{"id":254554,"date":"1964-01-27T00:00:00","date_gmt":"1964-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balmukand-vs-kamla-wati-ors-on-27-january-1964"},"modified":"2016-03-19T12:21:14","modified_gmt":"2016-03-19T06:51:14","slug":"balmukand-vs-kamla-wati-ors-on-27-january-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balmukand-vs-kamla-wati-ors-on-27-january-1964","title":{"rendered":"Balmukand vs Kamla Wati & Ors on 27 January, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balmukand vs Kamla Wati & Ors on 27 January, 1964<\/div>\n
Equivalent citations: 1964 AIR 1385, 1964 SCR (6) 321<\/div>\n
Author: M R.<\/div>\n
Bench: Mudholkar, J.R.<\/div>\n
           PETITIONER:\nBALMUKAND\n\n\tVs.\n\nRESPONDENT:\nKAMLA WATI & ORS.\n\nDATE OF JUDGMENT:\n27\/01\/1964\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nSUBBARAO, K.\n\nCITATION:\n 1964 AIR 1385\t\t  1964 SCR  (6) 321\n CITATOR INFO :\n E\t    1978 SC 300\t (8)\n D\t    1980 SC 645\t (5)\n\n\nACT:\nContract   by  manager\tto  sell  joint\t  property--Specific\nPerformance when ordered--Hindu Law--Joint family.\n\n\n\nHEADNOTE:\nThe appellant entered into a contract with the karta for the\npurchase  of  property belonging to a  joint  Hindu  family.\nThis  property consisted of a fractional share belonging  to\nthe family in a large plot of land.  Earnest money was\tpaid\nto  the karta.\tAs the karta did not execute the  sale\tdeed\nthe  appellant instituted a suit for  specific\tperformance.\nThe other members who are the brothers of the karta and\t who\nwere adults\n (1) A.I.R. 1962 Raj 3.\n (2) 1959 All. L.J. 340.\n 134--159 S.C.--21\n322\nat the time of the contract were also impleaded in the\tsuit\nas  defendants.\t  The suit was resisted on the\tground\tthat\nthere was no legal necessity and that the contract for\tsale\nwas  not for the benefit of the family.\t The trial court  as\nwell as the High Court upheld these contentions.\nBefore\tthis Court it was contended that even  though  there\nwas  no legal necessity the transaction was for the  benefit\nof  the\t family\t which\tthe karta as  a\t prudent  owner\t was\nentitled to enter into for the benefit of the family.\nHeld:(i) For a transaction to be regarded as one which is of\nbenefit\t to the family it need not necessarily be only of  a\ndefensive character, but what transactions would be for\t the\nbenefit\t of  the  family  would\t depend\t on  the  facts\t and\ncircumstances of each case.  In each case the Court must  be\nsatisfied  from the material before it that it was  in\tfact\nsuch  as  conferred or was necessarily\texpected  to  confer\nbenefit on the family at the time it was entered into.\n(ii) No\t part of the joint family property could  be  parted\nwith  or  agreed  to be parted with by the  manager  on\t the\nground of alleged benefit to the family when the transaction\nis opposed by the adult members of the family.\n(iii)In\t the  present case the appropriate  pleas  were\t not\nraised by the plaintiff nor the necessary evidence led.\t The\ngranting of specific performance is always in the discretion\nof  the court.\tIn the facts and circumstances of  the\tcase\nthe  courts  below  were  justified  in\t refusing  to  order\nspecific performance and the appeal is dismissed.\nJagatnarain  v.\t Mathura Das, I.L.R. 50 All.  969,  Honooman\nPrasad\tPandey\tv. Babooee Munraj Koonwaree, (1856)  6\tMoo.\nI.A. 393 Sahu Ram Chandra v. Bhup Singh, I.L.R<\/a>. 39 All. 437,\nPalaniappa   Chetty   v.  Sreemath   Daiyasikamony   Pandara\nSannadhi, 44 I.A. 147, Sital Prasad Singh v. Ajablal Mander,\nI.L.R.\t18 Pat. 306 and In the matter of A. V.\tVasudevan  &\nOrs.  Minors.  A.I.R. 1949 Mad. 260. referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7 of 1962.
\nAppeal\tfrom the judgment and decree dated October 14,\t1957
\nof the Punjab High Court in R.F.A. No. 219 of 1950.
\nN.   C. Chatterjee, H. L. Mittal, S. S. Khanduja and  Ganpat
\nRai, for the appellant.\n<\/p>\n
Ram Lubhaya and S. D. Sekhri, for respondents Nos. 1-12.
