Patna High Court
Tarni Prasad Thakur vs Basudeo Thakur And Ors. on 20 November, 1980
Equivalent citations: AIR1981PAT331, 1981(29)BLJR346, AIR 1981 PATNA 331, 1981 BBCJ 244, (1981) BLJ 252, 1981 BLJR 346
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. Defendant is the appellant in this second appeal. The suit in question was filed on behalf of the plaintiffs-respondents for declaration that sale deed dated 5-6-1969, executed by defendant No. 2 who happens to be the father of plaintiff No. 1 and husband of plaintiff No. 2, was invalid as it was without legal necessity. It appears that defendant No. 2 executed the sale deed in question transferring 46 decimals of land to defendant-appellant. In the body of the sale deed it was recited that the sale was being made in order to raise money for construction of a Pucca house. According to the plaintiffs the sale was without any legal necessity and as such not binding on them.
2. Learned Munsif on consideration of the materials on record dismissed the suit of the plaintiffs holding that the sale was for legal necessity and as such there was no cause of action for the institution of the suit. However, on appeal being filed on behalf of the plaintiffs the learned Additional District Judge has decreed the suit and has held that the sale deed was invalid and no title passed to the appellant.
3. The learned counsel appearing on behalf of the defendant-appellant submitted that the learned Additional District Judge has taken an erroneous view of law while holding that the sale was without legal necessity. First he submitted that whenever the Karta of a joint family makes a transfer of joint family property such sales are not void but voidable only. Reference in this connection was made to the judgment of the Supreme Court in the case of Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh (AIR 1971 SC 776).
4. It is not in dispute that one Ashrafi had two sons, namely, Triloki Prasad Thakur and Jagdish. Defendant No. 2, who is the father of plaintiff No. I, is the son of Triloki Prasad Thakur aforesaid, and defendant-appellant is the son of Jagdish Thakur aforesaid. As such the defendants Nos. 1 and 2 are first cousins. It is an admitted position that in the year 1955 a partition took place between the branches of the two brothers, namely, Triloki Pd. Thakur and Jagdish Thakur. The deed of partition is an exhibit in this case marked as Ext. 'C'. Thereafter, the family of the plaintiffs constituted of plaintiff No. 1, his mother, plaintiff No. 2 and defendant No. 2. There is no dispute that after partition defendant No, 2 was the Karta of the joint family and as such he could have executed the sale deed for legal necessity which shall be binding on the plaintiff.
5. So the main question which has to be answered is as to whether the transfer in the present case was made for legal necessity. I have already pointed out that the learned Munsif has accepted the case of the defendant-appellant whereas the court of appeal below has rejected the assertion regarding the legal necessity. The learned Additional District Judge has pointed out that in the sale deed the necessity mentioned was for construction of a Pucca house. From the deed of partition (Ext. C), it appears that no house was allotted to defendant No. 2, the father of plaintiff No. 1. He was allotted only land. Although the court of appeal below on the materials on record has pointed out that after partition defendant No. 2 was living in a house having the roof of Foos but has observed that there was no necessity of constructing a house. No doubt, from time to time, this aspect of the matter has been considered as to what will be a legal necessity for a particular transfer. Some illustrations are given in the Mulla's Principles of Hindu Law. In the case of Govind Dani v. Purusottam Mahapatra (AIR 1943 Patna 430) a Bench of this Court held that construction of a pucca privy cannot be held to be a mere luxury and expenses incurred over the construction of the same may be held to (be a legal necessity. In such a situation, I am inclined to hold that if 46 decimals of land was sold for Rs. 2,000 for the I construction of the house, it cannot be held to be without any legal necessity. It is well settled that recital made in the deed of sale can be referred to for the purpose of ascertaining as to what was the necessity for transfer. Reference in this connection may be made to Article 244 of the Mulla's Principles of Hindu Law. It is true that such recitals are not conclusive but they can be used as admissions of the Manager as well as can be taken into consideration along with other materials on the record.
6. It was then submitted that the transfer is hit by Sections 8 and 11 of the Hindu Minority and Guardianship Act, 1956, which requires prior permission of the court, failing which such transfer shall be voidable at the instance of the minor or any person claiming under him. A Bench of this Court in the case of Nathuni Mishra v. Mahesh Misra (1963 BLJR 169): (AIR 1963 Pat 146) has held that aforesaid bar does not apply to the share of a minor in a joint family property, which has been disposed of by the manager or the Karta of the joint family. Such transactions have to be tested on the well settled principles regarding legal necessity. I have already held that in the facts and circumstances of the case the transfer was made for construction of a pucca house, it cannot be held that it was without legal necessity so as to give a cause of action to the plaintiffs to challenge the transaction aforesaid.
7. Accordingly, the appeal is allowed and the judgment and decree passed by the court of appeal below is set aside. In the circumstances of the case, however, there will be no order as to costs.