6 S.C.R.

SUPREME COURT REPORTS 321

in State of Ra; asthan v. Shiv Singh(') and by the Allaha- . bad High Court in A/lahdia v. State( 2 ).

1!164

Faddi

We therefore hold that the objection to the admissibility 51• 1• P~!d::f1h1• of , the first information report lodged by the appellant is not - sound and that the Courts below have rightly admitted it in Raghubar Day-11. evidence and have made proper use of it.

The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Guiab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased.

We therefore dismiss the appeal.

Appeal di.rmi1sed.

BALMUKAND

KAMLA WA TI & ORS.

(K. SUBBA RAo AND J. R. MuDHOLKAR JJ.)

Contract by manager to sell joint property-Specific Performance when

nrdered-Hindu Law-Joint family.

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 1noney was paid to the karta.

As the karta did not execute the sale deed the appellant instituted a suit for specific performance. The other members who are the brothers of the k:arta and who were adults

(') A.I.R. 1962 Raj 3.

134-159 S.C.-21 (') 1959 All. L.J. 340.

Januaryt 21,

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 11atisficd from the material before it that it was in fact such as con ferred or was necessarily expected to confer benfit on the family at the time it was entered into.

(ti) No part of the joint family property coc, J be parted with or

eed to be parted with by the manager on the grouncl of alleged benefit to the family when the transaction is opposed by the :101Jit 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 the case the courts below were justified in refusing to order specific performance and the appeal is dismissed.

Jagatnarain v. Mathura Das, I.L.R. SO All. 969, Honooman Prasod Pandey v. Babooee Munraj Koonwaree, (1856) 6 Moo. I.A. 393, Sahu Ram Chandra v. Bhup Singh. l.L.R. 39 All. 437, Palaniappa Chetty v. Sreemath Daiya.rikamony Pandara Sannadhi, 44 I.A. 147, Sita/ Prasad Singh

v. Ajablal Mander, I.L.R. 18 Pat. 306 and In the matter of A. V. Va•udevan & Ors. Minors, A.I.R. 1949 Mad. 260. referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7 of 1962.

Appeal from the judgment and decree dated October 14, 1957 of the Punjab High Court in RF.A. No. 219 of 1950.

N. C. Chatterjee, H. L. Mittal, S. S. Khanduja and Ganpat Ral, for the appellant.

Ram Lubhaya and S. D. Sekhri, for respondents Nos. 1-12.

S. K. Mehta and K. L. Mehta, for respondents Nos. 13-15.

January 27, 1964. The Judgment of the Court was delivered by

MUDHOLKAR J.-This is a i; ilaintiff's appeal from the dismissal of his suit for specific i; ierformance of a contract for the sale of 3 /20th share of land in certain fields situate in Mauza Faizpur of Batala in the State of Punjab. He had instituted the suit in the court of Sub-Judge, First Class, Batala, who dismissed it in its entirety. Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff's claim for specific performance, modified the decree of the trial court in regard to one matter. By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas.

It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were, therefore, substituted in his place.

Agi¥ieved by the dismissal of his claim for specific performance the plaintiff has come up to this Court by a certificate granted by the High Court, under Art. 133 of the Constitution.

'The relevant facts are these:

The plaintiff owned 79/120th share in Kasra Nos. 494, 495, 496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi of 1943-43, situate at Mauza Faizpur of Batala.

On October 1, 1943 he purchased 23/120th share in this land belonging to op.e Devisahai. He thus became owner of 17 /20th share in this land. The remaining 3 /20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram, Khemchand and Satyapal were the members.

According to the plaintiff he paid Rs. 17 5 per maria for the land which he purchased from Devisahai. In order to consolidate his holding, the plaintiff desired to acquire the 3 /20th share held by the _joint family of Pindidas and his brothers. He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3 /20th share belonging to the family at the rate of Rs. 250 per maria.

'The contract in this regard was entered into on October 1,

Balmukand v.

Kamlawatl

M udholkar 1.

Balmukimd

"· Kam law a ti

Mudh/J/kar J.

1945 with Pindidas and Rs. l 00 were paid to him as earnest money. As the manager of the family failed to execute the sale deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto.

The suit was resisted by all the defendants.

Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1, 1945 and of having received Rs. 100 as earnest money.

According to him, however, that contract pertained not to the land in suit but to another piece of land.

He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants. 2 to 4 to the suit and are now respondents 13 to 15 before us.

The defendants 2 to 4 denied the exltence of any contract and further pleaded that even if Piadidas was proved to be the karta of the joint family and hall agreed' to sell the land in suit the transaction was not blnding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale.

The courts below have found in the plaintiff's favour that Pindidas did enter into a contract with him for the sale of 3 /20th share of the family land in suit and received Rs. 100 as earnest money.

But they held that the contract was not binding on the family because there was no nece:;- sity for the sale and the contract was not for the benefit of the family.

It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent circumstances and that there was no necessity for the sale.

But according to him, the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and, therefore, by converting it into money the family stood to gain.

He further pointed out that whereas the value of the land at the date of the transaction was Rs. 175 per maria only the plaintiff had agreed under the contract to purchase it at Rs. 250 per maria the family stood to make an additional gain by the transaction.