\nS.   K. Mehta and K. L. Mehta, for respondents Nos. 13-15.\n<\/p>\n
\t\t\t    323<\/span><\/p>\n
January 27, 1964.  The Judgment of the Court was
\ndelivered by
\nMUDHOLKAR J.-This is a plaintiff’s appeal from the dismissal
\nof  his suit for specific performance of a contract for\t the
\nsale  of 3\/20th share of land in certain fields\t situate  in
\nMauza  Faizpur\tof Batala in the State of  Punjab.   He\t had
\ninstituted the suit in the court of Sub-Judge, First  Class,
\nBatala,\t who dismissed it in its entirety.  Upon appeal\t the
\nHigh  Court of Punjab, while upholding the dismissal of\t the
\nplaintiff’s  claim  for specific performance,  modified\t the
\ndecree of the trial court in regard to one matter.  By\tthat
\nmodification the High Court ordered the defendants to  repay
\nto  the plaintiff the earnest money which he had  paid\twhen
\nthe contract of sale was entered into by him with  Pindidas.
\nIt  may be mentioned that Pindidas died during the  pendency
\nof   the  appeal  before  the  High  Court  and\t his   legal
\nrepresentatives\t were, therefore, substituted in his  place.
\nAggrieved by the dismissal of his claim for specific perfor-
\nmance  the plaintiff has come up to this Court by  a  certi-
\nficate\tgranted\t by the High Court, under Art.\t133<\/a>  of\t the
\nConstitution.\n<\/p>\n
The relevant facts are these:\n<\/p>\n
The  plaintiff owned 79\/120th share in Kasra Nos. 494,\t495,
\n496, 497, 1800\/501, 1801\/501 and 529 shown in the  zamabandi
\nof 1943-43, situate at Mauza Faizpur of Batala.\t On  October
\n1,  1943 he purchased 23\/120th share in this land  belonging
\nto one Devisahai.  He thus became owner of 17\/20th share  in
\nthis land.  The remaining 3\/20th share belongs to the  joint
\nHindu  family  of  which Pindidas was the  Manager  and\t his
\nbrother\t Haveliram Khemchand and Satyapal were the  members.
\nAccording to the plaintiff he paid Rs. 175 per marla for the
\nland  which  he\t purchased  from  Devisahai.   In  order  to
\nconsolidate  his holding, the plaintiff desired\t to  acquire
\nthe  3\/20th share held by the joint family of  Pindidas\t and
\nhis  brothers.\t He, therefore, approached Pindidas  in\t the
\nmatter\tand the latter agreed to sell the 3\/20th  share\t be-
\nlonging\t to the family at the rate of Rs. 250 per  marla.The
\ncontract in this regard was entered into on October 1,
\n324<\/span>
\n1945  with Pindidas and Rs. 100 were paid to him as  earnest
\nmoney.\t As the manager of the family failed to execute\t the
\nsale  deed in his favour, the plaintiff instituted the\tsuit
\nand made Pindidas and his brothers defendants thereto.
\nThe  suit  was\tresisted by all\t the  defendants.   Pindidas
\nadmitted having entered into a contract of sale of some land
\nto  the plaintiff on October 1, 1945 and of having  received
\nRs.  100 as earnest money.  According to him, however,\tthat
\ncontract  pertained not to the land in suit but\t to  another
\npiece  of land.\t He further pleaded that he had no right  to
\nenter  into  a contract on behalf of his  brothers  who\t are
\ndefendants 2 to 4 to the suit and are now respondents 13  to
\n15 before us.  The defendants 2 to 4 denied the existence of
\nany  contract and further pleaded that even if Pindidas\t was
\nproved to be the karta of the joint family and had agreed to
\nsell  the land in suit the transaction was not binding\tupon
\nthem because the sale was not for the benefit of the  family
\nnor was there any necessity for that sale.  The courts below
\nhave found in the plaintiff’s favour that Pindidas did enter
\ninto a contract with him for the sale of 3\/20th share of the
\nfamily\tland in suit and received Rs. 100 as earnest  money.
\nBut  they  held\t that the contract was not  binding  on\t the
\nfamily\tbecause there was no necessity for the sale and\t the
\ncontract was not for the benefit of the family.
\nIt is not disputed before us by Mr. N. C. Chatterjee for the
\nplaintiff  that the defendants are persons in affluent\tcir-
\ncumstances  and\t that there was no necessity for  the  sale.
\nBut  according to him, the intended sale was  beneficial  to
\nthe  family inasmuch as it was not a  practical\t proposition
\nfor the defendants to make any use of their fractional share
\nin the land and, therefore, by converting it into money\t the
\nfamily\tstood to gain.\tHe further pointed out that  whereas
\nthe value of the land at the date of the transaction was Rs.
