The defeated second defendant is the appellant herein.
2. The plaintiffs filed the suit, in O.S.No.328 of 1995, before the learned Principal District Munsif, Pudukottai, seeking the relief of partition and separate possession of 3/4th share in the suit properties and for costs.
3. After contest, the learned Principal District Munsif, Pudukottai, by Judgment and Decree, dated 31.07.1997, dismissed the suit.
4. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Pudukottai, the plaintiffs preferred an appeal, in A.S.No.157 of 1997, before the learned Principal District Judge, Pudukottai.
5. After contest, the learned Principal District Judge, Pudukottai, by Judgment and Decree, dated 31.03.1999, allowed the appeal, set aside the Judgment and Decree of the learned Trial Judge and passed a Preliminary Decree allotting 1/4th share to each of the plaintiffs.
6. Challenging the correctness of the Judgment and Decree passed by the learned Principal District Judge, Pudukottai, the defeated second defendant has preferred the present second appeal.
7. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The suit properties are undivided joint family properties of the plaintiffs and the first defendant. The suit properties were purchased out of the income derived from the ancestral properties as well as the other joint family properties. After the demise of the predecessors-in-title, the plaintiffs and the first defendant inherited the possession and enjoyment of the suit properties. The first defendant, in the capacity of the Family Manager and the eldest member of the family, had been in joint possession of the suit properties with the plaintiffs. Therefore, each of the plaintiffs are entitled to 1/4th share in the suit properties. In such circumstances, the second defendant interrupted the plaintiffs' possession of the suit properties on the ground that the first defendant had sold the suit properties to him. Therefore, the plaintiffs sent a legal notice, dated 26.05.1994, to the first defendant seeking allotment of their share in the suit properties. Since, there was no reply, the plaintiffs filed the suit.
8. The brief averments of the written statement filed by the second defendant that are necessary to decide this appeal are as follows: The plaintiffs and the first defendant are joint family members. The first defendant is having two wives. After the demise of the first wife, who is the mother of the first plaintiff, he married Mariammal, who is the mother of the plaintiffs 2 and 3 and living together in Sathankadu Vettikadu Village, Pattukottai Taluk. The first defendant along with his brothers had already sold the joint family properties to the second defendant. After selling the joint family properties, the remaining properties were the suit properties and a house thereon. In order to meet the family expenses, the first plaintiff and the first defendant sold the suit properties to the second defendant and obtained the sale consideration. Therefore, the plaintiffs have no right over the suit schedule properties. Now, under the inducement of the first defendant in order to grab money from the second defendant, the plaintiffs filed the suit. Since the except the suit properties other properties have not been included in the partition suit, the suit itself is not maintainable. The second defendant is in possession and enjoyment of the suit properties for the past eight years. Since the plaintiffs and the first defendant are not in possession of the suit properties, the suit should be valued under Section 37(1) of the Tamil Nadu Court Fees Act and proper Court fee should be paid and on that ground also, the suit is liable to be dismissed.
9. Based upon the above pleadings, the Trial Court had framed three issues for consideration.
10. On the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A5 were marked and on the defendants side, D.Ws.1 and 2 were examined and Exs.B1 to B9 were marked.
11. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that in order to meet the family expenses, the first defendant sold the suit properties to the second defendant and therefore, the plaintiffs are not entitled to 3/4th share in the suit properties and dismissed the suit accordingly.
12. As stated supra, aggrieved by the Judgment and Decree of the learned Principal District Munsif, Pudukottai, the plaintiffs preferred first appeal in A.S.No.157 of 1997, before the learned Principal District Court, Pudukottai and the learned First Appellate Judge, on re-appreciation of the entire oral and documentary evidence, allowed the first appeal, set aside the Judgment and Decree of the learned Trial Judge and passed a Preliminary Decree allotting 3/4th shares in the suit properties to the plaintiffs.
13. At the time of admission, the following substantial question of law was framed for consideration:
Whether the judgment of the lower Appellate Court is vitiated inasmuch as there is no clear finding that the sale deed by the father of the plaintiffs in favour of the second defendant / appellant was not supported by proper consideration?
