P.S. Narayana, J.
1. Sappa Srinivas, as minor represented by next friend Randhi Ayyanna, the maternal grandfather, instituted the suit for partition as indigent person i.e., O.P. No. 59/92 which was numbered as O.S. No. 78/94 on the file of Senior Civil Judge, Tadepallegudem. The said minor was declared as major and next friend was discharged as per order in IA No. 593/ 2000 dated 19/7/2000. On the respective pleadings of the parties, issues were settled and PW-1 - next friend, PW-2 -Buddala Ramanna, PW-3 - the plaintiff, were examined and Exs.A-1 to A-9 were marked. Likewise, DW-1 to DW-10 were examined and Exs.B-1 to B-10 were marked. The Court of first instance granted a preliminary decree for partition holding that the alienations are not binding on the shares of the plaintiff and the 3rd defendant on 11-9-2000. Aggrieved by the said judgment and decree the alienees/Defendants 4 to 9 preferred A.S. No. 111/2001 on the file of I Additional District Judge, West Godavari, Eluru and the appellate Court dismissed the said appeal by Judgment and decree dated 16-7-2002. Aggrieved by the same, the present second appeal is filed.
2. No doubt, the report of the Commissioner in I.A. No. 1144/2002 in I.A. No. 478/2001 in O.S. No.78/94 on the file of Senior Civil Judge also was brought to the notice of this Court relating to the objection to stop execution of warrant and also a finding relating to removal of stones. This aspect may not be much relevant for the present purpose.
3. Elaborate submissions were made by Sri Prabhakar, representing the appellants, Sri Durga Prasad Rao, representing the respondent/plaintiff and Sri Sivaram Prasad, representing the 2nd respondent/3rd defendant, Sri Rama Krishna, 4th respondent/2nd defendant in the suit.
Submissions of Sri Prabhakar, Counsel representing the appellants :
4. The learned Counsel commenced his submissions pointing out the substantial questions of law. The Counsel had contended that though specific plea of collusion was raised, no issue was framed in this regard. The learned Counsel also had pointed out the recitals in the documents and also had raised a specific ground stating that setting aside alienations was not prayed for though it was pleaded that these alienations are not binding on the respective parties. The learned Counsel also in detail had explained the pedigree and the relationship between the parties. The learned Counsel also would submit that there is no specific pleading relating to ancestral nucleus and subsequent acquisitions out of such nucleus. The learned Counsel also had pointed out that Defendants 1 and 2 were set ex parte which would be suggestive of the collusion. The Counsel also would maintain that the property acquired in the name of a member of the joint family cannot automatically be taken as family property liable for partition. The Counsel also would point out that the burden is on the part of the plaintiff in this regard and the same was not discharged. The learned Counsel also in detail explained the oral and documentary evidence available on record. The Counsel specifically pointed out that the plea of "addicted to vices" which is the main ground of attack on alienations is a vague plea devoid of any particulars and hence on such a vague plea, finding that alienations are not binding on the plaintiff and the 3rd defendant, cannot be recorded and hence such findings are unsustainable. The learned Counsel also had explained that absolutely there is no evidence to show that these debts had been contracted for any immoral purposes and the Counsel also would contend that even on the strength of the doctrine of pious obligation, the sons are bound to discharge such debts and hence in this view of the matter, definitely the alienations are supported by legal necessity. The Counsel also would maintain that even otherwise these properties acquired by the 1st defendant cannot be said to be the properties acquired by the karta of the joint family inasmuch as the adoptive father of the karta was alive and in this view of the matter, these properties are to be treated as self-acquired properties of the 1st defendant. The learned Counsel had also explained the ancestral nucleus by the date of acquisition of plaint schedule properties i.e., Items 1 to 5, as hereunder :
Ac.0-82 cents--sold on 30-9-1982 under Ex.A-5 by 1st defendant and his father to Simhadri
Ac.0-95 cents--sold on 20-8-1987 under Ex.A-8 by Defendants 1 to 9
Ac.2-00 cents--sold on 8-7-1981 under Ex.A-9 by the 1st defendant, his father and his mother 2nd defendant to T. Vara Lakshmi Acs.3-77 cents
Item No. 2 measuring 0-981/2 cents was purchased under Ex.B-6 on 21-7-1980.
Items 3 and 4 measuring Ac.0-961/2 cents was purchased under Ex.B-7 on 10-12-1980.
So by the time items 2, 3 and 4 were purchased the joint family had got a total extent of Acs.3-77 cents covered by Exs.A-5, A-8 and A-9.
Item No. 1 measuring Ac. 1-40 cents was purchased in the name of 1st defendant under Ex.B-5 dated 2-12-1981
Item No. 5 measuring Ac. 1-40 cents was purchased under a registered sale deed dated 2-12-1981 in the name of 1st defendant's father.
Within four months after sale of an extent of Acs.2-00 under Ex.A-9, with its sale proceeds, Items 1 and 5 of plaint 'A' Schedule were purchased.
Even assuming that the sale proceeds of the Acs.2-00 of land covered by Ex.A-9 were not utilized for purchasing Item No. 1, the joint family had Acs.3-72 cents as shown below:
Ex.A-5 - Ac.0-82 cents
Ex.A-8 - Ac.0-95 cents
Ex.B-6 - Ac.0-981/2 cents
Ex.B-7 - Ac.0-961/2 cents
The Counsel would maintain that these calculations at the best would show that there was some property, but definitely this would not establish that this nucleus was in the form of income from which the subsequent acquisitions could have been made. It was pointed out that mere is no presumption that a property being joint property on account of existence of joint Hindu family and the party claiming a particular property as joint family property having been acquired out of the joint family income would have to establish that there was nucleus in the form of income from which the subsequent acquisition was made. The learned Counsel also while elaborating his submissions in detail had explained the powers of father, kartha, manager of joint family, concept of joint family, concept of co-parcenary property, concept of legal necessity in relation to the benefit of the family and the concept of bona fide enquiries to be made by the alienees and the limitations thereon imposed by law. The Counsel also pointed out to the contents of the notices and the stand taken be respective parties at the earliest point of time. The evidence of DW-7, DW-8 and DW-9 had been pointed out and it was contended that in the light of the same, the alienations were for discharging antecedent debts and for legal necessity and hence in the light of the facts and circumstances, having made alienations the family members of the plaintiff are fighting this collusive litigation with a view to defeat the alienations made in favour of these bona fide purchasers. Explanation was given in detail to every item and also the recitals in the sale deeds wherein specifically it was mentioned, except in one sale deed, that the alienations were made for the purpose of discharging debts. The learned Counsel also would maintain" that apart from these recitals, the evidence is available on record to show that these alienations are supported by legal necessity and the same was for the benefit of the family only inasmuch as it was for discharge of the debts. The learned Counsel also pointed out the lack of particulars in the pleading relating to each item and submissions were made at length in this regard. It was further contended that the 3rd defendant as such never questioned the alienations and hence he cannot be granted any relief in a suit filed by the plaintiff. The Counsel also would maintain that such sales are no doubt voidable, but definitely not void. The learned Counsel further contended that on appreciation of the clear recitals in the documents well supported by the oral evidence as a whole, it is definitely clear that at least for a substantial portion of the consideration, there was necessity and in view of the same these purchasers as bona fide purchasers purchased the properties under registered sale deeds which cannot be defeated by the son especially on the strength of such pleading which is definitely devoid of material particulars expected to be in the pleadings in a suit of this nature. The learned Counsel also submitted that the recitals in a document may have to be considered as a whole even if these are taken to be admissions and the approach of the Courts below in taking into consideration only a portion of the recitals and leaving the other recitals would be totally unjust and improper. The learned Counsel in all fairness submitted that there is no much controversy in relation to the relationship of the parties, but however commented that the maintenance proceedings are only collusive and afterthought with a view to create a ground or lay a foundation for the purpose of attacking the alienations made by the father. The learned Counsel also had placed strong reliance on the decisions in Srinivas Krishnarao Kango v. Narayan Devji Kango, , M. Girimallappa v. R.
