# 19oi .A.utomoln'l1 Transport (RaJJSthan) Ltd v. State of Rajasth1n

- **Citation:** [1963] 1 S.C.R. 648
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil AppeaJ No. 49 of 1958
- **Bench:** A. K. Sarkar, K. SuBBA RAo J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/19oi-a-utomoln-l1-transport-rajjsthan-ltd-v-state-of-rajasth1n-2622
- **Pages:** 10

## Headnote

and
Hindu Law-J<in.t f~n,ily p•~plrly-Sale by fatl"r and
minor son-Whel~.er b1.nd111g on ~mo; sor:- ~egal nec'8sily /Jr
part of sale consideration-If alienatwn ,iu.0tified- Inttrpretic'lt
of sale deed-If transfers cultivatory right• in Sir also-0. P.
•
Tenancy Act,-1920 (0. P. 1of1920), s. 49 (1).
R and his father executed a sale for Rs. 50,000/· transferring 16 annas in~rrcs~ in two villages belonging to the joint
family "together with sir and khudkashat lands ........ as well
as the cultivated and the uncultivated lands in the village
wilh all the rights and privileges". Subsequently. R filed a
suit to set aside the sale on the grounds that actually he was
a minor when he executed the sale deed and that the legal
necessity was only for Rs. 45,000/-. He further contended
that the cultivatory rights in the sir lands were not transferred
and claimed possession over them.
Held, that the alienation was for leg:>.! necessity and was
valid and binding. The alience was only required to e;tab'i>h
legal necessity for the transaction and it was not necessary for
him to show that every bit of the consideration was applied
for meeting family necessity. The transaction being for leg:>.!
necessity the father was competent to execute the sale deed
binding on the entire family :>.nd the joining of R, even
though he was a minor, did not aff<ct its validity or binding
character.
•
' ;
'
..
..
1 S.C.R.
SUPREME OOURT REPORTS
649
Sri KrMhan Das v. Nathu Ram, I. L. R. 49 All. 149
(P. C.) and Naimat Rai v. Din Dayal, I. L. R. 8 Lah. 597 (C.)
relied on.
Gharib-Ullah v. Khalak Singh, I. L. R. 25 All. 407 (C.)
Kanti Ohunder Goswami v. Bisheswar Goswami, 25 Cal. 585
Biraj Nopani Pura Sundary Dasee, 42 Cal. 56 (P. C.), refer·
red to .
Held, further, that cultivating rights in the sir lands had
also been expressly transferred to the vendees by the sale deed.
The provisions of s. 49 (1) of the C. P. Tenancy Act, 1920,
that there must be an express agreement between the transferor and the transferee concerning the transfer of the
cultivating rights in sir land are satisfied where the sale deed
not only transferred sir and Khudkashat lands, cultivated and
uncultivated lands but transferred these properties along with
''all rights and privileges", since they would include cultivating rights in sir land.

## Text

19oi
.A.utomoln'l1
Transport
(RaJJSthan) Ltd.
v.
State of Rajasth1n
Hidayc.tull ih J.
i962
Apil 11,
648
SUPREME COURT REPORTS [1963]
•
We would, therefore, allow the appeals, and
_,.
quash the demand made upon the appellants .
BY CoURT: In accordance with the opinion of
the majority, these appeals are dismissed with costs
one hearing fee.
'
Appwl dismisaed.
'
--
RADHAKRISHNADAS
ti,
KALURAM
•
•
(A. K. SARKAR, K. SuBBA RAo
J. R. MuDHOLKAR, JJ.)
and
Hindu Law-J<in.t f~n,ily p•~plrly-Sale by fatl"r and
minor son-Whel~.er b1.nd111g on ~mo; sor:- ~egal nec'8sily /Jr
part of sale consideration-If alienatwn ,iu.0tified- Inttrpretic'lt
of sale deed-If transfers cultivatory right• in Sir also-0. P.
•
Tenancy Act,-1920 (0. P. 1of1920), s. 49 (1).
R and his father executed a sale for Rs. 50,000/· transferring 16 annas in~rrcs~ in two villages belonging to the joint
family "together with sir and khudkashat lands ........ as well
as the cultivated and the uncultivated lands in the village
wilh all the rights and privileges". Subsequently. R filed a
suit to set aside the sale on the grounds that actually he was
a minor when he executed the sale deed and that the legal
necessity was only for Rs. 45,000/-. He further contended
that the cultivatory rights in the sir lands were not transferred
and claimed possession over them.