14. The admitted facts matrix are as follows:-
The respondent/plaintiff filed a suit for partition of the schedule property, on the ground that, the first defendant is the father and the first plaintiff is the son through the first wife of the first defendant. While, the plaintiffs 2 and 3 are the daughters of the first plaintiff through second wife Mariammal and sought the partition of 3/4th share in the suit property on the ground that, the suit property is the joint family property.
15. Per contra, the the appellant/the second defendant herein filed written statement admitting the relationship between the parties. But, however denied that for valuable consideration, the first defendant viz., father of the plaintiffs who is the kartha of the joint in the family have sold in the property for valuable consideration 8 years before the institution of the suit and also contended the suit is bad for partial partition.
16.The Trial Court on consideration of the oral evidence of the plaintiff, P.W.1 and documentary evidence, Exhibits A1 to A5 and the defendant side witnesses, D.W.1 and D.W.2 with documentary evidence of Exhibits B1 to B9, came to the conclusion that, the first defendant, who remained exparte, as a kartha of the family have sold the property for valuable consideration to the second defendant and therefore, the partition suit is devoid of merits and rejected the reliefs.
17. On appeal, the Principal District Judge, Pudukottai on the oral appreciation of the evidence has held that, the appellant/second defendant has not proved what is the legal necessity for the first defendant to sell the property and without enquiring the character and nature of the property, he has purchased and accordingly allowed the appeal, granting a preliminary decree for 3/4th share in the suit property and hence, the second defendant preferred this appeal.
18. The above Second Appeal has been admitted on the above substantial question of law.
19. The learned counsel for the appellant would contend that the Lower Appellate Court has wrongly shifted the burden of proof on the second defendant to prove the legal necessity and without no clear finding regarding the sale deed by the father of the plaintiff in favour of the second appellant/defendant has wrongly held sale is not supported by proper consideration.
20. On perusal of the pleadings and the evidence, it is not in dispute that the suit property is a joint family property. The 1st respondent/first plaintiff who is the son of the first defendant in the suit through the first wife examined himself as P.W.1 and in the cross-examination. He has admitted that "vdf;F KUf;iff; bfhy;iyapy; FLk;g ml;il ,Uf;fpwJ/ vd; mg;ght[f;Fk; mnj Kfthpapy; jhd; FLk;g ml;il cs;sJ/ vd; mg;gh gl;Lf;nfhl;ilapy; jdpahf ,Uf;fpwhh;/ vd; mg;ght[k; KU';iff; bfhy;iyf;F tUthh; nghthh;/ Rkhh; 10 tUlkhf v';fis tpl;L tpl;L jdpahfj;jhd; ,Uf;fpwhh;/ vd; mg;ght[f;F ntW ve;j bfl;l gHf;fKk; fpilahJ/ KU';iff; bfhy;iy Kfthpapy; v';fSf;F FLk;g ml;il ,Uf;fpwJ/ mg;ghit mof;fo ghh;;f;Fk; gHf;fk; cz;L///////"
nghfpw tHpapYk; tUfpw tHpapYk; ghh;g;ngd; vd; mg;ghit mof;fo ehd; ghh;j;Jf;bfhz;Ljhd; ,Uf;fpnwd;/ 7.8 tUlkhf ehDk; vd; rpj;jp khhpak;kht[k; xd;whfj;jhd; ,Uf;fpnwhk;/ the appellant/second defendant who has purchased the property from the 1st defendant/respondent as D.W.1 as stated...
