Balmukand vs Kamla Wati & Ors on 27 January, 1964

The appellant entered into a contract with the karta for the
purchase of property belonging to a joint Hindu family.
This property consisted of a fractional share belonging to
the family in a large plot of land. Earnest money was paid
to the karta. As the karta did not execute the saledeed
the appellant instituted a suit for specific performance.
The other members who are the brothers of the karta and who
were adults
(1) A.I.R. 1962 Raj 3.
(2) 1959 All. L.J. 340.
134--159 S.C.--21
322
at the time of the contract were also impleaded in the suit
as defendants. The suit was resisted on the ground that
there was no legal necessity and that the contract for sale
was not for the benefit of the family. The trial court as
well as the High Court upheld these contentions.
Before this Court it was contended that even though there
was no legal necessity the transaction was for the benefit
of the family which the karta as a prudent owner was
entitled to enter into for the benefit of the family.
Held:(i) For a transaction to be regarded as one which is of
benefit to the family it need not necessarily be only of a
defensive character, but what transactions would be for the
benefit of the family would depend on the facts and
circumstances of each case. In each case the Court must be
satisfied from the material before it that it was in fact
such as conferred or was necessarilyexpected to confer
benefit on the family at the time it was entered into.
(ii) No part of the joint family property could be parted
with or agreed to be parted with by the manager on the
ground of alleged benefit to the family when the transaction
is opposed by the adult members of the family.
(iii)In the present case the appropriate pleas were not
raised by the plaintiff nor the necessary evidence led. The
granting of specific performance is always in the discretion
of the court. In the facts and circumstances of thecase
the courts below were justified in refusing to order
specific performance and the appeal is dismissed.
Jagatnarain v. Mathura Das, I.L.R. 50 All. 969, Honooman
Prasad Pandey v. Babooee Munraj Koonwaree, (1856) 6Moo.
I.A. 393 Sahu Ram Chandra v. Bhup Singh, I.L.R. 39 All. 437,
Palaniappa Chetty v. Sreemath Daiyasikamony Pandara
Sannadhi, 44 I.A. 147, Sital Prasad Singh v. Ajablal Mander,
I.L.R. 18 Pat. 306 and In the matter of A. V.Vasudevan &
Ors. Minors. A.I.R. 1949 Mad. 260. referred to.