(died) v. G. Venkata Krishna Rao, (DB), B. Narsa Reddy v. Ramulu, 1999(3) An.WR 241, P. Chandra Sekhar Reddy v. Vaka Rachaiah, (DB), Larsen and Turbo Limited v. State of Gujarat, , Gurmukh Ram Madan v. Bhagwan Das Madan, , Hari Chand Alias Harish Chandra v. Daulat Ram,
, Rosammal Issetheenammal Fernandez v. Joosa Mariyan Fernandez, , Amrit Lal v. Jayanti Lat,
Fakirappa v. Venkatesh, , B. Subba Reddy v. B. Nagi Reddy, 1973 (1) An.WR 14, Manibhai v. Hemraj, (1990) SCC 68, Gangadharan v. Janardhana Mallan, , Hafazat Hussain v. Abdul Majeed, , Yadarao Dajiba Shrawane (died) by L.Rs v. Nanilal Harakchand Shab (dead) and Ors., 2002 (2) DT SC 311, D.S. Lakshmaiah v. L. Balasubramanyam, 2003 (6) Supreme 540, S.M. Jakati v. S.M. Borkar, , Sita Ram v. Radha Bai,
, Sri Krishna Das v. Nathu Ram, AIR 1927 PC 37,
Bansilal v. Shivlal, and Diyya Dip Singh v. Ram
Submissions of Sri Durga Prasad Rao, Counsel for 1st respondent/plaintiff :
5. The learned Counsel for the 1st respondent/plaintiff would contend that concurrent findings were recorded by both the Courts below and this Court should be slow in disturbing such findings. The learned Counsel also explained Order 6, Rule 1 of the Code of Civil Procedure and contended that evidentiary details need not be pleaded but such details are to be proved by letting in evidence. The plaint and the written statement in detail had been dealt with. The Counsel also had explained all the items and the recitals showing the ancestral nature, the extents of properties originally owned by the family as nucleus and the acquisitions thereof. The learned Counsel also had explained the ancestral nucleus by the date of acquisition of plaint schedule properties as hereunder:
Item No. Extent R.S. No. Exhibit under which it was sold, date a Sale consideration To whom and by whomSold How it was aquired by the joint family Recitals in it regarding purpose of sale amount of debt shown __________________________________________________________________
(1) (2) (3) (4) (5) (6)
Eastern side Ac.1.40 inAc.2-80 R.S No.44/3
Ex.B-3. dated 22-9-1990Rs 40.600/-
To Sriniwasarao (CS) by Defendants 1 &2
It was purchased in the name of D1 from Kaligntla China Subha rao under Ex.B-5 Sale Deed dated 2-12-1981
For discharging the debts of family and with the remaining safe consideration to make such arrangements which would fetch good income to our family which are Profitable and benafitial to our famly; Rs.13,500/- shown as debt under Ex.84 pranote dated 29-9-1988 Item No. 2
0-93 1/2 in 0.99R S No44/1
Ex. B-1 dated 21-9-1990 Rs 28.600/-
To Subhaveni (D4) by DI alone
Ramuci and Vendates ware Rao9 under Ex B6 Sale Deed Date 21-7- 1980
As it is not fetching proper income to me being in low level and being frencuntly affected due to inundation and with an intention of making other arrangements which are profiable and Beneficial to our family ltem No.3
0-84112 in Ac 3-42 R.S. No.40/1
Ex B-2 dated18-1-1992 Rs28,800;
To Rajarao (D8) by D1 alone
These two itemswere purchased in the name of D1 from vishnu Bhollaw venkata Ramanarma
Due to pressure of debts to discharge the said debts and to the remaining sale considieration to make other arrangements which would fetch good income to me.
Item No.4 Ac.D-12 in A.c.2-59
under Ex.B7 sale deed dated 10.12.1980
No debts are shown
Ac.1-40 in Ac.2-80 R.S. No.443
Ex 88 dated 22-9-1990 Rs.40,000/-
To Subhe Rao (D6)and Peddmma (07) by Defendants I & Z
It was purchased in the name of 01's iather under a registerd sale dead dated 2.12.1981 from kaligotla china subba Rao
For discharging the debts of our family and with the reaming sale consideration to make such such arrangements which would fetch good income to our family which are protitable and beneficial to our family.Debts shown Rs. 6,800/-. Under Ex. B9 pronote dated 19.3.1989 Rs. 6,300/- under Ex. B10 pronote dated 23-12-1939 Item No.6 0-05 cents Tied House Not said to anybody _ _ Item No.7 0-04 cents
Vacant site and Thatched house there
Item No 8
O-13 Cents R.S. No.22317ARs.22,000/-
Original of Ex.A8 dated 20-8-1987
To Gulinalli Appenna (D9)by D1 alone
This property being our accestral property has been in my possesson and environment
For purpose of my faimly expenses and discharge of sundry debts Item No 9 0-35 cents R.S. No.223176
Item No 10 0-47 cents R.S.No.223111
The Counsel would maintain that sufficiency of ancestral nucleus for acquisition of other joint family properties had been definitely established by the very calculations referred to supra. It was also pointed out that legal necessity was definitely not established. The Counsel pointed out to the vague recitals in relation to the discharge of sundry debts. The learned Counsel had well explained that at any rate this cannot be said to be the pressing necessity of the family so as to make alienations of almost all the properties which have no nexus at all absolutely to the amounts proved to be due by the family by examining the witnesses. The Counsel also pointed out that the 9th defendant had not filed his sale deed even, since ancestral nature of the property had been specifically mentioned therein. The learned Counsel also submitted that the stand taken by the appellants that the 1st defendant is a businessman had been specifically negatived since no evidence was let in this regard. In the documents, sale deeds, and also in the promissory notes, the occupation of the 1st defendant was shown as agriculturist only. The learned Counsel while elaborating his submissions pointed out that even in view of Order 6, Rules 1 and 2 of the Code of Civil Procedure, there is implied prohibition on divulging evidence in the pleadings. The learned Counsel further submitted that sons are not parties to the sale transactions and hence in a partition action where alienations are attacked on the ground of want of legal necessity, specific prayer to set-aside documents need not be prayed for. It was further contended that the plaint may have to be read as a whole. Failure to examine karta or manager also would be fatal in a suit of this nature. The learned Counsel also would maintain that the recitals in the documents which are questioned may have to be taken only as self-serving recitals and such recitals cannot be conclusive at any rate. It was also pointed out that the creditors and the debts were not mentioned in the written statement though the documents refer to the same. The learned Counsel also had contended that the debts shown would be to a tune of Rs. 28,600/- and the alienations were to a tune of Rs. 1,30,000/- and thus the nexus between the two and the pressure on the family to make alienations definitely had not been established. The learned Counsel also had pointed out to certain subsequent events relating to the removal of stones when the Commissioner visited. The standard or prudence of karta, father or manager of a joint family had been explained in detail. The learned Counsel also had pointed out that the specific alienations not binding on the sharers had been prayed for even in the relief. The learned Counsel also had made certain submissions relating to Order 41, Rule 33 of the Code of Civil Procedure and had contended that the mesne profits should have been awarded from the date of the suit instead of from the date of judgment The learned Counsel also had placed strong reliance on Surendra Kumar v. Phoolchand, , K. Sambasiva Rao v. K. Nagabhushanam, (DB), Hemraj v. Nathu, AIR 1935 Bombay 295 (FB),
Kumaraswami v. Rajamanikkam, (DB), Dudh Nath v. Sat Narain Ram, (FB), Medikenduri v. Venkatayya,
, D.J. Prasad v. D.V. Subbaiah,
(DB), B. Ranga Rao v. G. Venkata Krishna Rao, ,
Basavayya v. Guravayya (FB), (FB), Hari Sankar v. Anath Nath, AIR 1949 Federal Court 106, Panna Lal v. State of Bombay, , Dhangir v. Madan Mohan, ,
Girijanandini v. Bijendra Narain, , Nagayya v.
