Balmukand vs Kamla Wati & Ors on 27 January, 1964

The appellant entered into a contract with the karta for the
purchase
This

of

property belonging to a

joint

Hindu

family.

property consisted of a fractional share belonging

the family in a large plot of land.

to

Earnest money was

the karta. As the karta did not execute the

the

appellant instituted a suit for

to
paid

saledeed

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
as

defendants.

suit

The suit was resisted on the ground that

there was no legal necessity and that the contract for

was

not for the benefit of the family.

sale

The trial court

as

well as the High Court upheld these contentions.

Before this Court it was contended that even
was

though

of

no legal necessity the transaction was for the

there

the family which the karta as

a prudent

benefit

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

defensive character, but what transactions would be for

benefit of

the

family

would

circumstances of each case.

satisfied
such

as

depend on

the

the
facts and

In each case the Court must

from the material before it that it was

conferred or was necessarilyexpected

be

in

to

fact

confer

benefit on the family at the time it was entered into.

(ii) No part of the joint family property could
with

or

agreed

to be parted with by the

be

manager

parted
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

the

courts

below

were

justified

in

thecase

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

possession

of

alienations

made by her husband on January 4 and

It

1/6th share after

setting

aside

was alleged that at the time of the deathof

and

the

5,

1944.

'A' his

youngest wife was pregnant and that she gave birth to a male
child
most

on October 4, 1944.

On January 30, 1944, the

widow took her sister's son in adoption.

before his death 'A' executed two deeds of

favour of his two wives (defendant Nos.

senior
A

few days

maintenance

in

1 and 2) and

also

executed deeds of gift in favour of widowed daughter, a

of

an illegitimate son and a relative.

death

he

also executed

two deeds

viz

Long
one a

son

before his
deed

of

maintenance and a deed of gift in favour of the senior

widow

(the

plaintiff).

To this suit the two

made defendants 1 and 2; the alleged adopted son,

3,

most

widows were
defendant

(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

defendants

to

8. These two appeals

the

alienees

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

alienations made in favour of the plaintiff and was

the
equally

justified in setting side the alienations made in favour

defendants
"A"

1 and 2. The former documents were

in 1937

coparcenar

and

1939 when

he

was the

of

executed

sole

by

surviving

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

alienatefor value joint family property either for

or

surviving

member of a coparcenary has an absolute power

there

is

the benefit of

the

family

necessity

alienate

for

to,

estate.

the family property, as at the time of

no

other member who has joint

If another member was conceived in the

inducted

therein by adoption the power of the

to

alienation

interest

family.

The sole

in

family

the
or

manager was

circumscribed as aforesaid and if the alienations were

by

the manager or father for a purpose not binding

estate,

they would

be

voidable

at

the

on
instance

subsequently born son or adopted son.

Avdesh Kumar v. Zakaul Hassain, I.L.R. [1944] All 612, Chan-

made
the
of

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
by

the manager

the

of

the

family is

void

ashe

property

has not

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

daughter or a sister, as the case may be, to have a share in

the family property at the time of partition.
lost

by efflux of time.

The right was

But it became crystallized into

moral obligation.

The father or his representative can make

way of

valid

gift by

maintenance
financial

of the

reasonable provision

for the

daughter, regard being had

to the

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

customary occasion for such a gift.

Marriage

is

only

But the

499
moral

obligation

can be discharged at

any

time,

during the life time of the father or thereafter.

either
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)

Vengidsami

Iyer,

21 M.L.J. 695,
(1898)

I.L.R. 22

Ramaswamy Aiyyar
Mad.

113,

v.

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

Chandrika

has never

adopted son

been followed and

the

share

in competition with a natural born

Sudras has always been 1/5th in the family

after

is

born

that

among

natural

Sudras an

son take equal

of

son

among
i.e.

Dattaka

adopted
share

an

property,

1/4th of the natural born son's share.The rule in

Chandrika

Dattaka

son

in

and

the

an

family

property and it is followed in Madras and Bengal provinces.

Tirkangauda Mallangauda v. Shivappa Patil, I.L.R. 1943
706,

Gopal Narhar Safray v. Hanumant Ganesh Safray,

Bom-

I.L.R. 3
I.L.R. 40

Bom. 273, Gopalan

v.

Venkataraghavulu,

Mad. 632 and Asita v. Nirode, (1916)

(1879)
(1915)

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
Mahadu v.
approved.

Ramachandra Mahadu, (1925) I.L.R. 49

Tukaram
Bom.

672,

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