\n175  per  marla\t only the plaintiff  had  agreed  under\t the
\ncontract  to  purchase it at Rs. 250 per  marla\t the  family
\nstood  to make an additional gain by the  transaction.\t The
\nsubstance of his argument was that the Manager of a joint
\n\t\t\t    325<\/span>
\nHindu family has power to sell the family property not\tonly
\nfor  a\tdefensive purpose but also where  circumstances\t are
\nsuch that a prudent owner of property would alienate it\t for
\na consideration which he regards to be adequate.
\nIn support of his contention he has placed reliance on three
\ndecisions.   The  first of these is Jagatnarain\t v.  Mathura
\nDas(1).\t  That is a decision of the Full Bench of that\tHigh
\nCourt  in  which  the meaning and implication  of  the\tterm
\n“benefit of the estate” is used with reference to  transfers
\nmade  by a Manager of a joint Hindu family  was\t considered.
\nThe  learned  Judges examined a large number  of  decisions,
\nincluding that in Hanooman Persaud Pandey v. Babooee  Munraj
\nKoonweree(2);\tSahu  Ram  Chandra  v.\tBhup  Singh<\/a>(3)\t and
\nPalaniappa   Chetty   v.   Sreemath   Daivasikamony   Pandra
\nSannadhi(4)  and held that transactions justifiable  on\t the
\nprinciple of benefit to the estate are not limited to  those
\nwhich  are  of a defensive nature.  According  to  the\tHigh
\nCourt  if  the\ttransaction is such as a  prudent  owner  of
\nproperty  would,  in the light of circumstances\t which\twere
\nwithin his knowledge at that time, have entered into, though
\nthe degree of prudence required from the manager would be  a
\nlittle\tgreater\t than  that  expected of  a  sole  owner  of
\nproperty.  The facts of that case as found by the High Court
\nwere:\n<\/p>\n
\t      “……..\t the  adult managers of\t the  family
\n\t      found   it  very\tinconvenient  and   to\t the
\n\t      prejudice of the family’s interests to  retain
\n\t      property, 18 or 19 miles away from Bijnor,  to
\n\t      the management of which neither of them  could
\n\t      possibly\tgive  proper  attention,  that\tthey
\n\t      considered  it to the advantage of the  estate
\n\t      to  sell\tthat  property\tand  purchase  other
\n\t      property\tmore accessible with  the  proceeds,
\n\t      that  they did in fact sell that\tproperty  on
\n\t      very advantageous terms, that there is nothing
\n\t      to  indicate  that the transaction  would\t not
\n\t      have  reached a profitable conclusion .  .  .”
\n\t      (P. 979).\n<\/p><\/blockquote>\n
     (1) I.L.R. 50 All. 969.\t   (2)(1816) 6 Moo. I.A.393.
\n     (3) I.L.R. 39 All 437.\t   (4)44 I.A.147.\n<\/p><\/blockquote>\n
326<\/span><\/p>\n
We  have no doubt that for a transaction to be\tregarded  as
\none  which  is of benefit to the family it need\t not  neces-
\nsarily be only of a defensive character.  But what  transac-
\ntion would be for the benefit of the family must necessarily
\ndepend upon the facts of each case.  In the case before\t the
\nFull Bench the two managers of the family found it difficult
\nto man-age the property at all with the result,\t apparently,
\nthat  the  family was incurring losses.\t To sell  such\tpro-
\nperty, and that too on advantageous terms, and to invest the
\nsale  proceeds\tin a profitable way could certainly  be\t re-
\ngarded\tas  beneficial to the family.  In the  present\tcase
\nthere is unfortunately nothing in the plaint to suggest that
\nPindidas  agreed  to sell the property because he  found  it
\ndifficult  to manage it or because he found that the  family
\nwas incurring loss by retaining the property.  Nor again  is
\nthere  anything to suggest that the idea was to\t invest\t the
\nsale  proceeds in some profitable manner.  Indeed there\t are
\nno allegations in the plaint to the effect that the sale was
\nbeing  contemplated by any considerations of  prudence.\t  An
\nthat  is said is that the fraction of the family’s share  of
\nthe land owned by the family bore a very small proportion to
\nthe  land  which  the  plaintiff held at  the  date  of\t the
\ntransaction.   But that was indeed the case even before\t the
\npurchase  by  the  plaintiff  of  the  23\/120th\t share\tfrom
\nDevisahai.   There is nothing to indicate that the  position
\nof  the family vis-a-vis their share in the land had in\t any
\nway  been  altered by reason of the  circumstance  that\t the
\nremaining  17\/20th interest in the land came to be owned  by
\nthe plaintiff alone.  Therefore, even upon the view taken in
\nthe  Allahabad case the plaintiff cannot hope to succeed  in
\nthis suit.\n<\/p>\n
The  next  case is Sital Prasad Singh v.  Ajablal  Mander(1)
\nThat  was a case in which one of the questions\twhich  arose
\nfor  consideration  was the power of a manager\tto  alienate
\npart of the joint family property for the acquisition of new
\nproperty.   In\tthat  case  also the  test  applied  to\t the
\ntransaction  entered  into  by a manager of  a\tjoint  Hindu
\nfamily\twas  held  to  be the same,  that  is,\twhether\t the
\ntransaction  was one into which a prudent owner would  enter
\nin the ordinary
\n(1)  I.L.R. 18 Pat. 306.\n<\/p>\n
327<\/span><\/p>\n
course\tof  management\tin  order  to  benefit\tthe  estate.