Held, that the alienation was for leg:>.! necessity and was
valid and binding. The alience was only required to e;tab'i>h
legal necessity for the transaction and it was not necessary for
him to show that every bit of the consideration was applied
for meeting family necessity. The transaction being for leg:>.!
necessity the father was competent to execute the sale deed
binding on the entire family :>.nd the joining of R, even
though he was a minor, did not aff<ct its validity or binding
character.
•
' ;
'
..
..
1 S.C.R.
SUPREME OOURT REPORTS
649
Sri KrMhan Das v. Nathu Ram, I. L. R. 49 All. 149
(P. C.) and Naimat Rai v. Din Dayal, I. L. R. 8 Lah. 597 (C.)
relied on.
Gharib-Ullah v. Khalak Singh, I. L. R. 25 All. 407 (C.)
Kanti Ohunder Goswami v. Bisheswar Goswami, 25 Cal. 585
Biraj Nopani Pura Sundary Dasee, 42 Cal. 56 (P. C.), refer·
red to .
Held, further, that cultivating rights in the sir lands had
also been expressly transferred to the vendees by the sale deed.
The provisions of s. 49 (1) of the C. P. Tenancy Act, 1920,
that there must be an express agreement between the transferor and the transferee concerning the transfer of the
cultivating rights in sir land are satisfied where the sale deed
not only transferred sir and Khudkashat lands, cultivated and
uncultivated lands but transferred these properties along with
''all rights and privileges", since they would include cultivating rights in sir land.
CIVIL APPELLATE JURISDICTION: Civil AppeaJ
No. 49 of 1958.
Appeal from the jud~ent and decree dated
April 17, 1954, of the former Nagpur High Court
in F. As. Nos. 95 and 103 and 1946.
8. P. Sinha, Y ogeshwar Prasad and M. I.
Khowaja, for the appellants.
Achhru Ram and Ganpat Rai, for respondents
•
Nos. I (a) to I (d)~ 2 and 4.
..
1962. April 10. The Judgment of the Court
was delivered by
l\IunHOLKAR, J.-This is an appeal by certificate
frf\m
the decree of the High Court of Nagpur
dismissing the appellants' suit for setting aside
sale of two villages mauza Amaldihi and mauza
Gondkbami situate in Mungali, tehsiJ,
district
Bilaspnr.
It is com non ground that the two villages,
a10:J.J with several others, were the joint family
pro.: 'rty of the appellants and their father the third
1962
Ra ihskrisk.11 Jiu
v.
Kaluram
1961
Radhak,ishnadas
..
Kalurum
M udho!lcar J.
650 SUPREME COURT REPORT~ [1963]
defendant, Gorelal. On April 8, 1944, Gorelal, acting for himself and as guardian of his minor son
Balramdas, appellant No. 2 and Radhakrishnadas,
appellant No. l describing himself as a major executed a sale deed in favour of two persons, Pandit
Ramlal, son of Motiram, defendant No. 2 and
Kalnram the first defendant for a consideration of
Rs. 50,000/-. It was stated in the sale deed that the
executants were transferring full 16 annas interest
in the village Amaldihi and Gondkhami "together
with sir and khwlkast lands, grass, lwthar padia gochar
rivers, brooks, wells, tanks, bandkies, orchards and
gardens and houses and the like, as well ae the
cultivated and the uncultivated lands in the village
wit.h all the rights and privileges."
The entire
sixteen annas share in mauza Gondkhami and
twelve annas share in mauza Amaldihi was sold to
Knluram for Rs. 37,500/- and the remaining four
annas sl1are of Amaldihi to Pandit Ramlal for
Rs.
12,500/-. Out
of
the
consideration of
Rs. 50,000/- a sum of Rs. 30,491/8/- was kept with
Kal11ram for satisfying a mortgage decree obtained
against the family by one Gayaram in respect of
these two villages as well as two other villages.
Similarly a further amount of Rs. 2,000/- was allowed to be retained by Kaluram for paying the
land revenue due in respect of these villages.
The
balance of the amount was received in cash. It
was further stated in the sale deed that this amount
was required for performing the marriages of the
appellant No. l Radhakrishnadas and Gorelal's dau·
ghtc: Ramjibai, who were both stated to be majors.
