Patna High Court
Hari Charan Kuar And Ors. vs Kaula Rai And Ors. on 29 March, 1917
Equivalent citations: 40IND. CAS.142, AIR 1917 PATNA 478
JUDGMENT Chamier, C.J.
1. The facts of this case as found by the lower Appellate Court are as follows:
In May 1909 defendants Nos. 1--5, who were at the time the managing members of a joint family consisting of themselves and defendants Noa, 6--13 and 18, agreed to sell to the plaintiffs 13 bighas 12 cottas of land in a village called Dumri and 2 bighas 5 cottahs of land in a village called Chakki for Rs. 3,500, and in pursuance of that agreement executed two deeds of sale on May 28th and 29th, 1909. Defendants Nos. 1--5 were at that time and had been for some years previously in possession of 3 bighas 15 cottahs of the land in Dumri as mortgagees. On June 20th, 1909, defendants Nos. 1--5 by registered deed sold to defendants Nos. 14 and 15 for Rs. 3,000 9 bighas 10 cottahs of the land in Dumri including the 3 bighas 15 cottahs Subject to the mortgage. Defendants Nos. 1--5 having refused to register the deeds executed by them, the plaintiffs brought the present suit for specific performance against defendants Nos. 1--5 and all the members of their family, many of whom are minors. The plaintiffs alleged that defendants Nos. 14 and 15 had taken their sale-deed with full notice of the previous agreement for sale made in favour of the plaintiffs. The lower Appellate Court dismissed the suit on the ground that defendants Nos. 14 and 15 were bona fide purchasers for value without notice of the agreement in favour of the plaintiffs.
2. The plaintiffs have appealed. On their behalf it is contended that even if defendants Nos. 14 and 15 had not actual notice, they had constructive notice of the agreement in favour of the plaintiffs inasmuch as they (defendants Nos. 14 and 15) were aware that the plaintiffs were in possession of 3 bighas 15 cottahs of the land and should have made enquiries of them regarding their interest in the land, and if they (defendants Nos. 14 and 15) had made enquiries they would have come to know of the agreement. The defendants contend that a decree should not be made for specific performance, first, because some of the members of the vendor's family are minors and, therefore, the contract lacks mutuality, and secondly, because it is not for the benefit of the minors that the contract with the plaintiffs should be enforced.
4. These contentious were not put forward in either of the Courts below but they raise questions of law upon the findings of the lower Appellate Court and we think that they should be considered.
5. The contention that the contract with the plaintiffs should not be specifically enforced rests on the decisions of their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 30 I.A. 114 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 8 Sar P.C.J. 374 (P.C) and Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 : 39 C. 232 : 11 M.L.T. 8 : 21 M.L.J. 1156 : 39 I.A. 1 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.T. 69 : 14 Bom. L.R. 5 (P.C.). In the former case it was held that a contract made by an infant is not merely avoidable but void. In the latter the manager of the estate of an infant Muhammadan had contracted to buy an estate and it was held that the infant suing by his next friend was not entitled to obtain a decree for specific performance of the contract, inasmuch as the infant was not bound by the contract and, therefore, the contract lacked mutuality. Their Lordships held that it was not within the competence of a manager of a minor's estate or of a guardian of a minor to bind the minor or his estate by a contract for the purchase of immoveable property. It is sought to apply these to a contract for the sale of property made by the managing members of a joint family consisting of themselves and their minor children. There are cases in which specific performance of such a contract has been decreed against the managing members who made the contract, leaving open the question of the validity of the contract as regards the minor members see Kosuri Ramaraju v. Ivalury Ramalingam 26 M. 74 : 12 M.L.J. 400 and Srinivasa Reddi v. Sivarama Reddi 4 Ind. Cas. 506 : 32 M. 320 and there is at least one case in which the contract not being for the benefit of the minors specific performance was decreed against the members who made the contract see Ponaka Subba Bani Beddy v. Vadamadi Seshachellam Chetty 5 Ind. Cas. 79 : 7 M.L.T. 137 : 33 M. 359 : 20 M.L.J. 328. The interest of a member of a joint Hindu family in the family property is not individual property at all see, Gharib-ullah v. Khalak Singh 25 A. 407 : 30 I.A. 165 : 5 Bom. L.R. 478 : 7 C.W.N. 681 : 8 Sar. P.C.J. 483 (P.C) The manager of such a family is not an agent of the other members nor is he a mere manager. He is much more like a trustee for the other members see Annamalai Chetty v. Murugasa Chetty 26 M. 544 at p. 553 : 7 C.W.N. 754 : 30 I.A. 220 : 8 Sar. P.C.J. 523 : 13 M.L.J. 287 : 5 Bom. L.R. 494 (P.C.) It is settled law that a father or managing member of a joint Hindu family may under certain circumstances and subject to certain conditions enter into agreements which may be binding on the minor members of the family Ganesha Row v. Tulja Ram Row 19 Ind. Cas. 515 : 36 M. 295 : 40 I.A. 132 : 17 C.W.N. 765 : 11 A.L.J. 589 : 18 C.L.J. 1 : 15 Bom. L.R. 626 : 14 M.L.T. 1 : (1913) M.W.N. 575 : 25 M.L.J. 150 (P.C). I apprehend that the decisions of their Lordships in the cases reported as Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 30 I.A. 114 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 8 Sar P.C.J. 374 (P.C) and Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 : 39 C. 232 : 11 M.L.T. 8 : 21 M.L.J. 1156 : 39 I.A. 1 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.T. 69 : 14 Bom. L.R. 5 (P.C.)., do not apply to contracts made by the managing member of a joint Hindu family for family necessities or for the benefit of the family, i.e., contracts made by the managing members which bind the minor members of the family. Such contracts can be enforced on behalf of the family by the persons who make them, and I find nothing in the decisions of their Lordships which requires us to hold that such contracts cannot be enforced against the family. Contracts made not by minors but by persons who have power to make contracts on behalf of a joint family do not appear to come within those decisions. I am not prepared to dismiss this suit for specific performance on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract.
