Posted On by &filed under Supreme Court of India.


Supreme Court of India
Balmukand vs Kamla Wati & Ors on 27 January, 1964
Equivalent citations: 1964 AIR 1385, 1964 SCR (6) 321
Author: M R.
Bench: Mudholkar, J.R.
           PETITIONER:
BALMUKAND

	Vs.

RESPONDENT:
KAMLA WATI & ORS.

DATE OF JUDGMENT:
27/01/1964

BENCH:
MUDHOLKAR, J.R.
BENCH:
MUDHOLKAR, J.R.
SUBBARAO, K.

CITATION:
 1964 AIR 1385		  1964 SCR  (6) 321
 CITATOR INFO :
 E	    1978 SC 300	 (8)
 D	    1980 SC 645	 (5)


ACT:
Contract   by  manager	to  sell  joint	  property--Specific
Performance when ordered--Hindu Law--Joint family.



HEADNOTE:
The appellant entered into a contract with the karta for the
purchase  of  property belonging to a  joint  Hindu  family.
This  property consisted of a fractional share belonging  to
the family in a large plot of land.  Earnest money was	paid
to  the karta.	As the karta did not execute the  sale	deed
the  appellant instituted a suit for  specific	performance.
The other members who are the brothers of the karta and	 who
were adults
 (1) A.I.R. 1962 Raj 3.
 (2) 1959 All. L.J. 340.
 134--159 S.C.--21
322
at the time of the contract were also impleaded in the	suit
as  defendants.	  The suit was resisted on the	ground	that
there was no legal necessity and that the contract for	sale
was  not for the benefit of the family.	 The trial court  as
well as the High Court upheld these contentions.
Before	this Court it was contended that even  though  there
was  no legal necessity the transaction was for the  benefit
of  the	 family	 which	the karta as  a	 prudent  owner	 was
entitled to enter into for the benefit of the family.
Held:(i) For a transaction to be regarded as one which is of
benefit	 to the family it need not necessarily be only of  a
defensive character, but what transactions would be for	 the
benefit	 of  the  family  would	 depend	 on  the  facts	 and
circumstances of each case.  In each case the Court must  be
satisfied  from the material before it that it was  in	fact
such  as  conferred or was necessarily	expected  to  confer
benefit on the family at the time it was entered into.
(ii) No	 part of the joint family property could  be  parted
with  or  agreed  to be parted with by the  manager  on	 the
ground of alleged benefit to the family when the transaction
is opposed by the adult members of the family.
(iii)In	 the  present case the appropriate  pleas  were	 not
raised by the plaintiff nor the necessary evidence led.	 The
granting of specific performance is always in the discretion
of  the court.	In the facts and circumstances of  the	case
the  courts  below  were  justified  in	 refusing  to  order
specific performance and the appeal is dismissed.
Jagatnarain  v.	 Mathura Das, I.L.R. 50 All.  969,  Honooman
Prasad	Pandey	v. Babooee Munraj Koonwaree, (1856)  6	Moo.
I.A. 393 Sahu Ram Chandra v. Bhup Singh, I.L.R. 39 All. 437,
Palaniappa   Chetty   v.  Sreemath   Daiyasikamony   Pandara
Sannadhi, 44 I.A. 147, Sital Prasad Singh v. Ajablal Mander,
I.L.R.	18 Pat. 306 and In the matter of A. V.	Vasudevan  &
Ors.  Minors.  A.I.R. 1949 Mad. 260. referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7 of 1962.
Appeal from the judgment and decree dated October 14, 1957
of the Punjab High Court in R.F.A. No. 219 of 1950.
N. C. Chatterjee, H. L. Mittal, S. S. Khanduja and Ganpat
Rai, for the appellant.

Ram Lubhaya and S. D. Sekhri, for respondents Nos. 1-12.
S. K. Mehta and K. L. Mehta, for respondents Nos. 13-15.