The possession of the property sold was handed
over to the defendant l and 2 who are respondents
1 and 2 to the appeal.
On May 5, 1945, the two appellants instituted
a suit out of which this app(\al arises. It was contended in the suit that since the income of the
,•
, (
l S.C.R.
SUPREME COURT REPORTS
651
family was Rs. 7,000/. per year, considerable savings
"~ , could be made out of it after defraying the expenses
of the family. There was, therefore, no necessity for
executing the sale deed. It W%s further stated that the
consideration for the sale was extremely low, bearing
in mind the value of the two villages. It was further
stated that the appellant No. 1 who was one of the
executants of the sale deed was in fact a minor on
the date of its execution and, therefore, the docu·
ment is void in so far as his interest in the property
sold is concerned. It was then stated that the sale
deed did not purport to transfer the cultivating
rights in the sir lands in the two villages and, there·
fore, in any case only the proprietary interest in the
sir land could pass to the respondents 1 and 2 under
the sale.
The trial court negatived the appellants' contention about the want of legal necessity for the sale
and found as a fact that Rs. 10,0JO were required
for the marriages of the appellant No. 1 and his
sister Ramjibai, Rs. 7, 508-8-0 for paying various
creditors, Rs. 1,655-2-0 for the payment of land
revenue and the balance to satisfy the mortgage
decree of Gayaram Sao. It, however, found that
the appellant No. I was a minor at the date of the
execution of the sale deed and that its execution by
him was void and ineffective. But it held that he
is bound by the sale deed as his father Gorelal, who
is respondent No. 3 to the appeal, is to be deemed
to have executed the sale deed as Manager of the
family. It, however, upon a construction of the
sale deed, came to the conclusion that cultivating
rights in sir were not transferred thereunder and,
therefore, p'.1ssed a decree in favour of the appel·
lants for p0ssesdion of the sir lands in the suit as
these lands had become
their
ex-proprietary
occupancy lands by virtue of s. 49 (1) of the C. P.
Tenancy Act, 1920 (C. P. I ofl920). The appellants
,
preferred an appeal before the High Court against
'that part of the decree which dismissed their claim
1962
Rad ltakriJhna4c•
v.
Ealuram
Mudholkar J.
I96Z
llA41tak risfrnatlas
••
Kuluram
Mlldl.olkar J,
652
SUPREME COURT REPORTS [I 963)
for the possession of their share in the villages.
The respondents 1 and 2 preferred a cross-appeal.
These appeals were heard together and while the
appellants' appeal was dismissed, that of the res·
pondents was allowed.
Before us Mr. S. P. Sinha accepts the position
that Rs. 45,000/· out of the consideration of
Rs. 50,000/· was in fact for debts binding on the
family, but contends that even so it cannot be said
that there was legal necessity for the sale. His
argument is that a sum of Rs. 5,000 or so for which,
according to him, legal necessity had not been
established was not a negligible part of the consi·
deration of Rs. 150,000/-.
This argument is based
upon a misapprehension of the true legal position.
It is well established by the decisions of the Courts
in India and the Privy Council that what the alience
is required to establish is legal necessity for the
transaction and that it is not necessary for him to
show that every bit of the consideration which he
advanced was actually applied for meeting family
necessity. In this connection we may refer to two
deoisiom of the Privy Council. One is Sri Kriahan
Da<1 v. Nathu Ram('). In that case the consideration for the alienation was Rs. 35,000/ ·.
The
alience was able to prove that there was legal
necessity only to the extent of Rs. 3,000/· and
not for the balance. The High Court held that
the alienation could be set aside upon the plaintift"s
paying Rs. 3,000/- to the alience. But the Privy
Council reversed the decision of the High Court
observing that the High Court had completely
misapprehended the principle of law applicable to a
case of this kind. What the alienoe has to establi3h
is the necessity for the transaction. If he establishes
that then he cannot be expected to establish how
the consideration furnished by him was applied by the
alienor. The reason for this, as has been stated by
the Privy Council in some other oases, is that the
(I J I L.R. 49 All. H9 (P.C.)