The substance of his argument was that the Manager of 11 joint

Hindu family has power to sell the family property not only for a defensive purpose but also where circumstances are such that a prudent owner of property would alienate it for a consideration which he regards to be adequate.

In support of his contention he has placed reliancjl on three decisions.

The first of these is Jagatnarain v.

Mathura Das('). That is a decision of the Full Bench of that High Court in which the meaning and implication of the term "benefit of the estate" is used with reference to transfers made by a Manager of a joint Hindu family was considered.

The learned Judges examined a large number of decisions, including that in Hanooman Persaud Pandey

v. Babooee Munraj Koonweree( 2 ); Sahu Ram Chandra v.

Bhup Singh ( 3 ) and Palaniappa Che tty v. Sreemath Daivasi kamony Pandra Sannadhi (') and held that transactions justifiable on the principle of benefit to the estate are not limited

to thme which are of a defensive nature.

According to the High Cour< if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property.

The facts of that case as found by the High Court were:

" ...... the adult managers of the family found it very inconvenient and to the prejudice of the family's interests to retain property, 18 or 19 miles away from Bijnor, to the management of which neither of them could possibly give proper attention, that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds, that they did in fact sell that property on very advantageous terms, that there is nothing to indicate that the transaction would not have reached a profitable conclu sion .... " (p. 979).

(1) I.L.R. 50 All. 969.

(') I.L.R. 39 AIL 437.

(~ (1856) 6 Moo. I.A. 393.

() 44 I.A. 147.

.1964

Mudholkar I.

Mudholkar J.

We have no doubt that 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 transaction would be for the benefit of the family must necessarily depend upon the facts of each case. In the case before the Full Bench the two managers of the family found it difficult to manage the property at all with the result, apparently, that the family was incurring losses.

To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the famiiy. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner.

Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. Ali that is said is that the fraction of the family's share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction.

But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai. There is nothing to indicate that the i;>osition of the family vis-avis their share in the land had in any way been altered by reason of the circumstance that the remaining l 7 /20th interest in the land came to be owned by the plaintiff alone.

Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in this suit.

The next case is Sita/ Prasad Singh v. Ajablal Mander(').

That was a case in which one of the questions which arose for consideration was the power of a manager to alienate part of the joint family property for the acquisition of new property. In that case also the test applied to the transaction entered into by a manager of a joint Hindu family was held to be the same, that is, whether the transaction was one into which a prudent owner would enter in the ordinary

(1) l.L.R. x8 Pat. 306.

course of management in order to benefit the estate. Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. In the course of his judgment Harries C.J. observed at p. 31-l:

". . . . . . . . the karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law-givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he mu_st act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct."

After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed:

"In exceptional circ:umstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necess<_try information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate."

These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the

Balmuka111/

•• Kamlawldl

Mudho/k., I.

•• Kam/awati

M wlholkar J.

contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice.

The other Judge who was a party to that decision, Mano:b.arlal J., took more or less the same view.

The third case relied on is In the matter of A .T. V asudevan & Ors., minors('). There a single Judge of the High Court held that the manager of joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction.

This view was expressed while dealing with an. application under cl. 17 of Letters Patent

by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia, to his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons.

The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application lhat the learned Judge considered the matter and from that point of view the decision is distinguishable.

However, it is a fact that the learned Judge has clearly expressed the opinion that the manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao J., in Sellappa v.

Suppan(2). That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges, upon the evidence before them, held that this particular transac-

(') A.I.R. 1949 Mad. >6o. (') A.I.R. 1937 Mad. 496.

tion was not established by evidence to be one for the benefit of the family.

Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was enered into.

We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiff's claim for specific performance and we have no doubt that they would not have done so if they were. satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff's claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.

In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.

No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of s. 15 of the Specific Relief Act which runs thus:

"Where a party to a contract is unable to perform the whole of his part of it, and the part which

Balmukand v.

Kamlawati

Mudholkar J.

Balmukand must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifi. cally so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the defici ency, or for the loss or damage sustained by him through the default of the defendant."

MudholklJI' J.

January, 27

However, in the case before us there is no claim on behalf ot the plaintiff that he is willing to pay the entire considera tion for obtaining a decree against the interest of Pindidas alone in the property. In the result the appeal fails and is dismissed with costs.

Appeal dismissed.

C. S. ROWJEE AND OTHERS

ANDHRA

PRADESH STATE ROAD TRANSPORT

CORPORATION

(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL, N.

R.AJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JI.)

Motor Vehicles-Nationalisation of road transport 1ervice-Pree.aration

and enforcement of scheme-Validity-Issue of permits fo State Transport Undertakings-Motor Vehicles Act, 1939 (4 of 1939), "' amended by Act I of 1956, Ch. IV, ss. 68C, 68D(3), 68F(l)- Andhra Pradesh Motor Vehicles Rules, 1957, rr 4, 141.

The respondent corporation appointed an expert committee to go into the question as to the working of nationalised ~nsport in the S_tate. i:ie Committee laid down the criteria for determining the order 1n which