Chenganna, AIR 1957 AP 264 (DB), Rani v. Santa Bala Debnath, , Unni v. Kunchi Amma, (1890) 14 Madras 27, Srinath v. Jagannath, ILR 1929 Allahabad 391 (Vol.42), Bijoy Gopal Mukerji v. Srimati Krishna Mashishi Debi, 34 Indian Appeals 87, Ramaswami v. Rangachariar, AIR 1940 Madras 113, S.R.M AR.S.S.P. Sathappa Chettiar, 1954 MLJ 400, Geeshpati Gurukul v. Subrahmanyam, 1956 An.WR 553, Sankaranarayana v. Kandasamia, AIR 1956 Madras 670 (FB), Commissioner of Income Tax, Calcutta v. Paharpur Cooling Towers Private Limited, , M. Subbarayudu v. State, (FB),
Gopabandhu Das v. Maheswar Mundian, 1998 (3) CCC 333 (Orissa), Prasad v. Govindaswamy Mudaliar, , V.V.V. Ramaraju v. Korada Malleswara Rao, , and the decision referred in
Srinivas Krishna Rao Kango v. Narayan Devji Kango and M. Girimallappa v. R. Yellappagouda (supra).
Submissions made by Sri Siva Ram Prasad, Counsel for 2nd respondent/3rd defendant :
6. The Counsel representing the 2nd respondent/3rd defendant in the suit, had taken this Court through the written statement filed by him and had submitted that the 3rd defendant had taken a specific stand attacking the alienations to the effect that they are not binding on him and there was no legal necessity for the family. The learned Counsel also had submitted that ample oral evidence is available in this regard since the mother of the 3rd defendant also had been examined and apart from this aspect of the matter since it being a suit for partition when the alienations made by the father are not binding on the plaintiff, equally such alienations would not be binding on the 3rd defendant also being the son and the mere fact that he had figured as 3rd defendant in the suit would not alter the situation in any way since, in a partition action, a sharer though impleaded as a defendant, would be in the position of the plaintiff and would be entitled to the relief. Hence, the Counsel would maintain that there is no illegality or perversity in the findings recorded by both the Courts below in this regard and hence the said findings are liable to be confirmed in the Second Appeal.
Submissions by Sri Ramakrishna, Counsel representing 4th respondent/2nd defendant:
7. The learned Counsel representing the adoptive mother would contend that inasmuch as she is not a party to several of the documents, those alienations are not binding on her and though she had not challenged these findings, she can definitely challenge the said findings and this Court can mould the relief accordingly by granting shares at least in the rest of the items.
8. Heard the Counsel on record and perused the oral and documentary evidence, the findings recorded by the Court of first instance and the findings recorded by the appellate Court.
9. The substantial questions of law pointed out in the Second Appeal are as hereunder:
1. Whether the non-framing of a specific issue relating to collusion though specific plea was taken in this regard would not be fatal in the facts and circumstances of the case ?
2. Whether the appellate Court is justified in not considering this aspect of collusion though specifically raised in the grounds of appeal ?
3. Whether the Courts can render findings contrary to the recitals in the sale deeds in view of Section 92 of the Indian Evidence Act, 1872 ?
4. Whether the plaintiffs and Defendants 2 and 3, in the absence of setting aside the sale deeds executed by the 1st defendant, can maintain the action for partition and separate possession ?
5. Whether, in the absence of positive proof on the part of the plaintiff, can it be assumed that every sale by karta of joint family is to be set-aside or ignored in the absence of proof of immorality or proof of illegal purposes ?
6. Whether the property acquired in the name of individual of joint family during the lifetime of karta can be treated as property of Hindu Undivided Family liable for partition ?
