JAGRUP KOERI Vs. RAM SUNDAR TEWARI

JUDGEMENT

(1.) THE following pedigree is admitted by the parties.

(2.) IT has been found that Dhauntal, Jagrup and Buddhu were the members of a joint Hindu family. Dhauntal, under a sale-deed dated the 4 of August 1906, sold his share in the family property to the defendants. The sale-deed was in the name of Ram Sundar Tewari, and other defendants were made parties to the suit because they were members of the joint Hindu family of Ram Sundar Tewari. Jagrup and Buddhu brought the suit for the cancellation of the sale-deed and for possession of their share in the property sold. The allegations in the plaint with which I am concerned in this appeal are that the property was sold without consideration and without the consent of the plaintiffs, members of the joint Hindu family, and that the sale was not for any family necessity (zarurat khandani) whereby the plaintiffs were benefited. The pleas raised in defence were that Dhauntal was the karta of the family and that he took the money for valid and legal necessities. The Court of first instance decreed the claim on the ground that Dhauntal did not borrow the money as a karta of the family and that, therefore, the transfer made by him was not binding upon the family. There was an appeal to the lower appellate Court by the defendants as well as objections, under Section 561, C.P.C., by the plaintiffs. The lower appellate Court reversed the decree of the first Court. The findings, of, the lover appellate Court are in substance as follows: That Dhauntal sold the property for the family necessities whereby the plaintiffs were benefited, that Dhauntal was the karta of the family, and that he sold the share in that capacity, The plaintiffs have preferred this second appeal, and their, learned Vakil has urged two,. points before me. The first is that there is, no evidence to support the finding that,. the sale was made for the, family necessities whereby the plaintiffs were benefited. The second; is that as Jagrup was of age, at the time, the sale-deed was executed by Dhauntal without, his (Jagrup s) consent the sale is not binding upon him so. (far as his., share is concerned.., On the first point.-. taken before me, it is sufficient to. say that the evidence of, Ram Nath Tewari and Bachu, Tewari support the finding, that there was legal necessity. IT is a different, question, altogether whether I would arrive, at. the same conclusion if the case were before me in first appeal. As there is evidence to support the finding, I am bound by that finding and cannot go behind it in second appeal. In support of the second plea the learned Vakil for the appellants relies on the text of Mitakshara cited in the judgment of the Full Bench of this Court in Chandradeo Singh V/s. Mata Prasad 31 A. 176 : 1 Ind Cas. 479 : 6 A.L.J. 263 and on Muthoora Koonwaree V/s. Bootun Singh 13 W.R. 31 in which the same text is quoted. He also relies on the observations made by their Lordships of the Privy Council in Suraj Bansi Koer V/s. Sheo Persad Singh 5 C. 148 at p. 165 : 4 C.L.R. 226 : 6 I.A. 88 IT is not so clearly settled whether, in order to bind adult co-parceners, their express consent is not required." He also relies on Gharibullah V/s. Khalak Singh 25 A. 407. The learned Vakil for the respondents relies on Jagan Nath V/s. Mannu Lal 16 A. 231 in which it is remarked at page 233: "As such manager (Karta) he fully represented the family and in the absence of fraud or collusion, which has not even been suggested in this case, his acts are binding on the other members of the family." On the authority of this passage the learned Vakil for the respondents argues that the sale effected by the Karta in the present case is binding upon the plaintiff notwithstanding the fact that Jagrup was not a minor when the sale was made. He also relies upon Phul Chand V/s. Man Singh 4 A. 309 in which a Bench of this Court has very clearly laid down that there is no distinction between adult and minor members of a joint Hindu family so far as transfers by the manager of the family for family necessities are concerned. That Bench after giving very cogent reasons for the absence of such distinction remarks on page 314 as follows: However, until we are set right by higher authority, we are not prepared to apply a different test to the case of adult sons to that which now, by a series of decisions, appears to be the proper one to adopt in the case of minors." The head note of the report in Chandradeo Singh V/s. Mata Prasad 31 A. 176 : 1 Ind Cas. 479 : 6 A.L.J. 263 in my opinion, favours the proposition that sale made by a "karta of a joint Hindu family if for family necessity would be binding upon other members of the family. The passage in the judgment of their Lordships of the Privy Council in Gharibullah V/s. Khalak Singh 25 A. 407 on which the learned Vakil for the appellant relies is, as follows: "The karta of an undivided Mitakshara family with the concurrence of the adult members of the family can mortgage family property for family purposes in case of necessity so as to charge the property as against all the members of the family." But their Lordships of the Privy Council do not lay down that a hurta of such a family, without the consent of adult members of the family has no power to mortgage the property for family necessity. In my opinion the nature of the position of a karta entitles him to do all the acts which are necessary for the maintenance or preservation of the family and that there ought to be no distinction between minor and major co-parceners of such family so far as the question of their consent to a sale for family necessities is concerned. Having regard to the ruling of this Court in Phul Chand V/s. Man Singh 4 A. 309. I am not prepared to place the interpretation, for which: tile learned Vakil for the appellants contends, upon paragraph 29 quoted from the Mitakshara on page 212 of the Full Bench ruling in Clumdradeo Singh V/s. Mata Prasad 31 A. 176 : 1 Ind Cas. 479 : 6 A.L.J. 263. The result is that I dismiss the appeal with costs including fees in this Court on the higher scale.