6. A long series of English cases has established the rule that if a person purchases and takes a conveyance of an estate which he knows to be in the occupation of another than the vendor, he is bound by all the equities which the person in occupation may have in the land, for possession is prima facie seisin and the purchaser has, therefore, actual notice of a fact by which the property is affected and he is bound to ascertain the truth; and the rule has been applied in England not only to interests connected with the tenancy of the occupier but to interests which he may have under collateral agreements. Thus in Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. the tenant in possessing of a public house and garden had entered into a contract for the purchase of the property and a subsequent purchaser was held to have constructive notice of the contract, as he was bound to make enquiry from the tenant which would have led him to a knowledge of it. In that case Lord Eldon said: "My opinion, therefore, considering this as depending upon notice, is, that this tenant, being in possession under a lease with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity, repelling the claim of a subsequent purchaser, who made no enquiry as to the nature of his possession." The case of Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. has been followed in several cases in India see Kondiba v. Nana 27 B. 408 : 5 Bom. L.R. 269 and Sharfudin v. Govind 27 B. 452 : 5 Bom. L.R. 144 and the cases cited in those rulings]. Assuming that the rule in Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. is applicable to Indian cases, I would point out that notice has been defined in more than one Indian Act in terms which do not go so far as the English cases and that both here and in England it has been repeatedly said by Judges that Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. was an extreme case beyond which the doctrine of notice ought not to be extended, and the case of Penny v. Watts (1849) 1 Mac. & G 150 : 2 De G. & Sm. 501 12 Jur. 993 : 19 L.J. Ch. 212 : H. & Tw. 266 : 41 E.R. 1220 : 84 R.R. 30 suggests a doubt whether the mere occupation by a person of property would be notice of an agreement not connected with his occupation, though the case was disposed of on other grounds. There appears to be no case in the books in which the Courts have been asked to apply the doctrine of Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. to a case like the one before us, in which the person who had the contract to purchase in his pocket was in possession not of the entire property sold to another, but only of a small portion of that property. The plaintiffs and defendants all live in the same village. The plaintiffs for years before the contract now in question was made had been in possession as mortgagees of a few plots of land belonging to the family of defendants Nos. 1--5. The nature and origin of their possession must have been well known to every one in the village and it seems to me that it would be going too far to hold that the possession of the plaintiffs was under the circumstances sufficient to put defendants Nos. 14 and 15 on enquiry. The plaintiffs' possession was admittedly due not to any agreement to buy that or any other land but to the mortgage held by them. In my opinion it would be a great extension of the doctrine of Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. to hold that in this case defendants Nos. 14 and 15 had constructive notice of the agreement to sell 9 bighas 10 cottdhs to the plaintiffs.
7. It is, however, contended that the doctrine of Daniels v. Davison (1809) 16 Ves. (Jun.) 249 : 33 E.R. 978 : 10 R.R. must be applied at least so far as to fix defendants Nos. 14 and 15 with notice of the agreement with the plaintiffs as regards the 3 bighas 15 cottahs in their possession. Applied in this Way the doctrine will not avail the plaintiffs, for we cannot give a decree for specific performance as regards the 3 bighas 15 cottahs only. We have no information as to the respective values of the different plots in question, and it would obviously not be in the interest of the minor members of the family of defendants Nos. 1--5 to decree Specific performance of the contract with the plaintiffs as regards some of the plots and leave the sale to defendant Nos. 14 and 15 to stand as regards the 3 bighas 15 cottahs.
8. Lastly I am of opinion that it is not in the interest of the minor members of the family of defendants Nos. 1--5 that specific performance should be decreed at all. The District Judge has found, and his finding appears to be correct, that the sale to defendants Nos. 14 and 15 is more beneficial to the minor members of the vendors' family than the sale to the plaintiffs would be.
9. I would, therefore, dismiss this appeal with costs.
Mullick, J.
10. I concur.
Atkinson, J.
11. I concur in the judgment of this Court delivered by the learned Chief Justice.
In Appeal No. 2147 of 1914.
12. For the reasons given in our judgment in Second Appeal No. 766 of 1914, this appeal is dismissed with costs.