Radhakrishnadas v. Kaluram

l\IunHOLKAR, J.-This is an appeal by certificate frf\m the decree of the High Court of Nagpur dismissing the appellants' suit for setting aside sale of two villages mauza Amaldihi and mauza Gondkbami situate in Mungali, tehsiJ, district Bilaspnr. It is com non ground that the two villages, a10:J.J with several others, were the joint family pro.: 'rty of the appellants and their father the third 1962 Ra ihskrisk.11 Jiu v. Kaluram 1961 Radhak,ishnadas .. Kalurum M udho!lcar J. 650 SUPREME COURT REPORT~ [1963] defendant, Gorelal. On April 8, 1944, Gorelal, act­ ing for himself and as guardian of his minor son Balramdas, appellant No. 2 and Radhakrishnadas, appellant No. l describing himself as a major execu­ ted a sale deed in favour of two persons, Pandit Ramlal, son of Motiram, defendant No. 2 and Kalnram the first defendant for a consideration of Rs. 50,000/-. It was stated in the sale deed that the executants were transferring full 16 annas interest in the village Amaldihi and Gondkhami "together with sir and khwlkast lands, grass, lwthar padia gochar rivers, brooks, wells, tanks, bandkies, orchards and gardens and houses and the like, as well ae the cultivated and the uncultivated lands in the village wit.h all the rights and privileges." The entire sixteen annas share in mauza Gondkhami and twelve annas share in mauza Amaldihi was sold to Knluram for Rs. 37,500/- and the remaining four annas sl1are of Amaldihi to Pandit Ramlal for Rs. 12,500/-. Out of the consideration of Rs. 50,000/- a sum of Rs. 30,491/8/- was kept with Kal11ram for satisfying a mortgage decree obtained against the family by one Gayaram in respect of these two villages as well as two other villages. Similarly a further amount of Rs. 2,000/- was all­ owed to be retained by Kaluram for paying the land revenue due in respect of these villages. The balance of the amount was received in cash. It was further stated in the sale deed that this amount was required for performing the marriages of the appellant No. l Radhakrishnadas and Gorelal's dau· ghtc: Ramjibai, who were both stated to be majors. The possession of the property sold was handed over to the defendant l and 2 who are respondents 1 and 2 to the appeal. On May 5, 1945, the two appellants instituted a suit out of which this app(\al arises. It was con­ tended in the suit that since the income of the ,• , ( l S.C.R. SUPREME COURT REPORTS 651 family was Rs. 7,000/. per year, considerable savings "~ , could be made out of it after defraying the expenses of the family. There was, therefore, no necessity for executing the sale deed. It W%s further stated that the consideration for the sale was extremely low, bearing in mind the value of the two villages. It was further stated that the appellant No. 1 who was one of the executants of the sale deed was in fact a minor on the date of its execution and, therefore, the docu· ment is void in so far as his interest in the property sold is concerned. It was then stated that the sale deed did not purport to transfer the cultivating rights in the sir lands in the two villages and, there· fore, in any case only the proprietary interest in the sir land could pass to the respondents 1 and 2 under the sale. The trial court negatived the appellants' con­ tention about the want of legal necessity for the sale and found as a fact that Rs. 10,0JO were required for the marriages of the appellant No. 1 and his sister Ramjibai, Rs. 7, 508-8-0 for paying various creditors, Rs. 1,655-2-0 for the payment of land revenue and the balance to satisfy the mortgage decree of Gayaram Sao. It, however, found that the appellant No. I was a minor at the date of the execution of the sale deed and that its execution by him was void and ineffective. But it held that he is bound by the sale deed as his father Gorelal, who is respondent No. 3 to the appeal, is to be deemed to have executed the sale deed as Manager of the family. It, however, upon a construction of the sale deed, came to the conclusion that cultivating rights in sir were not transferred thereunder and, therefore, p'.1ssed a decree in favour of the appel· lants for p0ssesdion of the sir lands in the suit as these lands had become their ex-proprietary occupancy lands by virtue of s. 49 (1) of the C. P. Tenancy Act, 1920 (C. P. I ofl920). The appellants , preferred an appeal before the High Court against 'that part of the decree which dismissed their claim 1962 Rad ltakriJhna4c• v. Ealuram Mudholkar J. I96Z llA41tak risfrnatlas •• Kuluram Mlldl.olkar J, 652 SUPREME COURT REPORTS [I 963) for the possession of their share in the villages. The respondents 1 and 2 preferred a cross-appeal. These appeals were heard together and while the appellants' appeal was dismissed, that of the res· pondents was allowed. Before us Mr. S. P. Sinha accepts the position that Rs. 45,000/· out of the consideration of Rs. 50,000/· was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His argument is that a sum