\nFollowing  the view taken in the Allahabad case the  learned
\nJudges also held that the expression “benefit of the estate”
\nhas  a wider meaning than mere compelling necessity  and  is
\nnot  limited to transactions of a purely  defensive  nature.
\nIn  the course of his judgment Harries C.J. observed  at  p.
\n311:\n<\/p>\n
\t      “.  . . . . the karta of a joint Hindu  family
\n\t      being  merely  a manager and not\tan  absolute
\n\t      owner,  the Hindu law has, like other  systems
\n\t      of  law, placed certain limitations  upon\t his
\n\t      power  to alienate property which is owned  by
\n\t      the  joint  family.   The\t Hindu\t law-givers,
\n\t      however, could not have intended to impose any
\n\t      such   restriction  on  his  power  as   would
\n\t      virtually\t disqualify him from doing  anything
\n\t      to improve the conditions of the family.\t The
\n\t      only   reasonable\t limitation  which  can\t  be
\n\t      imposed on the karta is that he must act\twith
\n\t      prudence, and prudence implies caution as well
\n\t      as foresight and excludes hasty, reckless\t and
\n\t      arbitrary conduct.”\n<\/p><\/blockquote>\n
After  observing  that\tthe transaction entered\t into  by  a
\nmanager\t should not be of a speculative nature\tthe  learned
\nChief Justice observed:\n<\/p>\n
\t      “In  exceptional circumstances,  however,\t the
\n\t      court will uphold the alienation of a part  of
\n\t      the  joint family property by a karta for\t the
\n\t      acquisition  of new property as, for  example,
\n\t      where  all  the  adult members  of  the  joint
\n\t      family  with the knowledge available  to\tthem
\n\t      and  possessing all the necessary\t information
\n\t      about the means and requirements of the family
\n\t      are  convinced that the proposed\tpurchase  of
\n\t      the  new\tproperty is for the benefit  of\t the
\n\t      estate.”\n<\/p><\/blockquote>\n
These  observations make it clear that where  adult  members
\nare  in\t existence  the judgment is to be not  that  of\t the
\nmanager\t of the family alone but that of all the adult\tmem-
\nbers of the family, including the manager.  In the case\t be-
\nfore us all the brothers of Pindidas were adults when’ the
\n328<\/span>
\ncontract was entered into.  There is no suggestion that they
\nagreed to the transaction or were consulted about it or even
\nknew  of the transaction.  Even, therefore, if we hold\tthat
\nthe view expressed by the learned Chief Justice is right  it
\ndoes  not  help\t the plaintiff because the  facts  here\t are
\ndifferent  from\t those\tcontemplated by\t the  learned  Chief
\nJustice.  The other Judge who was a party to that  decision,
\nManokarlal J., took more or less the same view.
\nThe third case relied on is In the matter of A.T.  Vasudevan
\n&  Ors., minors(1).  There a single Judge of the High  Court
\nheld that the manager of joint Hindu family is competent  to
\nalienate  joint family property if it is clearly  beneficial
\nto  the\t estate\t even though there  is\tno  legal  necessity
\njustifying the transaction.  This view was expressed  while,
\ndealing\t with an application under cl. 17 of Letters  Patent
\nby one Thiruvengada Mudaliar for being appointed guardian of
\nthe  joint family property belonging to, inter alia, to\t his
\nfive  minor sons and for sanction of the sale of  that\tpro-
\nperty  as  being beneficial to the interests  of  the  minor
\nsons.\tThe  petitioner\t who was karta of  the\tfamily\thad,
\nbesides\t the five minor sons, two adult sons, his  wife\t and
\nunmarried  daughter who had rights of maintenance.   It\t was
\nthus  in  connection with his application that\tthe  learned
\nJudge considered the matter and from that point of view\t the
\ndecision is distinguishable.  However, it is a fact that the
\nlearned\t Judge\thas clearly expressed the opinion  that\t the
\nmanager\t has  power to sell joint family property if  he  is
\nsatisfied  that the transaction would be for the benefit  of
\nthe  family.   In  coming to this conclusion  he  has  based
\nhimself mainly upon the view taken by Venkata Subba Rao\t J.,
\nin  Sellappa  v. Suppan<\/a>(2).  That was a case  in  which\t the
\nquestion which arose for consideration was whether borrowing
\nmoney  on  the\tmortgage of joint family  property  for\t the
\npurchase  of  a\t house could be held to be  binding  on\t the
\nfamily because the transaction was of benefit to the family.