10. For the purpose of convenience, the parties are referred to as arrayed in the original suit.
11. As already referred to supra, the plaintiff instituted the suit for partition of plaint A schedule property into three equal shares and for allotment of 1/3rd share as an indigent person O.P. No. 59/92 which was numbered as O.S. No. 78/94 on the file of Senior Civil Judge, Tadepallegudem. It was pleaded in the plaint that the 1st defendant is the father, 2nd defendant is the paternal grandmother and 3rd defendant is the stepbrother of the plaintiff. The plaint schedule properties are all ancestral properties to the plaintiff, the Defendants 1 to 3 and one Sappa Tata, father of the 1st defendant. The mother of the plaintiff was given in marriage to the 1st defendant about 12 years back. After the birth of the plaintiff, the mother of the plaintiff died about 9 years back. Thereupon the 1st defendant married the sister the plaintiff's mother and gave birth to the 3rd defendant. The 1st defendant was ill-treating the plaintiff and the 3rd defendant and the natural mother of the 3rd defendant since some time. Defendants 1, 2, 3 and the plaintiff constitute Hindu joint family and enjoying the properties as co-parceners. Since two years, the 1st defendant was habituated to vices and began ill-treating the plaintiff, 3rd defendant and the mother of the 3rd defendant. An extent of Ac.0-981/2 cents of land in R.S. Nos. 44/2 and 44/1 in Saripalli Village was also purchased by plaintiff from Nirdyogi Simhachalam and Chanumuri Ramarao under a registered sale deed dated 30-4-1986 and the 1st defendant filed a petition before the District Judge, West Godavari, Eluru seeking permission to sell away the land with false allegations. The plaintiff had been consenting the same and therefore the 1st defendant bore grudge against the plaintiff and about six months back, the 1st defendant threatened the plaintiff and 3rd defendant and his mother and asked them to get out from the house. Thereupon the plaintiff, 3rd defendant and his mother took shelter under the maternal grandfather of the plaintiff Randhi Ayyanna, The father of the 1st defendant and husband of the 2nd defendant died intestate about 7 years back. Since then the plaintiff and Defendants 1 to 3 constitute Hindu joint family and enjoying the same as coparceners. The plaintiff filed another suit for recovery of possession etc., for Ac.0-981/2 cents of land in forma paupuris. The plaintiff got 1/4th undivided share in the schedule properties. It was further pleaded that Defendants 4 to 7 are obtaining some documents from the 1st defendant collusively and the plaintiff issued notice to the 1st defendant and Defendants 2 to 7 calling upon the 1st defendant and Defendants 2 and 3 for partition and separate possession of his 1/4th share etc., and informing the Defendants 4 to 7 that such alienations are not valid under law and binding upon the plaintiff. The Defendants 1 and 2 received the said notices and Defendants 5 and 6 refused to receive the notice. The Defendants 1, 4 to 7 sent reply notices with false contentions. The Defendants 2 and 3 received the said notices and failed to send any reply. It is false to state that the properties are self-acquired properties of the 1st defendant and that the 1st defendant leased out an extent of Ac.0-981/2 cents of Saripalli Village to the 4th defendant and that the 4th defendant and her husband Raja Rao, 8th defendant, purchased an extent of Ac.0-981/2 cents of land in R.S.No. 44/1 and Ac.0-96 cents in R.S. Nos. 40/1 and 39/1 and the 1st defendant executed a sale deed in their favour and that the Defendants 1 and 2 executed a sale deed in favour of 5th defendant to an extent of Ac.1-40 cents covered by R.S. No. 44/3. The sale deeds are brought into existence and not valid under law and do not bind the plaintiff. It is false to state that Defendants 4 to 8 are bona fide purchasers. After registered notice was issued, the plaintiff came to learn that 9th defendant obtained sale deed from the 1st defendant for Items 8 to 10 of plaint A schedule property. The said alienation is not valid under law and do not affect the rights of the plaintiff. The plaintiff do not possess any properties and has no means to pay the Court fee. The plaintiff also filed a separate suit for possession of property situated in R.S. Nos. 44/2 and 44 to an extent of Ac.0-98 1/2 cents at Saripalli Village. There is no adverse interest between the minor plaintiff and the 3rd defendant. Hence, the maternal grandfather Randhi Ayyanna filed this suit being next friend. There is no adverse interest between the plaintiff and the maternal grandfather Randhi Ayyanna.
12. It is needless to say that inasmuch as the plaintiff was declared major, the next friend, maternal grandfather, Randhi Ayyanna was discharged as per orders in I.A. No. 593/2000 dated 19-7-2000.
13. The 3rd defendant filed written statement with the following averments. It was pleaded that the 3rd defendant is the stepbrother of the plaintiff. The plaint schedule properties are all ancestral properties to the plaintiff and the 3rd defendant. The alienations made by the 1st defendant as alleged in the plaint are all void and not binding on the 3rd defendant. There was no legal necessity to alienate the properties in favour of other defendants. It was also pleaded that the Defendants 4 to 7 are obtaining some documents from the 1st defendant collusively. The 3rd defendant is entitled for partition in the suit property and also entitled to 1/3rd share in the schedule property. Therefore, the 3rd defendant prayed to pass a decree in his favour and also for partition of the plaint schedule property into three equal shares and also to allot one such share and for separate possession of that share to the 3rd defendant and also for mesne profits.
14. It was pleaded in the written statement of the of defendants 4 to 8 as hereunder:
15. It was pleaded in the written statement of Defendants 4 to 8 as follows. The material allegations of the plaint are not true and correct. The maternal grandfather is not entitled to act as a guardian to minor plaintiff without the permission of the District Court when the natural parents of the plaintiff are alive. It is false to state that the plaint schedule property is the ancestral property of the plaintiff. The 1st defendant and his father once possessed only Ac.1-40 cents of land. During the lifetime of the 1st defendant's father, he enjoyed the income over that property which is not even sufficient for the maintenance of the family. The 1st defendant was not paid any income from that property. The 1st defendant did paddy commission business and also started arc welding shop and earned profits. The 1st defendant always treated his income over his business as his separate property and he purchased Acs.3-35 cents of land which is shown as Items 2 to 5 of the plaint schedule property. Item No. 1 of the plaint schedule alone is the ancestral property and Items 2 to 5 are the self-acquired properties of the 1st defendant. While purchasing properties the 1st defendant obtained the sale deeds in his favour only except for Ac.0-981/2 cents of land covered by R.S. Nos. 44/1 and 44/2 which was taken in the name of the plaintiff. The 1st defendant alone was in possession and enjoyment of the entire property purchased by him. Later, the 1st defendant switched into prawn business in large scale and sustained heavy loss and became indebted. Due to pressure given by the creditors the 1st defendant offered sale of the Items 1 to 5 of the plaint schedule properties. The 8th defendant originally intended to purchase the property of Ac.0-981/2 cents of land for which the sale deed was taken in favour of the plaintiff and for which he was a lessee and the bargain was also settled. The maternal grandfather of the plaintiff then intervened and raised objection for the grant of permission for sale of that property. As such the 1st defendant could not get the permission from the District Court for the sale of the same. The 1st defendant offered his other properties for sale. Defendant No. 7 purchased Item No. 1 of the plaint schedule property for Rs. 40,600/- under a registered sale deed dated 22-9-1990 which was registered as document No. 1829. The Defendants 1 and 2 received the consideration and executed the sale deed. Defendant No. 4 purchased Item No. 2 of the plaint schedule property for Rs. 28,600/- under a registered sale deed dated 21-9-1990 and it was executed by the 1st defendant alone. Defendant No. 8 purchased Items 3 and 4 of the plaint schedule properties for Rs. 28,800/- under registered sale deed dated 18-1-1992. Defendants 6 and 7 purchased Item No. 5 of the plaint schedule property under registered sale deed dated 22-9-1992. The boundaries of Item No. 5 are not correct. The sale deeds executed by Defendants 1 and 2 in favour of Defendant Nos. 4 to 8 are fully supported by consideration and transactions are valid and the sales are for legal necessity and for their family benefit. The plaintiff, even though said to have any right in the plaint schedule property, is bound by the sales effected by Defendants 1 and 2 under the theory of obligation. Defendants 1 and 2 have discharged the debts with the amount received under the above said sales. The plaintiff, his father and grandfather constitute the members of Hindu joint family and enjoyed Item No. 1 of the schedule property alone as Joint Hindu family property. It is false to state that the 1st defendant had addicted to vices and started ill-treating the plaintiff and his mother and the plaintiff purchased Ac.0-981/2 cents in R.S. Nos. 44/1 and 44/2 for himself. The plaintiff had no capacity to purchase the land. It is false to state that the 1st defendant bore grudge against the plaintiff or was opposing granting of permission for sale of the land standing in his name. Defendants 1 to 3 and the plaintiff are living together and the plaintiff is under the custody of the 1st defendant. The plaintiff has no right or interest in Items 2 to 5 of the plaint schedule property and he is not entitled to any share in those properties. The plaintiff is bound by the lease of Item No. 1 of the plaint schedule property. The suit filed by the plaintiff without asking to set aside the sale deeds is not maintainable under law. The Defendants 4 to 8 sent reply to the notice of the plaintiff with true and correct particulars. Defendant No. 8 is not the lessee of Ac.0.981/2 cents which is the subject-matter of O.S. No. 264/94 on the file of District Munsif Court. Therefore, the Defendants 4 to 8 pray to dismiss the suit and award compensatory costs to them.