of Rs. 5,000 or so for which, according to him, legal necessity had not been established was not a negligible part of the consi· deration of Rs. 150,000/-. This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alience is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two deoisiom of the Privy Council. One is Sri Kriahan Da<1 v. Nathu Ram('). In that case the considera­ tion for the alienation was Rs. 35,000/ ·. The alience was able to prove that there was legal necessity only to the extent of Rs. 3,000/· and not for the balance. The High Court held that the alienation could be set aside upon the plaintift"s paying Rs. 3,000/- to the alience. But the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alienoe has to establi3h is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other oases, is that the (I J I L.R. 49 All. H9 (P.C.) 1 S.C.R. SUPREME OOURT REPORTS 6f>3 a.Hence can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself. This decision wa.s followed by the Privy Council in Niamat Bai v. Din Dayal (1) where at p. 602 and 603 it has observed: "It a.ppE>ars from the judgment. of the learned Judges of the High Court that if they had been satisfied that the whole of the Rs. 38,400 paid out of the sale proceeds was paid in discharge of debts incurred before the negotiation of sale, they would have been of opinion that the sale ought to,have been upheld. With this conclusion their Lordships agree, but they a.re of opinion that undue importance was attached by the learned Jud· ges to the question whether some of the pay· ments where made in discharge of debts 'in· curred in the ~nterval between the negotia­ tion of the sale ·and the execution of the sale deed. Even if there had been no joint family business, proof that the property had been sold for Rs. 43,500 to satis(v pre-existing debts to the amount of Rs. 38,000 would have been enough to support ' the sale without showing how the balance had been applied, as held by their Lordships in the recent case of KriskanDas v. Nathu Ram. (1)" Both these decisions state tbe correct legal position, Mr. Sinha.'s argument must, therefore, be rejected. His next argument is that the appellant No. 1 R&dhakrishnadas having been found to be .a minor on the date of the transaction, that transaction cannot bind his interests. If the appellants' father, Gorelal, who was admittedly the manager of the family, had not joined in the sale deed, the appellant No. I could have contended with profit that the transaction does not bind him. As it is, his joining {I) J.L R 8 Lab. S97 lP,C.) (2) 1 L. R. 49. All. 149 (P.C.) 1962 RadAakrishna""3 •• Eoluram M udholkat' I. - 1962 Radhakrishnadas v. Ira/uram Mudho/k¢r J, 654 SUPREME COURT REPORTS (1963) as an executant in the sale deed does not make any difference. The fact that that sale deed had been executed also by his father who was the manager of the family makes the transaction binding upon him just as it is admittedly binding upon his brother, the second appellant, who was then a minor. Mr. Sinha, however, contended that the fact that the appellant No. 1 was required by the alience, respon­ dents 1 and 2. to join in the transaction clearly shows that Gurelal in executini; the sale deed did not and could not act for him. We cannot accept the argument. For ascertaining whether in a parti­ cular transaction the manager purports to act on behalf of the family or in his individual capacity one has to see the nature of the transaction and the purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the tran­ saction entered into by him a junior member of the family, who was a major, or believed to be a major, also joined. It is not unus11al for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections to the transaction are raised by such persons. l!'urther, such circumstance is relevant for being consi­ dered by the court while determining the existence of legal necessity for such a transaction. But that is all. Here we find th!tt Gorelal acted not merely for himself but also expressly for his minor son appellant No. 2. The money was required partly for paying antecedent debts, partly for paying pub· lie demands, partly for paying other creditors and partly for performing the marriages of appellant No. 1 and the latter's sister Ramjibai. It is thus clear that Rs. 45,000/· out of the consideration of Rs. 50,000/- were required for the purposes of the family. Even where such a transaction has been entered into solely by a manager it would be dee­ med to be on behalf of the family and binding on it. The position is not worsened by the fact that 1 S.C.R. SUPREME COURT HEPORTS 655 a junior member joins in the transaction and cer­ tainly not so when the joining in by such junior member proves abortive by reason of the fact that that member has no capacity to enter into the trans­ action because of his minority. In this connection we may make a mention of three dedsions Gharib­ Ullah v. Khalak Singh (1); / T<.anti Ohunder Goswami