A.L.V.R. Ct. Veerappa Chettiar vs Arunachalam Chetti And Ors. on 8 November, 1935
Cf. the observations of the Privy Council in Veerappa v. Arunachalam ('24) 11 A.I.R. 1924 P.C. 192 at pp. 53 and 54.
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1 - 6 of 6 (0.16 seconds)Brij Narain vs Mangla Prasad on 24 November, 1923
327 as being inconsistent with the principles elucidated by the Privy Council in Brij Narain v. Mangla Prasad ('24) 11 A.I.R. 1924 P.C. 50. In the former case, the discussion related only to the liability of the son's share in the family property for the discharge of such obligation. It is only from the decretal portion of the judgment and the statement of facts in the report that one is able to gather that the father in that case had effected a mortgage to secure his obligation as a surety incurred only at the time of such mortgage, and that the mortgage as such was upheld even in respect of the son's share in the property. The case is not referred to as a decision on this point in any of the leading text-books on Hindu law to which our attention was drawn, and the assumption underlying the concluding part of the judgment cannot, in our opinion, be regarded as authority in support of the proposition now contended for.
Sahu Ram Chandra vs Bhup Singh on 9 March, 1917
Now the validity of an alienation in discharge of an antecedent debt has been characterised by their Lordships of the Privy Council in Sahu Ram v. Bhup Singh ('17) 4 A.I.R. 1917 P.C. 61, at p. 444, as an exception to the general rule of want of authority in the father to transfer property without legal necessity or when there is no benefit to the estate, and their Lordships have observed that the exception should not be extended. I would, therefore, hesitate to apply the exception to the case of a suretyship where no antecedency in point of time exists.
Madan Lal And Ors. vs Gajendrapal Singh on 8 January, 1929
12. We respectfully agree with this observation. The other branch of the contention is that it is not open to the appellant to question the validity of the indemnity charge as affecting defendant 2's share as the latter did not himself impugn it after attaining majority. It was urged by Mr. Rajah Aiyer that an unauthorised alienation of family property by the manager was only voidable at the in-stance of junior members of the family so far as it related to their interests in the property, and until it was avoided by them by some act of repudiation it was valid and operative and could not be challenged by any other person. It is necessary to bear in mind in this connection that the mortgage, Ex. V, was granted to the appellant for discharging antecedent debts of defendant 1 and was therefore binding on defendant 2's interest in hypotheca. As already stated, the appellant obtained a decree on the mortgage and in execution of the decree purchased the property in 19S6. Defendant 2's interest in the property mortgaged thus validly passed to the appellant in that year, and it was not suggested that defendant 2, who attained majority only in the previous year, did anything by way of affirming or ratifying the prior charge under the indemnity bond before he lost his interest in the property by the execution sale. Obviously, the only person interested in impeaching the validity of the earlier encumbrance on the property after such sale was the appellant, and it would indeed be odd if he were to be denied the right to do so. It was said that the right of avoiding an alienation by the manager of a joint family is a right restricted to the coparceners and cannot pass at an involuntary sale though a voluntary sale by the person having such right might itself be regarded as a sufficient repudiation of the unauthorised alienation so as to entitle the alienee thereafter to question it. No authority, however, was cited in support of this proposition. On the other hand, direct authority against it is to be found in Madan Lal v. Gajendrapal ('29) 16 A.I.R. 1929 All. 243. We agree with this decision and hold that the appellant is entitled to set up the invalidity of the charge created under the indemnity bond so far as defendant 2's interest in the property is concerned.
Section 4 in The Indian Contract Act, 1872 [Entire Act]
Section 12 in The Indian Contract Act, 1872 [Entire Act]
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