\nWhile  holding that a transaction to be for the\t benefit  of
\nthe family need not be of a defensive character the  learned
\nJudges,\t upon  the  evidence before  them,  held  that\tthis
\nparticular transac-\n<\/p>\n
(1) A.I.R. 1949 Mad. 260.\n<\/p>\n
(2) A.I.R. 1937 Mad. 496.\n<\/p>\n
329<\/span><\/p>\n
tion was not established by evidence to be one for the bene-
\nfit of the family.\n<\/p>\n
Thus,  as we have already stated, that for a transaction  to
\nbe  regarded as of benefit to the family it need not  be  of
\ndefensive  character so as to be binding on the family.\t  In
\neach case the court must be satisfied from the material\t be-
\nfore it that it was in fact such as conferred or was reason-
\nably expected to confer benefit on the family at the time it
\nwas  entered into,.  We have pointed out that there  is\t not
\neven  an allegation in the plaint that the  transaction\t was
\nsuch as was regarded as beneficial to the family when it was
\nentered into by Pindidas.  Apart from that we have the\tfact
\nthat  here the adult members of the family have stoutly\t re-
\nsisted the plaintiff’s claim for specific performance and we
\nhave no doubt that they would not have done so if they\twere
\nsatisfied that the transaction was of benefit to the family.
\nIt  may be possible that the land which was intended  to  be
\nsold  had  risen in value by the time the present  suit\t was
\ninstituted  and that is why the other members of the  family
\nare  contesting the plaintiff’s claim.\tApart from that\t the
\nadult members of the family are well within their rights  in
\nsaying\tthat no part of the family property could be  parted
\nwith  or  agreed  to be parted with by the  manager  on\t the
\nground\tof alleged benefit to the family without  consulting
\nthem.\tHere, as already stated, there is no  allegation  of
\nany such consultation.\n<\/p>\n
In  these circumstances we must hold that the  courts  below
\nwere right in dismissing the suit for specific\tperformance.
\nWe  may add that granting specific performance is always  in
\nthe  discretion\t of the court and in our view in a  case  of
\nthis  kind  the court would be\texercising  its\t discretion.
\nright by refusing specific performance.\n<\/p>\n
No doubt Pindidas himself was bound by the contract which he
\nhas entered into and the plaintiff would have been  entitled
\nto  the\t benefit of s. 15<\/a> of the Specific Relief  Act  which
\nruns thus:\n<\/p>\n
\t      “Where  a\t party to a contract  is  unable  to
\n\t      perform  the whole of his part of it, and\t the
\n\t      part which
\n\t      330<\/span>
\n\t      must be left unperformed forms a\tconsiderable
\n\t      portion  of  the whole, or does not  admit  of
\n\t      compensation  in money, he is not entitled  to
\n\t      obtain a decree for specific performance.\t But
\n\t      the court may, at the suit of the other party,
\n\t      direct   the  party  in  default\tto   perform
\n\t      specifically  so\tmuch  of  his  part  of\t the
\n\t      contract as he can perform, provided that\t the
\n\t      plaintiff\t relinquishes all claim\t to  further
\n\t      performance,  and\t all right  to\tcompensation
\n\t      either for the deficiency, or for the loss  or
\n\t      damage sustained by him through the default of
\n\t      the defendant.”\n<\/p><\/blockquote>\n
However,  in the case before us there is no claim on  behalf
\nof  the\t plaintiff  that he is willing\tto  pay\t the  entire
\nconsideration for obtaining a decree against the interest of
\nPindidas  alone in the property.  In the result\t the  appeal
\nfails and is dismissed with costs.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-254554","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalmukand vs Kamla Wati & Ors on 27 January, 1964 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balmukand-vs-kamla-wati-ors-on-27-january-1964\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balmukand vs Kamla Wati & Ors on 27 January, 1964 - 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