TMI Blog1962 (4) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... sferring full 16 annas interest in the village Amaldihi and Gondkhami ','together with sir and khudkast lands, grass, kothar padia gochar rivers, brooks, wells, tanks, bandkies, orchards and gardens and houses and the like, as well is the cultivated and the uncultivated lands in the village with all the rights and privileges. The entire sixteen annas share in mauza Gondkhami and twelve annas share in mauza Amaldihi was sold to Kaluram for ₹ 37,500/- and the remaining four annas share of Amaldihi to Pandit Ramlal for ₹ 12,500/-. Out of the consideration of ₹ 50,000/- a sum of ₹ 30,491/8/- was kept with Kalaram for satisfying a mortgage decree obtained against the family by one Gayaram in respect of these two village; as' well as two other villages. Similarly a further amount of ₹ 2,000/- was allowed to be retained by Kaluram for paying the land revenue due in respect of these villages. The balance of the amount was received in cash. It was further stated in the sale deed that this amount was required for performing the marriages of the appellant No. 1 Radhakrishnadas and Gorelal's daughter Ramjibai, who were both stated to be majors. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals were heard together and while the appellants' appeal was dismissed, that of the respondents was allowed. Before us Mr. S. P. Sinha accepts the position that ₹ 45,000/. out of the consideration of ₹ 50,000/- was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His argument is that a sum of ₹ 5,000 or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of ₹ 50,000/-. This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alience is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is Sri Krishan Das v. Nathu Ram (I L.R. 49 All. 149 (P.C.). In that case the consideration for the alienation was ₹ 35,000/-. The alience was able to prove that there was le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransaction does not bind him. As it is, his joining as an executant in the sale deed does not make any difference. The fact that sale deed had been executed also by his father who was the manager of the family makes the transaction binding upon him just as it is admittedly binding upon his brother, the second appellant, who was then a minor. Mr. Sinha, however, contended that the fact that the appellant No. I was required by the alience, respondents 1 and 2. to join in the transaction clearly shows that Gurelal in executing the sale deed did not and could not act for him. We cannot accept the argument. For ascertaining whether in a particular transaction the manager purports to act on behalf of the family or in his individual capacity one has to see the nature of the transaction and the purpose for which the transaction has been entered into. A manager does not cease to be a manager merely because in the tran- saction entered into by him a junior member of the family, who was a major, or believed to be a major also joined. It is not unusual for alienees to require major members of the family to join in transactions entered into by managers for ensuring that later on no objections t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir land except in the following cases, (a) when a transfer of such sir land is made by him expressly agreeing to transfer his right to cultivate such sir land........ What this provision no doubt requires is an express agreement between the transferor and the transferee concerning the transfer of the cultivating rights in sir land. We have already quoted the Precise language used in the document describing the interest which has been transferred under the sale deed. The recital shows that the executant of the sale deed not only transferred sir and khudkast lands, cultivated and uncultivated lands, but transferred these properties along with all rights and privileges . If the intention was not to transfer the cultivating rights in sir lands the concluding words were not necessary. Each interest which has been specified in the recital is governed by the concluding words ,all the rights and privileged contained in that recital. In the absence of these words what would have passed under the sale deed, in so far as the sir land is concerned, would have been only the proprietary interest in that land. The question is, what is the effect of the addition of those words ? Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