323

January 27, 1964. The Judgment of the Court was
delivered by
MUDHOLKAR J.-This is a plaintiff’s appeal from the dismissal
of his suit for specific performance of a contract for the
sale of 3/20th share of land in certain fields situate in
Mauza Faizpur of Batala in the State of Punjab. He had
instituted the suit in the court of Sub-Judge, First Class,
Batala, who dismissed it in its entirety. Upon appeal the
High Court of Punjab, while upholding the dismissal of the
plaintiff’s claim for specific performance, modified the
decree of the trial court in regard to one matter. By that
modification the High Court ordered the defendants to repay
to the plaintiff the earnest money which he had paid when
the contract of sale was entered into by him with Pindidas.
It may be mentioned that Pindidas died during the pendency
of the appeal before the High Court and his legal
representatives were, therefore, substituted in his place.
Aggrieved by the dismissal of his claim for specific perfor-
mance the plaintiff has come up to this Court by a certi-
ficate granted by the High Court, under Art. 133 of the
Constitution.

The relevant facts are these:

The plaintiff owned 79/120th share in Kasra Nos. 494, 495,
496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi
of 1943-43, situate at Mauza Faizpur of Batala. On October
1, 1943 he purchased 23/120th share in this land belonging
to one Devisahai. He thus became owner of 17/20th share in
this land. The remaining 3/20th share belongs to the joint
Hindu family of which Pindidas was the Manager and his
brother Haveliram Khemchand and Satyapal were the members.
According to the plaintiff he paid Rs. 175 per marla for the
land which he purchased from Devisahai. In order to
consolidate his holding, the plaintiff desired to acquire
the 3/20th share held by the joint family of Pindidas and
his brothers. He, therefore, approached Pindidas in the
matter and the latter agreed to sell the 3/20th share be-
longing to the family at the rate of Rs. 250 per marla.The
contract in this regard was entered into on October 1,
324
1945 with Pindidas and Rs. 100 were paid to him as earnest
money. As the manager of the family failed to execute the
sale deed in his favour, the plaintiff instituted the suit
and made Pindidas and his brothers defendants thereto.
The suit was resisted by all the defendants. Pindidas
admitted having entered into a contract of sale of some land
to the plaintiff on October 1, 1945 and of having received
Rs. 100 as earnest money. According to him, however, that
contract pertained not to the land in suit but to another
piece of land. He further pleaded that he had no right to
enter into a contract on behalf of his brothers who are
defendants 2 to 4 to the suit and are now respondents 13 to
15 before us. The defendants 2 to 4 denied the existence of
any contract and further pleaded that even if Pindidas was
proved to be the karta of the joint family and had agreed to
sell the land in suit the transaction was not binding upon
them because the sale was not for the benefit of the family
nor was there any necessity for that sale. The courts below
have found in the plaintiff’s favour that Pindidas did enter
into a contract with him for the sale of 3/20th share of the
family land in suit and received Rs. 100 as earnest money.
But they held that the contract was not binding on the
family because there was no necessity for the sale and the
contract was not for the benefit of the family.
It is not disputed before us by Mr. N. C. Chatterjee for the
plaintiff that the defendants are persons in affluent cir-
cumstances and that there was no necessity for the sale.
But according to him, the intended sale was beneficial to
the family inasmuch as it was not a practical proposition
for the defendants to make any use of their fractional share
in the land and, therefore, by converting it into money the
family stood to gain. He further pointed out that whereas
the value of the land at the date of the transaction was Rs.
175 per marla only the plaintiff had agreed under the
contract to purchase it at Rs. 250 per marla the family
stood to make an additional gain by the transaction. The
substance of his argument was that the Manager of a joint
325
Hindu family has power to sell the family property not only
for a defensive purpose but also where circumstances are
such that a prudent owner of property would alienate it for
a consideration which he regards to be adequate.
In support of his contention he has placed reliance on three
decisions. The first of these is Jagatnarain v. Mathura
Das(1). That is a decision of the Full Bench of that High
Court in which the meaning and implication of the term
“benefit of the estate” is used with reference to transfers
made by a Manager of a joint Hindu family was considered.
The learned Judges examined a large number of decisions,
including that in Hanooman Persaud Pandey v. Babooee Munraj
Koonweree(2); Sahu Ram Chandra v. Bhup Singh(3) and
Palaniappa Chetty v. Sreemath Daivasikamony Pandra
Sannadhi(4) and held that transactions justifiable on the
principle of benefit to the estate are not limited to those
which are of a defensive nature. According to the High
Court if the transaction is such as a prudent owner of
property would, in the light of circumstances which were
within his knowledge at that time, have entered into, though
the degree of prudence required from the manager would be a
little greater than that expected of a sole owner of
property. The facts of that case as found by the High Court
were:

“…….. the adult managers of the family
found it very inconvenient and to the
prejudice of the family’s interests to retain
property, 18 or 19 miles away from Bijnor, to
the management of which neither of them could
possibly give proper attention, that they
considered it to the advantage of the estate
to sell that property and purchase other
property more accessible with the proceeds,
that they did in fact sell that property on
very advantageous terms, that there is nothing
to indicate that the transaction would not
have reached a profitable conclusion . . .”
(P. 979).

(1) I.L.R. 50 All. 969. (2)(1816) 6 Moo. I.A.393.
(3) I.L.R. 39 All 437. (4)44 I.A.147.

326

We have no doubt that for a transaction to be regarded as
one which is of benefit to the family it need not neces-
sarily be only of a defensive character. But what transac-
tion would be for the benefit of the family must necessarily
depend upon the facts of each case. In the case before the
Full Bench the two managers of the family found it difficult
to man-age the property at all with the result, apparently,
that the family was incurring losses. To sell such pro-
perty, and that too on advantageous terms, and to invest the
sale proceeds in a profitable way could certainly be re-
garded as beneficial to the family. In the present case
there is unfortunately nothing in the plaint to suggest that
Pindidas agreed to sell the property because he found it
difficult to manage it or because he found that the family
was incurring loss by retaining the property. Nor again is
there anything to suggest that the idea was to invest the
sale proceeds in some profitable manner. Indeed there are
no allegations in the plaint to the effect that the sale was
being contemplated by any considerations of prudence. An
that is said is that the fraction of the family’s share of
the land owned by the family bore a very small proportion to
the land which the plaintiff held at the date of the
transaction. But that was indeed the case even before the
purchase by the plaintiff of the 23/120th share from
Devisahai. There is nothing to indicate that the position
of the family vis-a-vis their share in the land had in any
way been altered by reason of the circumstance that the
remaining 17/20th interest in the land came to be owned by
the plaintiff alone. Therefore, even upon the view taken in
the Allahabad case the plaintiff cannot hope to succeed in
this suit.

The next case is Sital Prasad Singh v. Ajablal Mander(1)
That was a case in which one of the questions which arose
for consideration was the power of a manager to alienate
part of the joint family property for the acquisition of new
property. In that case also the test applied to the
transaction entered into by a manager of a joint Hindu
family was held to be the same, that is, whether the
transaction was one into which a prudent owner would enter
in the ordinary
(1) I.L.R. 18 Pat. 306.

327

course of management in order to benefit the estate.
Following the view taken in the Allahabad case the learned
Judges also held that the expression “benefit of the estate”
has a wider meaning than mere compelling necessity and is
not limited to transactions of a purely defensive nature.
In the course of his judgment Harries C.J. observed at p.
311:

“. . . . . the karta of a joint Hindu family
being merely a manager and not an absolute
owner, the Hindu law has, like other systems
of law, placed certain limitations upon his
power to alienate property which is owned by
the joint family. The Hindu law-givers,
however, could not have intended to impose any
such restriction on his power as would
virtually disqualify him from doing anything
to improve the conditions of the family. The
only reasonable limitation which can be
imposed on the karta is that he must act with
prudence, and prudence implies caution as well
as foresight and excludes hasty, reckless and
arbitrary conduct.”

After observing that the transaction entered into by a
manager should not be of a speculative nature the learned
Chief Justice observed:

“In exceptional circumstances, however, the
court will uphold the alienation of a part of
the joint family property by a karta for the
acquisition of new property as, for example,
where all the adult members of the joint
family with the knowledge available to them
and possessing all the necessary information
about the means and requirements of the family
are convinced that the proposed purchase of
the new property is for the benefit of the
estate.”

