BALZOR SINGH Vs. RAGHUNANDAN SINGH

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for pre-emption. The defendant was a stranger at the time of the institution of the suit and the plaintiff was a cosharer. During the pendency of the suit the defendant-vendee first obtained a deed of gift and then two deeds of exchange in order to defeat the claim for pre-emption. These gift and exchanges were obtained from persons, who were members of joint Hindu families and all the members had not joined in these transactions. The learned Subordinate Judge has accordingly held that these acquisitions do not confer an indefeasible interest in the mahal on the defendant- vendee and so do not entitle him to defeat the plaintiff's claim. He has further found that the gift was obviously voidable at the option of the other members of the donor's family and that the exchanges also were liable to be defeated because they were not for the benefit of the family of those persons from whom they had been obtained by the vendee. The learned advocate for the defendant-appellant argues, before us that there is nothing in the Hindu law which allows a Hindu son or a minor member of a joint Hindu family to challenge an alienation by way of exchange made by the father or the manager. The argument is that the power of disposal vested in the father is absolute and is only restricted by certain texts which curtail his power. It is pointed but that the ancient Hindu texts do not speak of exchanges, but only refer to sales and mortgages or gifts by the father. It is to be conceded that there is no express text which confers absolute authority on the father to transfer the joint family property by way of exchange. The learned advocate for the defendant argues that inasmuch as in transactions of sale, gift or mortgage the property is frittered away, which is not the case when an exchange is made, there ought to be a distinction.

(2.) It is not for us now to go back to the old ancient texts behind the authoritative commentaries. As observed by their Lordships of the Privy Council in Thakoorain Sahiba V/s. Mohun Lal [1866] 11 M.I.A. 386 at p. 403: To alter the law of succession as Established by a uniform course of decisions, or even by the dicta of received treatises, by some novel interpretations of the vague and often conflicting texts of the Hindu commentators, would be most dangerous, inasmuch as it would unsettle existing titles.

(3.) There can be no doubt that the principles governing the power of alienation of a father have been applied to transactions besides gifts, sales and mortgages. The same principles have been extended to the case of permanent leases. We may refer to the case decided by their Lordships of the Privy Council in Palaniappa Chetty V/s. Devasikamoney Pandara Sannadhi A.I.R. 1917 P.C. 33. It has to be conceded that the old texts do not refer to leases, just as they do not expressly refer to exchanges. In the Benares School of Hindu law the father is no longer the sole owner of the joint estate, but all the members by birth acquire an interest in it. His status is probably that of a manager though as against his sons he has the advantage of their pious obligation to pay his personal debts. It would therefore follow that in the absence of any express authority there would be no power in the father to alienate joint family property in which other members are also interested and who do not consent. In. numerous cases decided by their Lordships of the Privy Council his power regarding "alienations" have been referred to. An exchange is equally an alienation, We may refer to the case of Birj Narain Rai v. Mangala Prasad Rai A.I.R. 1924 P.C. 50, where the result of the authorities wag summarized by their Lordships of the Privy Council and the restricted power of the manager in the family property was emphasized. We must there, fore hold that a deed of exchange executed by a father or manager is liable to be challenged by the other members of the family if it was not executed for legal necessity or for the benefit of the estate. The transaction would however be binding on the other members if it was of such a nature as a prudent owner in the ordinary management of an estate would make.