1 S.C.R.
SUPREME OOURT REPORTS 6f>3
a.Hence can rarely have the means of controlling
and directing the actual application of the money
paid or advanced by him unless he enters into the
management himself. This decision wa.s followed
by the Privy Council in Niamat Bai v. Din Dayal (1)
where at p. 602 and 603 it has observed:
"It a.ppE>ars from the judgment. of the
learned Judges of the High Court that if
they had been satisfied that the whole of the
Rs. 38,400 paid out of the sale proceeds was
paid in discharge of debts incurred before
the negotiation of sale, they would have been
of opinion that the sale ought to,have been
upheld. With this conclusion their Lordships
agree, but they a.re of opinion that undue
importance was attached by the learned Jud·
ges to the question whether some of the pay·
ments where made in discharge of debts 'in·
curred in the ~nterval between the negotiation of the sale ·and the execution of the sale
deed. Even if there had been no joint family
business, proof that the property had been
sold for Rs. 43,500 to satis(v pre-existing
debts to the amount of Rs. 38,000 would have
been enough to support ' the sale without
showing how the balance had been applied,
as held by their Lordships in the recent case
of KriskanDas v. Nathu Ram. (1)"
Both these decisions state tbe correct legal position,
Mr. Sinha.'s argument must, therefore, be rejected.
His next argument is that the appellant No. 1
R&dhakrishnadas having been found to be .a minor
on the date of the transaction, that transaction
cannot bind his interests. If the appellants' father,
Gorelal, who was admittedly the manager of the
family, had not joined in the sale deed, the appellant
No. I could have contended with profit that the
transaction does not bind him. As it is, his joining
{I) J.L R 8 Lab. S97 lP,C.)
(2) 1 L. R. 49. All. 149 (P.C.)
1962
RadAakrishna""3
••
Eoluram
M udholkat' I.
-
1962
Radhakrishnadas
v.
Ira/uram
Mudho/k¢r J,
654
SUPREME COURT REPORTS (1963)
as an executant in the sale deed does not make any
difference. The fact that that sale deed had been
executed also by his father who was the manager of
the family makes the transaction binding upon him
just as it is admittedly binding upon his brother,
the second appellant, who was then a minor. Mr.
Sinha, however, contended that the fact that the
appellant No. 1 was required by the alience, respondents 1 and 2. to join in the transaction clearly
shows that Gurelal in executini; the sale deed did
not and could not act for him. We cannot accept
the argument. For ascertaining whether in a particular transaction the manager purports to act
on behalf of the family or in his individual
capacity one has to see the nature of the transaction
and the purpose for which the transaction has
been entered into. A manager does not cease
to be a manager
merely because in the transaction entered into by him a junior member of
the family, who was a major, or believed to
be a major, also joined. It is not unus11al for
alienees to require major members of the family
to join in transactions entered into by managers
for ensuring that later on no objections to the
transaction are raised by such persons.
l!'urther,
such circumstance is relevant for being considered by the court while determining the existence
of legal necessity for such a transaction.
But that
is all. Here we find th!tt Gorelal acted not merely
for himself but also expressly for his minor son
appellant No. 2.
The money was required partly
for paying antecedent debts, partly for paying pub·
lie demands, partly for paying other creditors and
partly for performing the marriages of appellant
No. 1 and the latter's sister Ramjibai. It is thus
clear that Rs. 45,000/· out of the consideration of
Rs. 50,000/- were required for the purposes of the
family. Even where such a transaction has been
entered into solely by a manager it would be deemed to be on behalf of the family and binding on
it. The position is not worsened by the fact that
•
1 S.C.R.
SUPREME COURT HEPORTS
655
a junior member joins in the transaction and certainly not so when the joining in by such junior
member proves abortive by reason of the fact that
that member has no capacity to enter into the transaction because of his minority. In this connection
we may make a mention of three dedsions GharibUllah
v.
Khalak
Singh (1); /
T<.anti
Ohunder
Goswami v. Bisheswar Goswami (2); Bijrai N opani
v.
Pura
Sundary
Dasee (3)
each of
which
preceede upon the principle that if one of the ex:ecutants to a sale deed or mortgage deed has the
capacity to bind the whole estate, the transaction
will bind the interest of all persons who have interest in that estate.
We have, therefore, no doubt that the second
contention of Mr. Sinha is equally devoid of substance.
Lastly, Mr. Sinha contended that the High
Court was in error in reversing the decree of the
trail court in so far as the sir land is concerned.