These observations make it clear that where adult members
are in existence the judgment is to be not that of the
manager of the family alone but that of all the adult mem-
bers of the family, including the manager. In the case be-
fore us all the brothers of Pindidas were adults when’ the
328
contract was entered into. There is no suggestion that they
agreed to the transaction or were consulted about it or even
knew of the transaction. Even, therefore, if we hold that
the view expressed by the learned Chief Justice is right it
does not help the plaintiff because the facts here are
different from those contemplated by the learned Chief
Justice. The other Judge who was a party to that decision,
Manokarlal J., took more or less the same view.
The third case relied on is In the matter of A.T. Vasudevan
& Ors., minors(1). There a single Judge of the High Court
held that the manager of joint Hindu family is competent to
alienate joint family property if it is clearly beneficial
to the estate even though there is no legal necessity
justifying the transaction. This view was expressed while,
dealing with an application under cl. 17 of Letters Patent
by one Thiruvengada Mudaliar for being appointed guardian of
the joint family property belonging to, inter alia, to his
five minor sons and for sanction of the sale of that pro-
perty as being beneficial to the interests of the minor
sons. The petitioner who was karta of the family had,
besides the five minor sons, two adult sons, his wife and
unmarried daughter who had rights of maintenance. It was
thus in connection with his application that the learned
Judge considered the matter and from that point of view the
decision is distinguishable. However, it is a fact that the
learned Judge has clearly expressed the opinion that the
manager has power to sell joint family property if he is
satisfied that the transaction would be for the benefit of
the family. In coming to this conclusion he has based
himself mainly upon the view taken by Venkata Subba Rao J.,
in Sellappa v. Suppan(2). That was a case in which the
question which arose for consideration was whether borrowing
money on the mortgage of joint family property for the
purchase of a house could be held to be binding on the
family because the transaction was of benefit to the family.
While holding that a transaction to be for the benefit of
the family need not be of a defensive character the learned
Judges, upon the evidence before them, held that this
particular transac-

(1) A.I.R. 1949 Mad. 260.

(2) A.I.R. 1937 Mad. 496.

329

tion was not established by evidence to be one for the bene-
fit of the family.

Thus, as we have already stated, that for a transaction to
be regarded as of benefit to the family it need not be of
defensive character so as to be binding on the family. In
each case the court must be satisfied from the material be-
fore it that it was in fact such as conferred or was reason-
ably expected to confer benefit on the family at the time it
was entered into,. We have pointed out that there is not
even an allegation in the plaint that the transaction was
such as was regarded as beneficial to the family when it was
entered into by Pindidas. Apart from that we have the fact
that here the adult members of the family have stoutly re-
sisted the plaintiff’s claim for specific performance and we
have no doubt that they would not have done so if they were
satisfied that the transaction was of benefit to the family.
It may be possible that the land which was intended to be
sold had risen in value by the time the present suit was
instituted and that is why the other members of the family
are contesting the plaintiff’s claim. Apart from that the
adult members of the family are well within their rights in
saying that no part of the family property could be parted
with or agreed to be parted with by the manager on the
ground of alleged benefit to the family without consulting
them. Here, as already stated, there is no allegation of
any such consultation.

In these circumstances we must hold that the courts below
were right in dismissing the suit for specific performance.
We may add that granting specific performance is always in
the discretion of the court and in our view in a case of
this kind the court would be exercising its discretion.
right by refusing specific performance.

No doubt Pindidas himself was bound by the contract which he
has entered into and the plaintiff would have been entitled
to the benefit of s. 15 of the Specific Relief Act which
runs thus:

“Where a party to a contract is unable to
perform the whole of his part of it, and the
part which
330
must be left unperformed forms a considerable
portion of the whole, or does not admit of
compensation in money, he is not entitled to
obtain a decree for specific performance. But
the court may, at the suit of the other party,
direct the party in default to perform
specifically so much of his part of the
contract as he can perform, provided that the
plaintiff relinquishes all claim to further
performance, and all right to compensation
either for the deficiency, or for the loss or
damage sustained by him through the default of
the defendant.”

However, in the case before us there is no claim on behalf
of the plaintiff that he is willing to pay the entire
consideration for obtaining a decree against the interest of
Pindidas alone in the property. In the result the appeal
fails and is dismissed with costs.

Appeal dismissed.


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