16. The 9th defendant filed a written statement denying all the allegations in the plaint. It was further pleaded by the 9th defendant that he purchased Items 8 to 10 of the plaint schedule property for Rs. 22,000/- under a registered sale deed dated 20-8-1987 and the 1st defendant received the consideration. The plaintiff is not entitled to question the same and even though said to have any right in the plaint schedule property, he is bound by the sale effected by the 1st defendant under the theory of pious obligation. It is not correct that the 1st defendant ill-treated the plaintiff and his mother. The plaintiff has no right or interest in Items 8 to 10 of the plaint schedule property. The plaintiff is not entitled to any share in those properties. It was pleaded that they have purchased those items under sale deed for valuable consideration. The suit filed by the plaintiff without asking to set aside the sale deed is not maintainable under law. It was also further pleaded that it is not true to say that the plaintiff sent a registered notice to the 9th defendant. Therefore, the 9th defendant prays to dismiss the suit and award compensatory costs to the 9th defendant.
17. On the strength of the respective pleadings of the parties, the following issues were settled by the Court of first instance :
1. Whether the plaintiff is properly represented in the suit ?
2. Whether Items 1 to 5 of the plaint schedule are the ancestral properties of the plaintiff?
3. Whether the Defendants 4 to 8 are the bona fide purchasers for Items 1 to 5 for valuable consideration ?
4. Whether the plaintiff is entitled to any share in the plaint schedule properties, if so to what proportions and for what extent ?
18. The suit was decreed granting preliminary decree of 1/4th share to the plaintiff and 1/4th to the 3rd defendant holding that the alienations are not binding on the shares of plaintiff and the 3rd defendant and also the plaintiff and the 3rd defendant are entitled to future mesne profits on their respective shares from the date of judgment till they are put in possession. The Court of first instance had recorded findings in detail appreciating the evidence of PW-1 to PW-3, DW-1 to DW-10 and Exs.A-1 to A-9 and also Exs.B-1 to B-10. Aggrieved by the same, A.S.No. 111/2001 was filed on the file of I Additional District Judge, Eluru and at para-16, the following Points for consideration were framed by the appellate Court:
1. Whether the plaintiffs family has got ancestral property ?
2. Whether Item Nos. 2 to 5 and 8 to 10 are the self-acquired properties of 1st defendant ?
3. Whether 1st defendant has got independent source of income ?
4. Whether 1st defendant sold the properties in favour of Defendants 4 to 9 for the benefit of the family and for legal necessity and the same is binding on the plaintiff and 3rd defendant ?
5. Whether 1st defendant is addicted to bad vices ?
6. Whether Defendants 4 to 9 are the bona fide purchasers for valuable consideration and the same are valid sales ?
7. To what relief ?
After framing the Points for consideration, the appellate Court had discussed the Points at paras 17 to 31 and ultimately dismissed the Appeal, without costs. Aggrieved by the same, the alienees had preferred the present Second Appeal.
19. Elaborate submissions were made on the nature of pleading expected to be in a matter of this nature where alienations made by the father are attacked by the son in relation to Hindu joint family. Serious contentions were advanced relating to the plea "addicted to vices" which is just a general allegation, but particulars thereof had not been specifically pleaded. Since this is a crucial aspect, the Counsel for the appellants would maintain, the plaintiff is bound to fail.
20. It is no doubt true that there cannot be variance between pleadings and proof and hence normally pleadings may have to contain particulars so as to put the other side on notice of the stand taken by the plaintiff which can be either admitted or denied. Absence of plea is something very different from vague plea or a plea devoid of particulars. In the decision referred in D.M. Deshpande v. Janardhan Kashinath Kadam (supra), while dealing with the aspect of vague plea, the Apex Court held:
"It has been submitted by the appellants that the entire proceeding started by the respondents in execution claiming tenancy is a collusive proceeding between the former trustee and the first respondent, who have joined hands to prevent the present trustees from obtaining possession of the trust property. It is also submitted that no material particulars relating to this alleged tenancy of the first respondent have been submitted anywhere in the application (Exhibit 8) before the Executing Court. In the absence of any material particulars relating to this alleged claim of tenancy, no issue could have been framed or referred to the Tahsildar. A bare statement claiming tenancy is not enough for the purpose of raising an issue relating to the alleged tenancy of the first respondent. The appellants have relied upon Order 6, Rule 2 of the Civil Procedure Code which requires that every pleading shall contain a statement in a concise form of material facts on which the party pleading relies for his claims or defence. In the absence of any concise statement of material facts the mere raising of a plea of tenancy is not enough for the purpose of raising an issue on the question.
Learned Counsel for the appellants has relied upon three decisions in support of his contention that a vague plea does not justify an issue being framed. In this connection, a reference was made to Ram Sarup Gupta v. Bishun Narain Inter College , where the Court has held that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of any pleading, evidence if any produced by the parties cannot be considered. The object and purpose of a pleading is to enable the adversary party to know the case of the opponent. In order to have a fair trial, it is imperative that the parties should state the essential material facts so that the other party may not be taken by surprise. The Court has, however, cautioned against a pedantic approach to the problem and has directed that the Court must ascertain the substance of the pleading and not the form, in order to determine the case. The respondents have emphasized latter observations. In the present case, however, no material in support of the plea of tenancy has been set up anywhere in any form. In the case of Nilesh Construction Co. v. Gangubai, , the Court observed that before a reference to the Mamlatdar for deciding the issue of tenancy under the Bombay Tenancy and Agricultural Lands Act, 1948 is made, the alleged tenant must disclose in his pleadings, details about the tenancy and the exact nature of the right which is claimed by him. An issue of tenancy cannot be raised on a vague plea.
Similarly in an earlier case of Pandu Dhondi Yerudkar v. Ananda Krishna Patil, (1974) 76 Bom.L.R. 368, the High Court has observed that when in spite of particulars being asked for a vague plea is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created. However, in that case since an issue regarding tenancy had already been raised, it was obligatory for the Court to refer this issue to the authorities under the Tenancy Act. The Court, therefore, held that the issue had to be so determined."
