Srinivasa Naicker vs Ponnammal And Another

Ramamurti, J.—These two second appeals arise out of two suits filed by the plaintiff for recovery of possession of the properties comprised therein. The points which arise in both the second appeals are the same and may be briefly stated. Under Ex. A-l dated 12th November, 1953, a partition was effected by a registered document, under which, amongst other things, the properties set out in the D Schedule were allotted to one Pandurangan and Alagarsami. The said partition was effected between one Venkitamani Naicker (referred to herein as he grandfather), his son Parasurama Naicker, and the letter''s sons through his two wives. Soodai Ammal), the second wife of Parasurama Naicker and the mother of Pandurangan and Alagarsami, represented the latter as their guardian at the partition. At that patition, the D Schedule properties were allotted to the two grandsons with a debt of Rs. 3,100 to be discharged from and out of their share. From the birth register extracts filed in this case, Ex. A-19 representing Pandurangan and Ex. A-20 representing Alagarsami, it is found that Pandurangan attained majority on 4th November 1952 while Alagarsami became a major on 17th October, 1955. Even though Pandurangan had attained majority even in 1952, the partition deed, proceeded on the footing that he too was a minor. Ten days after the partition, the mother, acting as the guardian of her two minor sons, executed the document Ex. B-l dated 22nd November, 1953, under which it was provided that the debts allotted to the share of the minors would be discharged within ten months from that date, and in default thereof, the grandfather himself may sell the grandsons'' properties to other creditors and discharge the debts without reference to her or her sons. The facts of the case reveal that this document was not acted upon or given effect to.

Under Ex. B-5 dated 14th June, 1954, Soodai Ammal, the mother, appears to have sold some properties which fell to the share of her sons at the partition for a sum of Rs. 800 and discharged certain debts. Under EX. B-3, dated 19th June, 1958, the grandfather Venkitasami Naicker appears to have sold the suit properties to the defendant in O.S. No. 124 of 1959 for a sum of Rs. 1500. On the same day he had also executed another sale deed under Ex. B-4 dated 19th June 1958 in favour of the defendant in O.S. No. 136 of 1959 (she being the wife of the defendant in O.S. No. 124 of 1959) for a sum of Rs. 1500. The recitals in the sale deeds show that out of the sum of Rs. 3000 stipulated under both the sale deeds, a sum of Rs. 2025-75 nP., was to be utilised for the discharge of debts and the balance to be paid by cash. Shortly thereafter, as soon as Pandurangan and Alagarsami came to know about the sale by the grandfather, they raised their objections under Ex. A-18 dated 23rd June 1958, and they also subsequently sold the property to the plaintiff for a sum of Rs. 3000 under Ex. A-4 dated 4th July, 4959.

The question is whether the plaintiff, who has purchased the properties from Pandurangan and Alagarsami, is entitled to the possession of the properties as against the defendants who claim title under the sale deeds executed by the grandfather. The trial Court decreed the plaintiff''s claim, but at the same time imposed a condition that as a portion of the debts binding upon the plaintiff''s vendor had been discharged, the plaintiff is bound to pay to the defendant a sum of Rs. 525-75 nP., in O.S. No. 124 of 1959 and a sum of Rs. 1500 to the defendant in O.S. No. 136 of 1959. The trial Court also provided that the plaintiff will be entitled to recover possession only after the payment of the aforesaid two sums. On appeal by the defendant, however, the learned Subordinate Judge took a different view and dismissed the plaintiff''s suit. Hence the second appeal by the plaintiff.

As the defendant''s right and title to the property rests upon the authority which was conferred upon the grandfather under Ex. B. 1, it becomes necessary to consider its precise scope and validity. Mr. Natesan, learned Counsel for the appellant, contends that if Ex. B. 1. were to be construed as creating any interest in immoveable property, it is inadmissible for want of registration. But if it should be construed as an agency, having regard to the terms of the arrangement, it won''t be binding upon the plaintiff''s vendor, as it is clearly in excess of the powers of the mother as guardian. He also contends that in any event such power as was conferred under Ex. B. 1, came to an end the moment the sons became majors. In the forefront he pointed out that even as early as 4th November 1952, Pandurangan, the eldest son, had become a major, and, therefore, there was factually and legally no basis for regarding the mother acting as a guardian having any authority to deal with the property. It is obvious that the moment Pandurangan had become a major the property clearly vested in him as a managing member of the family and there could be no question of the mother having any vestige of authority or power in regard to the properties. I see considerable substance in this contention and this is sufficient to dispose of the second appeals upholding the plaintiff''s claim.

Even if it is assumed that the sons were minors at the time when Ex. B. 1, was executed, the arrangement brought about under Ex. B. 1, is clearly in excess of the powers of a guardian. The partition arrangement was entered into on 12th November, 1953, and a specific provision has been made for the discharge of debts allotted to the minors'' branch. I see no justification for the mother to enter into this arrangement within ten days thereafter, practically delegating all her powers and conferring at the same time unfettered powers upon the grandfather. It cannot be justified under any principle of Hindu Law. The terms of the document are onerous from the point of view of the minors and there is no compulsory obligation upon the grandfather to sell the properties or to discharge the debt in the first instance or to effect a sale within any time limit.

Apart from any question of binding nature under the Hindu Law, whatever power has been conferred upon the grandfather, it came to an end when the sons became majors and also repudiated the grandfather''s authority. It must be remembered that the grandfather was an agent under the mother, and when the mother''s authority itself came to an end, there is no question of the authority conferred upon the grandfather subsisting thereafter. I am clearly of the opinion that the principle underlying S. 210 of the Contract Act that the authority of the sub-agent comes to an end when the authority of the agent is terminated, equally applies to the instant case.

Learned Counsel for the appellant referred me to Art. 6 at page 14 of Bowstead on Agency to the effect that capacity to contract or do any other act by means of agent is co-extensive with the capacity of the principal himself to make the contract or do the act which the agent is authorised to make or do. He also referred me to the statement of the law in Restatement of the Law of Agency, S. 124 at page 317 and to S. 137 at page 347 to the same effect. Learned Counsel urges that the authority which was given to the grandfather was to effect a sale as an agent of the mother and that the mother''s authority itself came to an end after the attainment of the majority of the sons and therefore the power cannot be effectuated thereafter. The result, therefore, is that the two sale deeds, Exs. B. 3 and B. 4, executed by the grandfather do not affect the rights of the plaintiff''s vendors and do not convey or confer title to the defendants in both the suits. The second appeal are therefore allowed, but subject to the same condition as was imposed by the trial Court. The plaintiff will have his costs in both the Courts, but no costs here in the second appeal. Leave refused.