He has laid particular stress on the fact that the
sale deed at no place says in express terms that
cultivating rights in sir land have also been transferred and said that the absence of such a recital
in the sale deed clearly entitles the alienors to retain
possession of the sir land, under the exception set
out in cl. (a) of s. 49 ( 1) of the C. P. Tenancy Act.
The relevant portion of s. 49( l) of the Act runs
thus:
"A proprietor who ...... loses ...... under .••...
a transfer ...... his right to occupy his sir
land . . . . . . as a proprietor, shall, at the date
of such loss, become an occupancy tenant of
suoh sir land exoept in the following oases,
(a) when a. transfer of such sir land is ma.de
(I) I.L.R.. 2S All. 407,415 (P.C.)
i2) 2S Cal. 585 F.B.
(3) 4-l Cal. 56 (P.C )
I!Jfi2
Radhalu is 1mada1
v.
KaJuram
.\1udholka1 J.
1968
R•tlhaluisli.ond••
••
Kaiuram
Muahlkar J.
656 SUPREME COURT REPORTS [1963]
by him expressly agreeing to transfer
his right to cultivate such sir land, ...... "
What this provision no doubt requires is an express
agreement between the transferor and the trans.
feree concerning the transfer of the cultivating rights
in sir land. We have already quoted the precise
language used in the document describing the interest which has been transferred under the sale deed.
The recital shows that the executant of the sale
deed not only transferred sir and khudkast lands,
cultivated and uncultivated lands, but transferred
these properties along with "all rights and privileges''. If the intention was not to transfer the cultivating rights in Bir lan<ls the concluding words
were not necessary.
Each interest which has
been specified in the recital is governed by the concluding words "all the rights and privileges" {iontained in that recital. In the absence of these
words what would have passed under the sl).le deed,
in so far as the sir land is concerned, would 'have
been only the proprietary interest in that land.
The question is, what is the effect of the addition
of those words ? According to Mr. Sinha they only
emphasise the fact that the entire propreitary in
the sir land is transferr11d. If we accept the interpretation ·then those words would be rendered otiose. That would not be the right way of interpreting a formal document. To look at it in another
way, where a pers!ln transfers sir lands together
with "all rights and privileges" therein he transfers
everything that he has in that land which must
neoessarily include the cultivating right. It would
follow from this that where there is a transfer of
this kind no kind of interest in Bir land is left in
that person thereafter. Mr. Sinha further said that
when the statute requires that cultivating rights in
Bir land must be expreBBly transferred it makes it
obligatory on the parties to say clearly in the doou·
ments that cultivating rights in the Bir land have
also been transferred. We see no reason for placing
1 S.C.R.
SUPREME COURT REPORTS
657
such an interpretation on the provisions of cl. (a)
of s. 49(1) of the C. P. Tenancy Act. When it
says tha.t the transfer of cultivating rights in sir
land has to be made expressly all that it means is
that a transfer by implication will not be enough.
Finally Mr. Sinha's point is that the words "all the
rights and privileges" in the recital do not govern
the interests specified in the clause just preceding
these words but they govern following words "sixteen anna. in mauza Gondkhami and twelve a.nna in
mauza Amaldihi to Seth Kaluram etc ... .'' Apart from
such a construction rendering the expression
meaningless it would be ungrammatical to read the
expression as applying to ''sixteen anna in mauza
Gondkhami and twelve anna in mauza Amaldihi
etc."
Therefore, there is no substance in the appeal
and accordingly we dismiss it with costs.
Appeal dWn,issed.
AMAR NATH DOGRA
v.
UNION OF INDIA
(B. P. SINHA, c. J., P. B. GAJENDRA.GA.DKAR, K. N.
WANOHOO, N. RAJAGOPA.L.A AYYANGAR and
T. L. VENKA.TA.RAMA. .A!YAR, JJ.)
Suit again•t Government-Notice-Plaint not conforming
to Civil Procedure-Maintatnability-Punjab Ezcise Act (Punjab
Act I of 1914), S. 40-0ode of Civil Procedure (Act v. of
1908), 8. 80.
The appellant who obtained a monoply vend-licence for
the retail sale of country-liquor, served during the subsistance
of the license a notice under S. 80 of the Civil Procedure Code
on the Government claiming damages for the alleged breach
of certain stipulations.
Thereafter the Excise Authorities
11162
Radhakrishnadtls
v.
Ealurum
MudhollcarJ.
1962
.April JO,