In Ranjit Construction Co., Ltd. v. National Highways Authority of India, , while dealing with the aspect of pleadings in civil proceedings and the writ petitions it was held that in the pleadings i.e., plaint and written statement, facts are to be pleaded and not the evidence. The substantial rights of the parties, if otherwise established cannot be defeated on the ground of vagueness of plea and the substance of the pleading may have to be looked into and all the allegations in the plaint as a whole are to be considered. It is needless to say that all the evidentiary details need not be pleaded. Too a liberal or strict construction of pleadings cannot be adopted and equally not too a liberal approach too. If both parties know the respective stands and the evidence had been let in that direction, inasmuch as the parties to the litigation have knowledge about the respective stands taken, vagueness of the plea cannot be made a ground of attack especially in the absence of prejudice caused to the opposite parties. The alienees in this case pretty well know the stand of the plaintiff from the exchange of notices and also the evidence let in this regard. Hence, in my considered opinion, the plaintiff cannot be non-suited on this ground since on such a ground, the substantive rights of the parties cannot be defeated if otherwise the party is entitled to such legal rights. Reliance also was placed on the decision referred in Rosammal Issetheenammal Fernandez v. Joosa Mariyan Fernandez (supra) as to how the pleadings are to be appreciated in case of denial. In the decision referred in Larsen and Turbo Limited v. State of Gujarat, (supra), it was observed:
"It is not enough to allege that a particular Rule or any provision has not been complied. It is a requirement of good pleading to give details i.e., particulars as to why it is alleged that there is non-compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particular. No issue can be raised on a plea foundation of which, is lacking. Even where Rule Nisi is issued, it is not always for the Department to justify its action when the Court finds that a plea has been advanced without any substance, though ordinarily Department may have to place its full cards before the Court. Thus where the notifications issued under Sections 4 and 6 for acquisition of land for a company were challenged on ground that neither the consent of the State Government was obtained nor the company seemed to have executed agreement as provided in Section 37 read with Section 41 of the Act before issuance of the notification under Section 4 and declaration under Section 6 of the Act, and in the whole body of petition before the High Court it was never stated that provisions of Rule 3 had been contravened and so also no particulars about the non-compliance of Rule 4 were stated, the finding that it was not possible on the basis of the material on record to hold that there was compliance with the Rules 3 and 4 was clearly unsustainable."
In the light of the view expressed by me supra, this ground of attack of lack of material particulars in the pleading relating to the nature of vices in detail may not alter the situation in any way in the light of the oral and documentary evidence adduced by the parties in detail in this regard.
21. The next question which had been argued in some elaboration is the aspect of collusion, The stand taken by the appellants/alienees is that the suit itself is a collusive suit and hence the plaintiff is not entitled to a decree in such a collusive suit. It is no doubt true that no specific issue was framed in this regard. It may be true that a ground had been raised in the Appeal, but the fact remains that the Court of first instance while deciding Issue No. 1 and also the appellate Court had recorded clear findings on this aspect. The plea of collusion in a suit of this nature is only incidental to the main ground of attack relating to the validity of the alienations or otherwise. The non-framing of specific issue in my considered opinion had not caused any prejudice to the parties, especially in the light of the findings recorded at para-9 by the Court of first instance and at para-18 by the appellate Court. It is no doubt true that in relation to the evidence of DW-1 and also Exs.A-2 to A-4, certain contentions were advanced that these proceedings had been thought of by the stepmother of the plaintiff who was examined as DW-1 and the 1st defendant, only with a view to make a ground of attach of the alienations made by the 1st defendant, and hence from this fact, collusion may have to be inferred. The mother of the 3rd defendant, the stepmother of the plaintiff, was examined as DW-1 and DW-1 filed M.C. No. 2/92 against the 1st defendant for maintenance and the Court had granted maintenance. The 1st defendant filed a Crl. R.P. No. 22/96 and the same was dismissed, marked as Ex.A-2. DW-1 also filed a petition for enhancement of maintenance and when the Court had granted enhancement, the 1st defendant preferred Crl. R.P. No. 28/96 on the file of I Additional Sessions Judge, W.G. District and the said Revision was allowed and the certified copy was marked as Ex.A-3. The 1st defendant also filed O.P. No. 25/92 for restitution of conjugal rights as against DW-1 and the said petition was dismissed and the certified copy of the said order in O.P. No. 25/92 was marked as Ex.A-4. Though these documents and the evidence of DW-1 also had been attacked on the ground of collusion, as a finding of fact, both the Courts had recorded that there is no collusion and it being predominantly a question of fact, concurrent findings recorded by both the Courts below need not be disturbed. Hence, the said findings are hereby confirmed.
22. The next question which had been elaborately argued is the validity and the binding nature of the alienations made by the 1st defendant/father. The genealogy of the plaintiff and the 3rd defendant is plain and simple and there is no dispute or controversy. But for the purpose of better appreciation, it is shown as hereunder :
Sappa Tata - Sappa Dalamma (2nd defendant)
Sappa Venkat Rao
First wife Second wife
(plantiff) (3rd defendant)
There is no serious controversy in relation to the adoption of Sappa Venkata Rao, the 1st defendant. Origin of the custom of adoption is lost in antiquity. The evolution of datta adoption can be traced even from the texts of Manu and Vasista. The ancient law of adoption had been crystallized in the provisions of the Hindu Adoptions and Maintenance Act, 1956 and the Effects of adoption in Section 12 of the said Act. The object of adoption is both religious and secular as well (See : Bal Gangadhar Tilak v. Srinivas, AIR 1915 PC 7 and Amarendra Mansingh v. Sanatansingh, AIR 1933 PC 155). Adoption is not in dispute and though devolution of property was held to be only secondary in Chandrasekhara v. Kulandaivelu, , spiritual
consideration being predominant, the fact remains that the 1st defendant has to be treated on par with aurasa son for all practical purposes inclusive of power of alienation. Since this question is not raised as a serious question of controversy, this Court need not dwell any further on this question. In Hindu Law by S.V. Gupte, Volume 1, Article 9, it was stated :
(1) There is no presumption that a joint family possesses joint or any properly.
(2) Once it is admitted or proved that a joint family possesses joint property, the presumption is that all property held by one or more members of the family is joint family property provided that such joint property is sufficient to raise the presumption.
(3) There is a presumption that property acquired by two or more members of a joint family by joint labour or exertions is joint family property, although such property is acquired without the aid of joint family property.
(4) There is no presumption that a business carried on by a member of a joint family either by himself or in partnership with a stranger is a joint family business.
(5) Once it is admitted or proved that the property in dispute was originally self-acquired or separate, the presumption is that it continued separate.
(6) Once it is admitted or proved that a partition has taken place, the presumption is that all property of the joint family has ceased to be joint family property.
(7) There is no presumption that any property held by a member of a joint family is joint family property.
