his own property or in respect of property which he is in charge of as manager of the family would in those circumstances have alienated the property for the purpose of raising the amount required for the interests of the family, then it follows that it must be considered as a case where the sale was substantially for necessity. If the facts, however, should turn put to be that the sale or transaction was obviously so imprudent that no man of ordinary prudence would have entered into such a transaction in respect of any such property, then it follows that it was a case in which the power was wrongly exercised or purported to be. I do not therefore propose to enter into any detailed examination of the various cases cited by the learned vakil for the respondent.