# BALMUKAND v. KAMLA WA TI & ORS

- **Citation:** [1964] 6 S.C.R. 321
- **Court:** Supreme Court of India
- **Decided:** 1964-01-27
- **Case number:** Civil Appeal No. 7 of 1962
- **Bench:** K. SUBBA RAo, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balmukand-v-kamla-wa-ti-ors-3090
- **Pages:** 10

## Headnote

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.
1964
Januaryt 21,
1964
322
SUPREME COURT REPORTS
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 ben~fit 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.

## Text

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
v.
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
v.
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.
1964
Januaryt 21,
1964
322
SUPREME COURT REPORTS
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 ben~fit 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.
6 S.C.R.
SUPREME COURT REPORTS
323
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,
1964
Balmukand
v.
Kamlawatl
M udholkar 1.
1964
Balmukimd
"·
Kam law a ti
Mudh/J/kar J.
SUPREME COURT REPORTS
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 exl~tence 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
6 S.C.R.
SUPREME COURT REPORTS
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
Balmukand
••
Kamlawati
Mudholkar I.
1964
Balmukand
"·
Kamlawati
Mudholkar J.
326
SUPREME COURT REPORTS
[1g64J
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.
6 S.C.R.
SUPREME COURT REPORTS
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
1964
Balmuka111/
••
Kamlawldl
Mudho/k., I.
1964
Balmukand
••
Kam/awati
M wlholkar J.
328
SUPREME COURT REPORTS
[1g64]
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.
I
6 S.C.R.
SUPREME COURT REPORTS
329
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 en~ered 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
1964
Balmukand
v.
Kamlawati
Mudholkar J.
330
SUPREME COURT REPORTS
1964
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."
v.
Kamlawati
MudholklJI' J.
1964
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
v.
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