Property can be proved to be of joint family by adducing evidence to establish that such property is ancestral or acquired with the aid of such property. In Indranarayan v. Roop Narayan, , it was held that in case of father and sons, presumption of jointness is stronger. When once it is admitted or proved that joint family possesses joint property, presumption is that all the properties held by the members of the joint family would be joint family properties provided the joint family properties are sufficient to raise such presumption. Before discussing the other aspects, it may be appropriate at this stage to have a look at certain details of the items in the plaint schedule, the particulars of which are furnished as hereunder :
1. West Godavari District, Saripalli Village, R.S.No. 44/3, Ac.2-80 cents in that Eastern side Ac. 1-40 cents within the following boundaries:
East: Panta bodi
South: Land of Gullipalli Sanyasi and others
West: Land of Nagireddy Appa Rao
North: Land of Chanumuri Subba Rao
2. West Godavari District, Saripalli Village, R.S. No. 44/1, Ac.0-99 cents in that Ac.0-981/2 cents within the following boundaries:
East: Panta bodi
South : Land of Nidyogi Simhachalam and others
West: Upparapati Poramboke North : Land of Nethala Yellamma
3. West Godavari District, Saripalli Village, R.S. No. 40/1, Acs.3-47 cents in that Acs.0-841/2 cents within the following boundaries:
East: Land of Nagireddy Appa Rao and others
South: -do-West: Panta bodi
North : Land of Sappa Dalamma
4. West Godavari District, Saripalli Village, R.S. No. 39/1, Acs.2-59 cents in that Ac.0-12 cents within the following boundaries:
East : Sappa Dalamma
South : Land of Nirdyogi Mutyalu
West: Panta bodi
North: Murgu bodi
5. West Godavari District, Saripalli Village, R.S. No. 44/3, Ac.2-00 cents in that Ac. 1-40 cents within the following boundaries : (boundaries amended as per order in I.A. No. 416/2000 dated 28-6-2000)
East: Panta bodi (boundaries amended as per order in I.A.No. 416/2000 dated 28-6-2000)
South : Land sold to Chanumuri Srinivas (amended as per order in I.A. No. 416/2000 dated 28-6-2000)
West: Gorli Mkutyalamma -do-North : Land of Sappa Srinivas and porambok to some extent (amended as per orders in I.A. No. 416/2000 dated 28-6-2000).
6. House property : West Godavari District, Saripalli Village, Velampeta, an extent of Ac.0-05 cents and a house therein bearing Door No. 3-33 tiled house within the following boundaries:
East: Cattle shed of Gullipalli Achanna
South : House and site of Gullipalli Ramulu
West: Raja veedhi
North : Panchayat tank bund
7. -do- -do- -do- Ac.0-04 cents vacant site and a thatched house therein within the following boundaries:
East: Panchayat street South : House of Gorli Joginaidu West: Site of Boddu Subba Rao North: Panchayat Murugubodi
8. -do- -do- -do- R.S.No. 223/7A Full Extent Ac.0-13 cents
9. -do- -do- -do- R.S. No. 228/7B Full Extent Ac.0-35 cents
10. -do- -do- -do- R.S.No. 223/11 Full Extent Ac.0-47 cents
23. The case of the plaintiff is that all the plaint schedule properties are the ancestral properties and that Items 1 to 4 were acquired by the 1st defendant/father from out of the joint family nucleus and the 1st defendant has no other separate source of income other than this joint family agricultural income. The stand taken by the alienees is that Items 1 to 4 are the self-acquired properties of the 1st defendant and Item 5 alone is the ancestral property. No doubt, there is some confusion relating to Item 1 and Item 5. But however, findings clarifying the same had been recorded by the Court of first instance at para-12. Be that as it may, the specific stand taken by the alienees is that Items 8 to 10 are the self-acquired properties of the 1st defendant, and the plaintiff and the 3rd defendant have no right over Items 1 to 4 and also Items 8 to 10 since their further contention is that the 1st defendant sold away Items 1 to 5 and 8 to 10 for discharge of the debts of the joint family and hence it was for the legal necessity of the family and thus the sale deeds are binding on the plaintiff and the 3rd defendant as well. They have taken a specific stand that they are bona fide purchasers for valuable consideration and hence their sales are to be protected. Though the alienees had taken a stand that the 1st defendant was doing paddy commission business and arc welding business and was earning profits and had purchased Items 1 to 4, no independent evidence was adduced in this regard and hence both the Courts had arrived at a conclusion that there was sufficient ancestral joint family nucleus and hence the subsequent acquisitions in the light of the facts and circumstances, are to be taken as joint family properties only which are liable for partition in ordinary course if otherwise the plaintiff and the 3rd defendant are entitled to establish that there was no legal necessity for making such alienations on the part of the 1st defendant and the 1st defendant had not acted as a prudent karta of family while making such alienations and that there was no such pressing necessity or demand or pressure from the side of the creditors which had compelled the 1st defendant/father to alienate virtually all the properties of the joint family to the detriment of the then minor children. Both the Counsel had advanced elaborate and lengthy arguments and had placed reliance on several decisions to substantiate their respective contentions. In view of the details already furnished relating to the items supra, the particulars relating to these items need not be repeated again. In the decision referred in B. Subba Reddy v. B. Nagi Reddy (supra), this Court held:
"As stated earlier, the plaint A schedule property was purchased on 4th July, 1958 under Exhibits B-3, B-4 and B-5 for a total consideration of Rs. 8,000/-. It is well settled that there is no presumption that any property purchased by the manager of a joint Hindu family is a joint family property. Where in a suit for partition, a party claims any property as joint family property, the burden of proving that it is so is on the party asserting it. The plaintiffs must prove that the family was possessed of some property with the income of which the property could have been acquired, or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. If it is established that the family possessed some property which from its nature and value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. But no such, presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. An important element for consideration is the income which the nucleus yielded. The existence of some nucleus, is not the sole criterion. The nucleus should yield sufficient surplus income from which the subsequent acquisitions could be made. In this case the joint family was holding 2-641/2 cents of wet land. The income from this land could have been just sufficient for the maintenance of the first defendant and his family. It is not established that this yielded a surplus income which could have been utilized for the purpose of purchase of the plaint A schedule property. In this context, the case of the plaintiffs as stated in the plaint is significant. It is not stated that the property was purchased out of the surplus income from the joint family property. On the other hand, the case is that the first defendant contracted debts and he discharged the debts by the sale of ancestral property. Therefore, this is a case where the property is claimed to be joint family property, not by reason of the fact that it was purchased out of the income from a joint family property, but because the acquisition is traceable to the sale of joint family property. It is therefore, necessary to see whether this specific case has been made out.
It is well settled that a property acquired by causing detriment to the ancestral property would be joint family property, if, for instance, ancestral property is sold and with the proceeds thereof property acquired, the said property would be joint family property. But what would be the position if the property is acquired partly with the aid of the joint family property and partly from the manager's own funds ? It is contended on behalf of the respondent that in such a case as there is detriment to the joint family property the entire property acquired would become the joint family property. In support of this contention reliance is placed on Mangal Singh v. Hakesh . In that case it was found that
both the ancestral property of the family and the self-acquired properties were utilized for acquiring the properties in dispute. It was held that whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by himself as self-acquisition. It was observed that the extent of his contribution or that of the family fund is immaterial. If any help is taken from the family property it is enough to make the self-acquired property, the property of the joint family.
Thus, it is clear from these texts that the property can be self-acquired property if it is acquired without detriment to the ancestral property or without using the ancestral property. If there is detriment to the property or it was used, the property acquired till take the character of joint family property. Whether there has been a detriment would depend on the facts of the case. If the detriment is so insignificant as not to amount to a real detriment, then the property acquired will not be joint family property.
The decision in Venkatramayya v. Tandavakrishna Rao, (1962) 2 An.WR 361, is to the effect that if the property is acquired by detriment to the joint family property, the property so acquired is the joint family property. This Court followed the decision of the Madras High Court in Sivaramakrishnan v. Kaveri Ammal, . In
those two cases however, it was not considered whether if a part of the amount by which the property was purchased came out of the joint family funds and the other part out of the self-acquisitions, the entire property would be the joint family property."
