9911796707
TMI Blog1957 (9) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... of defendant No. 1 by Nila, his wife, for self and as guardian of his two minor sons, is not supported by legal necessity and further that she is absolutely incompetent, according to the concepts of Hindu law, to execute such a transaction, and the said transaction, therefore, is invalid and inoperative. 2. Indeed if the first transaction in favour of defendant No. 1 fails, the Kataala in favour of defendant No. 2 by defendant No. 1 need not be considered, and it is equally clear if the first transaction is held as binding on the plaintiff, the plaintiff's suit is bound to fail. 3. The defence is that the transaction dated 24th May, 1944 was for a consideration of ₹ 200/-which was fully paid and it was supported toy legal necessity. 4. The first question we propose to take "P" is whether the transaction is supported by legal necessity or not. If the point is decided in favour of the plaintiff no further question would arise. 5. The trial court, even though decreed the plaintiff's suit on the ground that a female member cannot act as the Karta of the family, had come to the conclusion that the transaction (Ext. A/1) was supported by legal necessity. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most unreasonable, and no Court of Justice in such circumstances could have found as such. 6. Then comes the difficult question: whether the transaction (Ext. A/1) can be a valid transaction according to the Hindu Law. The point that arises is: "whether a female can act as the Karta of a Hindu joint family at any time whatsoever"? On this point we will notice conflicting decisions. The first Full Bench decision is of Nagpur High Court, in the case of Keshee v. Jagannath, AIR 1926 Nag 81 (A). The question in that case was exactly the same as before us: "Whether a sale by a Hindu widow, who was managing the estate of her minor son and step-son of a part of the immovable property belonging to the estate for necessary purposes is valid and binding on the step-son". Hallifax, A. J. C. observed: "That fact is that the transferor on behalf of the minor in each case, though purporting to act as the guardian of the minor, was the manager of the Hindu family of which the minor was a member and really acted in that capacity." His Lordship expressed himself in the following way: "If there is any statement of the rule of Hindy law as to who is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances. 7. But we cannot lose sight of two other important authorities taking a different view. This question came up for decision in the case of Radha Ammal v. Commr. of Income-tax Madras, AIR 1950 Mad 538 (C). The case was decided by Satyanarayan Rao and Viswanath Sastri JJ., each learned Judge giving a separate judgment. In the judgment of Satyanarayan Rao, J., there is a very bold assertion to the effect that the right to become a manager depends upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family. If a person is not a member of the coparcenary and is outside it, he has no right to claim managership of the family and to claim a representative capacity on behalf of other coparceners with reference to the dealings relating to the property of the family. The observation came while his Lordship was discussing the provisions of the new Act (Hindu Women's Rights to Property Act, XVIII of 1937). With very great respect for the learned and eminent Judge Viswanath Sastri J., we may note that the observation of Sastri J., was indeed much bolder; but nevertheless his judgment is also not supported by any text or high authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the family is absent for a considerable length of time at a distance, his elder minor-son can act as a Karta. Indeed if he is not sui Juris, he can contract or dispose of the property through his natural guardian, the mother, and further if he is not sufficiently physically able to take charge of the management of the property, he can take the assistance of his mother. I will now quote a passage from Mulla's Hindu Law, 11th Edition, at p. 615. Towards the end of paragraph 519, the passage runs as follows: "Capacity of a minor to act as guardian: There is no rule of Hindu Law that the managing member of an undivided family should be an adult. He may be a minor in which case he is competent to act as guardian not only of his own wife and children but also the wife and, children of another minor member of the family." Section 21 of the Guardians and Wards Act, 1890, provides thus: "A minor is incompetent to act as guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child or another minor member of that family." The Act does not exactly postulate the provisions of Hindu law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anship of the person and Section 10 of 1956 Act only postulates the incompetency of the minor to be the guardian of the property of any other minor. Section 21 appears still to be good law and we may safely take the aid of the assumption underlying the provisions of Section 21 in support of our view. 11. What appears to be more important is a direct decision of the Nagpur High Court on this particular subject in the case of Trimbak Raoji T. Lonkaran Manaji, AIR 1948 Nag 324 (F). Their Lordships observed: "There is nothing in the Hindu law so far as we have seen and nothing has been pointed out to us by Dr. Kathalay, the learned counsel for the appellants, which absolutely forbids a minor though a senior member of a joint Hindu family from occupying the status of a managing member of the Joint Hindu family, particularly when such a senior member has a capable guardian to represent him." They also relied upon the assumption underlying Section 21 of the Guardians and Wards Act. We are therefore of the view that in this particular transaction, the seniar male member even though a minor could act as the managing member through, his mother as the guardian. 12. There is yet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent decision of the same High Court by another eminent Judge Kulwant Sahay J., in the 'Bench decision reported in Ram Das v. Tanak Singh, AIR 1928 Pat 557 (H). Following several other Patna decisions their Lordships laid down that it is not right to hold that an alienation by a junior member of a joint family is invalid, simply on the ground that it was executed by a member of the family who is not its Karta, when the same is for family necessity. Kulwant sahay J., observes as follows: "The reasons given by the learned Subordinate Judge for holding that the conveyance under the deed of sale, dated 27th April 1922, is not binding on the joint family, are not satisfactory or convincing. The learned Subordinate Judge seems to be under the impression that an alienation by a member of a joint family who is not the Karta of the family is under no circum-stances binding on the family. He says that in order to bind the family the alienation must be by the managing member of the family & it must be for antecedent debt or for legal necessity of the joint family, and he finds that plaintiff 1 was the managing member of the family and defendant 7 was not the managing member ..... X X X X Extracts X X X X X X X X Extracts X X X X
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