Guramma Bhratar Chanbasappa ... vs Malappa on 19 August, 1963

HEADNOTE:
'A' died on January 8, 1944. He left behind him three wives
and two widowed daughters, children of his predeceased wife.
The senior most widow filed a civil suit for partition and
possession of 1/6th share after setting aside the
alienations made by her husband on January 4 and 5, 1944.
It was alleged that at the time of the deathof 'A' his
youngest wife was pregnant and that she gave birth to a male
child on October 4, 1944. On January 30, 1944, the senior
most widow took her sister's son in adoption. A few days
before his death 'A' executed two deeds of maintenance in
favour of his two wives (defendant Nos. 1 and 2) and also
executed deeds of gift in favour of widowed daughter, a son
of an illegitimate son and a relative. Long before his
death he also executed two deeds viz one a deed of
maintenance and a deed of gift in favour of the senior most
widow (the plaintiff). To this suit the two widows were
made defendants 1 and 2; the alleged adopted son, defendant
3,
(1) A.I.R. 1960 Mad. 443.
(2) L. R. 63 I. A. 372.
(3) [1955] 2 S.C.R. 1140.
498
the alleged posthumous son, defendant 4; and the alienees
defendants 5 to 8. These two appeals arise out of the
certificate granted by the High Court.
Held (1) that the existence of a son in embryo does not in-
validate an adoption.
Narayana Reddi v. Varadachala Reddi, S. A. No. 223 of 1859
M.S.D. 1859, P. 97, referred to.
Nagabhushanam v. Seshammagaru, (1878-81) I.L.R. 3 Mad. 180
Shamvahoo v. Dwarakadas Vasanji, (1888) I.L.R. 12 Born. 202,
Daulat Ram v. Ram Lal, (1907) I.L.R. 29 All 310, approved.
(2)that the High Court was right in affirming the
alienations made in favour of the plaintiff and was equally
justified in setting side the alienations made in favour of
defendants 1 and 2. The former documents were executed by
"A" in 1937 and 1939 when he was the sole surviving
coparcenar whereas the latter documents were executed when
he had ceased to have that power because the malechild
i.e., 4th defendant was already conceived.
(3)that a managing member of the family haspower to,
alienatefor value joint family property either for family
necessity or for the benefit of the estate. The sole
surviving member of a coparcenary has an absolute power to
alienate the family property, as at the time of alienation
there is no other member who has joint interest in the
family. If another member was conceived in the family or
inducted therein by adoption the power of the manager was
circumscribed as aforesaid and if the alienations were made
by the manager or father for a purpose not binding on the
estate, they would be voidable at the instance of
subsequently born son or adopted son.
Avdesh Kumar v. Zakaul Hassain, I.L.R. [1944] All 612, Chan-
dramani v. jambeswara, A.I.R. 1931 Mad. 550and Bhagwat
Prasad Bahidar v. Debichand Bogra, (1941) I.L.R. 20 Pat.727,
referred to.
(4) that a gift to a stranger of joint family property
by the manager of the family is void ashe has not
the absolute power of disposal over the joint Hindu family
property.
Partha Sarathi Pillai v. Tiruvengada, (1907) I.L.R. 30 Mad.
340, referred to.
(5) that the Hindu Law texts conferred a right upon a
daughter or a sister, as the case may be, to have a share in
the family property at the time of partition. The right was
lost by efflux of time. But it became crystallized into a
moral obligation. The father or his representative can make
a valid gift by way of reasonable provision for the
maintenance of the daughter, regard being had to the
financial and other relevant circumstances of the family.
By custom or by convenience, such gifts arc made at the time
of marriage, but the right of the father or his
representative to make such a gift is not confined to the
marriage occasion. It is a moral obligation and it continues
to subsist till it is discharged Marriage is only a
customary occasion for such a gift. But the
499
moral obligation can be discharged at any time, either
during the life time of the father or thereafter. Applying
the aforesaid principles, the deed of gift made by father to
the daughter, i.e. 8th defendant in the present case, was
within his right and certainly reasonable.
Jinnappa Mahadevappa v. Chimmava, (1935) I.L R. 59 Bom. 459,
disapproved.
Vettorammal v. Poochammal, (1912) 22 M.L.J. 321, Kudutamma
v. Narasimhacharyalu, (1907) 17 M.L.J. 528, Sundaramaya v.
Seethamma, (1911) 21 M.L.J. 695, Ramaswamy Aiyyar v.
Vengidsami Iyer, (1898) I.L.R. 22 Mad. 113, Bachoo v.
Mankorebai (1907) I.L.R. 31 Bom. 373, Ramalinga Annavi v.
Narayana Annavi, (1922) 49 I.A. 168, Sithamahalakshmamma v.
Kotayya, (1936) 71 M.L.J. 259, Annamalai v. Sundarathammal,
(1952) 2 M.L.J. 782 and Churaman Sahu v. Gopi Sahu, (1910)
I.L.R. 37 Cal. 1 approved.
(5) that the Hindu Law applicable to Sudras applies to
lingayats as well.
(6) that in Bombay Presidency the rule accepted in Dattaka
Chandrika has never been followed and the share of an
adopted son in competition with a natural born son among
Sudras has always been 1/5th in the family property, i.e.
1/4th of the natural born son's share.The rule in Dattaka
Chandrika is that among Sudras an adopted son and an
after born natural son take equal share in the family
property and it is followed in Madras and Bengal provinces.
Tirkangauda Mallangauda v. Shivappa Patil, I.L.R. 1943 Bom-
706, Gopal Narhar Safray v. Hanumant Ganesh Safray, (1879)
I.L.R. 3 Bom. 273, Gopalan v. Venkataraghavulu, (1915)
I.L.R. 40 Mad. 632 and Asita v. Nirode, (1916) 20 C.W.N.
901, referred to.
Arumilli Perrazu v. Arumilli Subbarayadu, (1921) 48 I.A.
280, distinguished.
Giriapa v. Ningapa, (1892) I.L.R. 17 Bom. 100and Tukaram
Mahadu v. Ramachandra Mahadu, (1925) I.L.R. 49 Bom. 672,
approved.
M/S Nopany Investments (P) Ltd vs Santokh Singh (Huf) on 10
December, 2007

In a Hindu family, the Karta or Manager occupies a unique position. It is not as if

anybody could become Manager of a joint Hindu family.