v. Bisheswar Goswami (2); Bijrai N opani v. Pura Sundary Dasee (3) each of which preceede upon the principle that if one of the ex:e­ cutants to a sale deed or mortgage deed has the capacity to bind the whole estate, the transaction will bind the interest of all persons who have inter­ est in that estate. We have, therefore, no doubt that the second contention of Mr. Sinha is equally devoid of sub­ stance. Lastly, Mr. Sinha contended that the High Court was in error in reversing the decree of the trail court in so far as the sir land is concerned. He has laid particular stress on the fact that the sale deed at no place says in express terms that cultivating rights in sir land have also been trans­ ferred and said that the absence of such a recital in the sale deed clearly entitles the alienors to retain possession of the sir land, under the exception set out in cl. (a) of s. 49 ( 1) of the C. P. Tenancy Act. The relevant portion of s. 49( l) of the Act runs thus: "A proprietor who ...... loses ...... under .••... a transfer ...... his right to occupy his sir land . . . . . . as a proprietor, shall, at the date of such loss, become an occupancy tenant of suoh sir land exoept in the following oases, (a) when a. transfer of such sir land is ma.de (I) I.L.R.. 2S All. 407,415 (P.C.) i2) 2S Cal. 585 F.B. (3) 4-l Cal. 56 (P.C ) I!Jfi2 Radhalu is 1mada1 v. KaJuram .\1udholka1 J. 1968 R•tlhaluisli.ond•• •• Kaiuram Muahlkar J. by him expressly agreeing to transfer his right to cultivate such sir land, ...... " What this provision no doubt requires is an express agreement between the transferor and the trans. feree concerning the transfer of the cultivating rights in sir land. We have already quoted the precise language used in the document describing the inter­ est which has been transferred under the sale deed. The recital shows that the executant of the sale deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with "all rights and privile­ ges''. If the intention was not to transfer the cul­ tivating rights in Bir lan<ls the concluding words were not necessary. Each interest which has been specified in the recital is governed by the con­ cluding words "all the rights and privileges" {ion­ tained in that recital. In the absence of these words what would have passed under the sl).le deed, in so far as the sir land is concerned, would 'have been only the proprietary interest in that land. The question is, what is the effect of the addition of those words ? According to Mr. Sinha they only emphasise the fact that the entire propreitary in the sir land is transferr11d. If we accept the inter­ pretation ·then those words would be rendered oti­ ose. That would not be the right way of interpre­ ting a formal document. To look at it in another way, where a pers!ln transfers sir lands together with "all rights and privileges" therein he transfers everything that he has in that land which must neoessarily include the cultivating right. It would follow from this that where there is a transfer of this kind no kind of interest in Bir land is left in that person thereafter. Mr. Sinha further said that when the statute requires that cultivating rights in Bir land must be expreBBly transferred it makes it obligatory on the parties to say clearly in the doou· ments that cultivating rights in the Bir land have also been transferred. We see no reason for placing 1 S.C.R. SUPREME COURT REPORTS 657 such an interpretation on the provisions of cl. (a) of s. 49(1) of the C. P. Tenancy Act. When it says tha.t the transfer of cultivating rights in sir land has to be made expressly all that it means is that a transfer by implication will not be enough. Finally Mr. Sinha's point is that the words "all the rights and privileges" in the recital do not govern the interests specified in the clause just preceding these words but they govern following words "six­ teen anna. in mauza Gondkhami and twelve a.nna in mauza Amaldihi to Seth Kaluram etc ... .'' Apart from such a construction rendering the expression meaningless it would be ungrammatical to read the expression as applying to ''sixteen anna in mauza Gondkhami and twelve anna in mauza Amaldihi etc." Therefore, there is no substance in the appeal and accordingly we dismiss it with costs. Appeal dWn,issed. AMAR NATH DOGRA v. UNION OF INDIA (B. P. SINHA, c. J., P. B. GAJENDRA.GA.DKAR, K. N. WANOHOO, N. RAJAGOPA.L.A AYYANGAR and T. L. VENKA.TA.RAMA. .A!YAR, JJ.) Suit again•t Government-Notice-Plaint not conforming to Civil Procedure-Maintatnability-Punjab Ezcise Act (Punjab Act I of 1914), S. 40-0ode of Civil Procedure (Act v. of 1908), 8. 80. The appellant who obtained a monoply vend-licence for the retail sale of country-liquor, served during the subsistance of the license a notice under S. 80 of the Civil Procedure Code on the Government claiming damages for the alleged breach of certain stipulations. Thereafter the Excise Authorities 11162 Radhakrishnadtls v. Ealurum MudhollcarJ. 1962 .April JO,