"////////uhkrhkp mtUila FLk;g brytpw;fhf jhth brhj;ij vdf;F fpuak; tpw;whh;/ uhkrhkpf;F ve;j bfl;l gHf;fKk; fpilahJ/ tptrha ntiy bra;tJ K:ykhf uhkrhkpf;F tUkhdk; te;jJ/ tUkhdk; uhkrhkpf;F gj;jhjjhYk; cs;S:hpy; ,Ue;J gpiHf;f KoahJ vd;w vz;zj;jpy;jhd; jhthr; brhj;ij vdf; fpiuak; tpw;whh;/ fpuag;gj;jpuk; gp/rh/rh/M/2 ,th;fs; g{h;tPf brhj;ij 1k; gpujpthjpapd; ,ju rnfhjuh;fSk; mth;fSila brhj;ij ntW egh;fSk; fpuak; bfhLj;Js;shh;fs;/ me;jf fpuag;gj;jpuj;jpd; rhd;wpl;l efy;fs; gp/th/rh/M/3 Kjy; gp/th/rh/M/5 tHf;fpw;fhf thjp nun$e;jpud; 2k; gpujpthjpf;F mDg;gpa mwptpg;g[ gp/thrh/M/6 mjw;F 2k; gpujpthjp bfhLj;j gjpy; mwptpg;g[ gp/th/rh/M/7 fpuak; th';fp gpw;ghL 2k; gpujpthjp nfzp btl;o mDgtk; bra;fpwhh;/ jhth brhj;Jf;F gpujpthjp brYj;jpa thp urPJfs; gp/th/rh/M/8 kw;Wk; gp/thrh/M.9 MFk;/ thjp gp/th/rh/M2 go brhy;ypa[s;s brhj;J tptuk; jtW vd bjhptpj;jhYk;. 2k; gpujpthjp gp/th/rhM2 go fpuak; th';fpa brhj;jpd; ed;bfy;iyia ghyfpUcp;zd;. rpd;dj;jk;gp ,lj;jpw;F bjw;F rpd;dj;jk;gpapd; g[";irf;F fpHf;F milf;fyk; g[d;irf;F tlf;F. fkyk;khg; rKj;jpuk; Fsj;jpw;F nkw;F. ,e;j ehd;bfy;iyf;F cl;gl;l brhj;ij ehd;jhd; mDgtk; bra;J tUfpnwd;/ The elder brother of defendant Ramasamy was examined as D.W.2, who could deposed as follows:- gp/th/rh/M2.1k; gpujpthjpapd; rnfhjuh; milf;fyk; MFk;/ ///////"tha; K:ykhf ,th;fs; g{h;tPf FLk;gr; brhj;ij gphpj;J bfhz;ljhft[k; MSf;F 55 FHp vd 3 ngUk; xJf;fpf;bfhz;nlhk;. tlf;nf cs;s ghfj;ij uhkrhkpf;F xJf;fpndhk;. eLg;ghfj;ij ehd; vLj;Jf;bfhz;nld;. Mf bjd;g[wk; cs;s ghfj;ij fUg;igaht[f;F xJf;fpndhk;/////"
uhkrhkpf;F xJf;fpa brhj;jpd; ehd;bfy;iyia rpd;idahtpd; brhj;jpw;F fpHf;F. rpd;idah ghyfpUcp;zd; g[";irf;F bjw;Fk;. fkyk;ghs; rKj;jpuk; Fsj;jpw;F nkw;Fk;. milf;fyk; brhj;jpw;F tlf;nf cs;sJ/ me;j brhj;ij 2k; gpujpthjp j';fnty; jhd; mDgtk; bra;J tUfpwhh;;/ nkYk; ".....1k; gpujpthjp uhkrhkp FLk;gr; brytpw;fhfj;jhd; brhj;ij tpw;whh;/ vd; jk;gp uhkrhkpf;F ve;jtpjkhd bfl;l gHf;fKk; fpilahJ//////"
21. From the evidence of the P.W.1 and admission made by the P.W.1 in the cross examination, it is seen that both the first plaintiff and the first defendant are residing in the same address as admitted by him and that in the family ration card, both address given are one and the same. Even the legal notice issued under Ex.A1 also to the same effect and hence the version of P.W.1 that his father is residing elsewhere could not be accepted. In view of the specific admission of the P.W.1. Furthermore, the D.W.1 in his evidence has categorically stated that he has purchased the suit property from the second defendant, Ramasamy under Exhibit B2 and the said Ramasamy, the father of the plaintiff, along with his brother have sold the entire family property in the village to various persons under Exhibit B3,B4,B5 goes to show that, even on the date of the sale of Ex. B2, suit property, the other property belong to the joint family have been sold by the second defendant Ramasamy along with his brother against which no relief has sought for or no relief of partition has been sought for by the plaintiff goes to the root of the matter, as claimed by the defendant that the suit is bad for partial partition in respect of the joint family property covered under Exhibits.B3,B4,B5. The said version of D.W.1 is stands duly corroborated by the evidence of D.W.2, the elder brother, who is also attester of the sale deeds. The D.W1, has categorically admitted in the cross examination that there is a specific recital under Exhibit B2, sale deed that the Ramasamy has sold the property in the capacity as kartha of the family in order to meet the family expenses and to clear family debts who is found to be sufficient reason for selling the property for the welfare of the family by the Ramasamy, for and on behalf of the minors viz., the plaintiff 2 to 3. In view of the specific admission of the P.W.1 in the cross examination that his father Ramasamy does not have bad habits coupled with recital in Ex.B2 regarding the legal necessity for a alienation for the joint family property by the kartha. So also the evidence of D.W.2, elder brother of Ramasamy, the trial court has correctly come to the conclusion that the sale has been effected by the first defendant,Ramasamy in favour of the appellant/second defendant under Ex.B2 is true, valid and supported by valuable consideration and further the suit has been instituted after 8 years of the sale deed also cause serious doubts as to the relief sought in the suit. Besides, the first defendant remained exparte without filing written statement. In the decision reported in 1976(2)MLJ Page 134...