As a general rule, the father of a family, if alive, and in his absence the senior member of
the family, is alone entitled to manage the joint family property."

From a reading of the aforesaid observation of this court in Sunil Kumar and another
Vs. Ram Prakash and others [supra], we are unable to accept that a younger brother of a
joint hindu family would not at all be entitled to manage the joint family property as the
Karta of the family. This decision only lays down a general rule that the father of a
family, if alive, and in his absence the senior member of the family would be entitled to
manage the joint family property. Apart from that, this decision was rendered on the
question whether a suit for permanent injunction, filed by co-parcerners for restraining
the Karta of a joint hindu family from alienating the joint family property in pursuance
of a sale agreement with a third party, was maintainable or not. While considering that
aspect of the matter, this court considered as to when could the alienation of joint family
property by the Karta be permitted. Accordingly, it is difficult for us to agree with Mr.
Gupta, learned senior counsel appearing for the appellant, that the decision in Sunil
Kumar and another Vs. Ram Prakash and others [supra] would be applicable in the
present case which, in our view, does not at all hold that when the elder member of a
joint hindu family is alive, the younger member would not at all be entitled to act as a
manager or Karta of the joint family property. In Tribhovandas's case [supra], this court
held as follows: "The managership of the joint family property goes to a person by birth
and is regulated by seniority and the karta or the manager occupies a position superior
to that of the other members. A junior member cannot, therefore, deal with the joint
family property as manager so long as the karta is available except where the karta
relinquishes his right expressly or by necessary implication or in the absence of the
manager in exceptional and extraordinary circumstances such as distress or calamity
affecting the whole family and for supporting the family or in the absence of the father
whose whereabouts were not known or who was away in remote place due to compelling
circumstances and that his return within the reasonable time was unlikely or not
anticipated."(Emphasis supplied) From a careful reading of the observation of this court
in Tribhovandas's case [supra], it would be evident that a younger member of the joint
hindu family can deal with the joint family property as manager in the following
circumstances: -

(i) if the senior member or the Karta is not available;

(ii) where the Karta relinquishes his right expressly or by necessary implication;

(iii) in the absence of the manager in exceptional and extra ordinary circumstances such
as distress or calamity affecting the whole family and for supporting the family;

(iv) in the absence of the father: -

(a) whose whereabouts were not known or

(b) who was away in a remote place due to compelling circumstances and his return
within a reasonable time was unlikely or not anticipated.

Therefore, in Tribhovandas's case [supra], it has been made clear that under the
aforesaid circumstances, a junior member of the joint hindu family can deal with the
joint family property as manager or act as the Karta of the same.

7. From the above observations of this court in the aforesaid two decisions, we can come
to this conclusion that it is usually the Father of the family, if he is alive, and in his
absence the senior member of the family, who is entitled to manage the joint family
property
Madras High Court
S. Periannan vs Commissioner Of Income-Tax on 20 December, 1990

A Division Bench of the Allahabad High Court, in Mangal Singh v. Harkesh, dealing
with the same question, observed as follows (p. 47) :

"The general rule laid down by these cases which is common to Mitakshara and
Dayabhaga both, therefore, appears to be that whatever may be the extent of the
contribution of the acquiring member himself out of his self-acquired funds, if he takes
the aid of any portion of joint or ancestral property in acquiring the property, however
small that aid may be, the property so acquired assumes the character of joint family
property and cannot be claimed by him as a self-acquisition. In this view of the matter,
the extent of his contribution or that of the family fund becomes immaterial. If any help
is taken from the family property, it is enough to make the self-acquired property the
property of the famil