A) When a minor institutes an action challenging the alienations made by his father or his ancestors on the ground that the debts were avyavaharika in nature and that there was no legal necessity which would compel the manager, though he may be a father, to sell or alienate otherwise the properties it is for him to establish at least reasonably, that the circumstances and the position of the family were such that no occasion could have arisen for such a borrowing and that there was no necessity, at all, to alienate the properties at any particular or material point of time.
B) The mere ipse dixit of the plaintiff, as soon as he becomes a major basing his information on hearsay and gathering some witnesses who would parrot-like repeat what he wants them to say would not improve the position. Antecedent debt has a special signification. Further in case like this, it would be a practical impossibility for the alience who is brought to the threshold of the Court on the facts adverted by the minor challenging coparcener to prove that the consideration which passed under one or other alienations made by the father-manager or the manager was rightfully or properly utilised by their vendors. It would be unreasonable to expect such meticulous proof of appropriation and treatment of such consideration many years after the date of such alienation.
C) As a passing refer to the decided cases making another general observation in cases like the one under consideration. It is the common feature in such cases that the father who is responsible for the litigation, who, though is living with the minor, keeps himself safely outside the witness-box. He can easily be presumed to be a person who is encouraging this litigation as a sutradari. It would not be unreasonable to presume that the hand of the father is always there in this litigation and he just brings into the witness box his brother's sons, minor children and others so as to gamble in litigation, by challenging his own alienations through them.
D) In Fagannath v.Shri Nath (AIR 1934 Page 55) an old father alienated certain family properties and the sale deed was attested by the eldest members of that family. In a suit brought by the minors challenging such alienations, the Privy Council said that the attestors who were the eldest members of the family and who were intimately connected with it were in a better position than anyone else to say whether the money was applied for the necessary purposes of the family. They had allowed their children to figure as plaintiffs and got themselves impleaded as defendants. The suit was a collusive suit and the conduct of the elders afforded ample corroboration of the other evidence that the same was effected for necessary family purposes.
E) A Division Bench of the Oudh High Court in Sant Baksh V.Lachhman Prasad AIR 1946 Page 92 observed that:
"Where the father executes a sale-deed by which he alienates joint family property to satisfy his previous liabilities and his son, on attaining majority, files a suit to set aside the sale deed on the ground that it was executed without any legal necessity impleading the father as defendant and the father does not come forward to give evidence whether all or any of the debts borrowed by him were not for legal necessity, it must be held that the suit is a collusive suit filed at the instance of the father and the failure of the father to come into the witness box and to state the real facts raises a presumption against the plaintiff that the money must have been needed for legal necessity".
F) Finally, the Supreme Court in Dhha Amrit Lal Nagji v.Doshi Fayantilal Fethalal AIR 1960 SC 964 stated that:
"Where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the dons who challenge the allegation have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted.
G) Again the Supreme Court in Radha Krishnadas V.Kaluram AIR 1967 SC 574 stated that:
"Where an alienation, by way of sale of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the alienee is required to establish his 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. The reason is that the alience 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".
22.It is, therefore, fairly clear that the challenges made by a minor in the matter of alienation or borrowings made by their elders including their father, cannot lightly be accepted by Courts unless the facts in each of those cases do satisfy the norms laid down by the various decisions cited above.
23.In the light of the above, it is for consideration, in the instant case, whether the minors have proved that the debts challenged by them or the alienations questioned were in connection with antecedent debts which were immoral and whether the purchasers had notice of the inherent avyavaharika nature of such debts.
24. The trial Court after taking into consideration of the oral evidence of the P.W.1, regarding the first defendant, Ramasamy does not possess any bad habits and in view of specific recital under Ex.B2 sale deed that the sale has been effected for the benefit of the family and legal necessity and also non-examination of the Mariammal, the second wife, who is the legal guardian of the plaintiffs 2 and 3 to countenance the stand of the second defendant regarding the nature of the sale, has rightly come to the conclusion that the sale effected by the first defendant, Ramasamy in favour of the second defendant under Ex.B2, sale deed is for the family necessity and the legal necessity and the same is valid. A contra finding recorded by the lower Appellate Court on the basis of wrong approach of Lower Appellate Court by wrongly causing burden of prove on the purchaser is not correct and hence the contra finding recorded by the lower Appellate Court is hereby stands vacated and the above said finding as that of the trial Court, for the reasons discussed in the preceding paragraphs are hereby restored.
25. It is also seen from the records that when the appellant was in the witness box as a D.W.1, he was contradicted with discrepancy in the survey No. mentioned in the Ex.B2, sale deed for which, he had categorically stated that the clear and definite boundaries mentioned in the sale deed are clear and the property in dispute is easily identifiable and the boundaries mentioned in the Ex.B2, sale deed is as that of the boundaries mentioned in the scheduled property. It remains to be stated that, P.W.2 Adaikalam is none other than the elder brother of the first defendant, Ramamsamy. He had categorically stated that his younger brother, (the first defendant) does not possess any bad habits and they have effected various sale deeds . They have alienated the joint family property under various sale deeds due to the family necessity and for the welfare of the family and one such sale deed being Ex.b2, the subject matter of the suit and further stated that the suit property and lands covered under Ex.B2 are one and the same.
26. It is settled law that mere a discrepancy in a Survey No. that too in sub-division will not affect in the title. When the other parameters namely boundaries and extent are being correct and proper. Accordingly, this Court holds that the suit property is clearly identified by the oral and documentary evidence supported by the evidence of the D.W.1 and D.W.2 and the trial Court has correctly appreciated the both oral and documentary evidence and come to the conclusion that a mere discrepancy in the sub-division in the survey No does not affect the sale and further the property in dispute in clearly identified by the measurement along with boundaries thereon duly stands corroborated by the parol evidence by D.W.2 and in view of the specific recital in the Ex.B2 that the sale is in order to meet the family expenses and for legal necessity of the family members and the first defendant Ramasamy has effected the sale only for legal necessity and the sale is supported by the valuable consideration, is clearly based upon the legal evidence available on record and on the lines of the decision reported in 1976(2)MLJ134 and accordingly, the finding of the trial Court in this regard is found to be correct. While the finding rendered by the lower Appellate Court is erroneous and based on surmise and accordingly the Judgment and decree of lower Appellate Court is hereby set aside and the Judgment and decree of the trial Court is restored. The appeal is to be allowed and reversing the Judgment and decree of the lower Appellate Court in A.S.No.157 of 1997,dated 31.03.1999 is hereby set aside. The Judgment and decree in O.S.No.328 of 1995, dated 31.07.1997 is restored.
27. In the result, this Second Appeal is allowed with costs and decree and Judgment in A.S.No.157 of 1997, dated 31.03.1999 by the Principal District Judge, Pudukottai is set aside and Judgment and Decree dated.31.07.1997 made in O.S.No.328 of 1995 is restored. Consequently, the suit in O.S.No.328 of 1995 on the file of the Principal District Munsif Court, Pudukottai shall stands dismissed.
To:
1.The Principal District Judge, Pudukottai.
2.The Principal District Munsif, Pudukottai. .