In the decision referred in P. Chandra Sekhar Reddy (supra), it was held at para 17 as hereunder :
"An attempt was also made to show that the sale under Ex.B-11 was made to discharge the 'takkavi' loan and manure loan contracted by the second defendant. D.Ws.7 and 8 are examined and Exs.B-29 and B-40 were marked. Exs.B-37 to B-40 are the receipts evidencing payment of some amount towards loan by the second defendant. They are dated 2-1-1974 i.e., long after the sale under Ex.B-11. That apart, they are signed by the second defendant himself. Ex.B-29 relates to a loan borrowed by the second defendant on 31-7-1952. The loan under Ex.B-31 was closed in the year 1957 itself. The other loans, in the name of Gangireddy, the grandfather of the plaintiff were also closed by 1957. Although the loans were taken long back in 1952 and 1962 it is sought to be established that they were discharged by making payment on 2-4-1974 without any pressure from anybody. Therefore, the Trial Court was right in observing that there was no pressing demand on the joint family for discharge of these loans by selling the property. Therefore, in view of these circumstances, it is clear that there was no pressure on the joint family to sell away the property and discharge the said loans. In the above circumstances, we entirely agree with the finding of the Trial Court, as confirmed by the learned Single Judge that there was neither legal necessity nor was any proof of discharge of antecedent debts under the alienations covered by Exs.B-10 and B-11.
Hence, these transactions are not binding on the plaintiff and as such, the sales are not binding on the 1/4th share of the plaintiff in the joint family properties. For the same reasons we hold that the sales are not binding on Gangireddy also. If such is the case, the sales would be valid in respect of the 1/4th share of the second defendant alone. However, the matter does not end there. Gangireddy, the grandfather of the plaintiff admittedly died in the year 1966. Therefore, what is the effect of the death of Gangireddy on these alienations is the next question that falls for consideration."
Reliance also was placed on the decision referred in Fakirappa v. Venkatesh (supra), wherein the Karnataka High Court held as hereunder:
"The suit was instituted for a declaration that the alienation of the suit property made by father of the plaintiffs in favour of defendant was not binding on them. The case of the plaintiffs was that the suit land belonged to the joint family consisting of their father and themselves, and that their father alienated it in favour of defendant-1 under a sale deed and that the said transaction was not supported by legal necessity or family benefit and therefore the alienation was not binding on them.
..... The material on record shows that defendant had proved that the plaintiffs* father had contracted two mortgage debts and had executed the sale deed in favour of Defendant No. 1 for discharging the two debts. Since these two debts had not been characterized as "avyavaharika" debts, the alienation made for discharging them must be held to be binding on the plaintiffs irrespective of the fact that there was no other legal necessity or family benefit supporting the sale deed."
Reliance was placed on Banga Chandra v. Jagat Kishore, AIR 1916 PC 110. In the decision referred in Sunder Das v. Gajananrao (supra) the Apex Court held :
"Once it is held that the suit house was an ancestral property in the hands of the plaintiffs' father, Defendant No. 6, the plaintiffs could naturally have right by birth in the suit house. However, the moot question is whether the alienation of the suit house by the impugned sale deed by the plaintiffs' father, Defendant No. 6, to the contesting defendants was binding on the plaintiffs. So far as this question is concerned, it must be kept in view that plaintiffs' father was the 'karta' of the joint Hindu family. The evidence shows that at the relevant time he was working as Upper Division Clerk in the Civil Court at Chhatarpur. His monthly income was Rs. 150/- in 1958-59 when the sale deed was executed as seen from his deposition as DW-1. He has clearly recited in the impugned sale deed in favour of the contesting defendants that he was selling the suit house for Rs. 1,800/- on account of family necessity. He revealed in his deposition before the Court that he had a family of seven persons to be maintained out of his income of Rs. 50/- per month as he had got his wife, three sons, namely, the present plaintiffs and two young daughters. It is also revealed from his evidence that he was staying at Chhatarpur as he was serving as Upper Division Clerk in the Chhatarpur Court. The suit house was situated at Village Datia. According to Defendant No. 6 he occasionally came to Datia to look after the house. No attempt as made in his evidence to get out of the clear recitals in the sale deed that he had entered into the transaction for family necessity. It is also pertinent to note that out of the three plaintiffs, plaintiff No. 1 was major at the time of the sale deed. He has conspicuously remained absent from the witness box and avoided inconvenient cross-examination which he might have faced. In support of the plaintiffs only Plaintiff No. 3 PW-1 Govind Rao who was admittedly aged 8 years at the time of the sale deed has been examined. He naturally could not have any personal knowledge about what transpired in 1959, when his father who was serving in a Civil Court as Upper Division Clerk thought it fit to sell the ancestral house in village Datia to the defendants and whether the recital made by him in the sale deed that the transaction was being executed for family necessity was right or not. Nor Defendant No. 6, vendor father of the plaintiffs, had even whispered about the necessity for inserting the recital in the sale deed that he was executing the same for family necessity. It has to be kept in view that Defendant No. 6 being the father of the plaintiffs and 'karta' of the joint Hindu family was legally entitled to alienate the suit house and also the interest of the minor plaintiffs in the said house even for his own requirements unless it was shown that the transaction was tainted by any immoral or illegal purpose. That is not the case of the plaintiffs. Nor have they suggested that their father was addicted to any immoral conduct. Their only case is that their father had no right to alienate their undivided interest in the suit house. We must keep in view the fact that Defendant No. 6, father of the plaintiffs, was a worldly person who was presumed to know the ways of the world as he was attached to the Civil Court as Upper Division Clerk at the relevant time. His evidence shows that up to 1954, he had worked in the Civil Court as a Lower Division Clerk. Then he was promoted by the High Court to the post of Upper Division Clerk in the year 1954, and he was transferred to Panna and from Panna he was transferred to Chhatarpur. He also deposed that he used to visit Datia in connection with supervision of the suit house. Therefore, Defendant No. 6, father of the plaintiffs apart from being the 'karta' of the joint Hindu family was well versed in the ways of the world and was not a novice or a layman. With his open eyes he disposed of the suit house which appeared to be almost a ruin for Rs. 1,800/-. It is easy to visualize that when defendant No. 6, the vendor, was staying with his family at Chhatarpur and when the ancestral house at Datia Village was in a ruinous condition and which would almost be a burden to them he thought it fit in his wisdom to dispose it of for Rs. 1,800/- in favour of the defendant and made an express recital in the sale deed that it was for family necessity that he was disposing it of. As a Hindu father and 'karta' of the family he had every right to do so and in the process could have legally disposed of the interest of his minor sons in the said property also for the benefit of the family and necessity of the family. The plaintiffs have not been able to lead any cogent evidence to rebut the clear recitals found in the sale deed to that effect."
In the decision referred in Amrit Lal v. Jayanti Lal (supra) it was held by the Apex Court at para 12 as hereunder:
"That question arose before the Privy Council in Suraj Bunsi Koer v. Sheo Persad Singh, 6 Ind. App. 88 (PC). In that case an ex parte decree for money had been obtained against a Hindu governed by Mitakshara on a mortgage bond, the property mortgaged being ancestral immovable estate. Under the said decree the mortgaged property was attached and the decree-holder sought to bring the said property to sale. Prior to the execution sale, however, the judgment debtor died and his infant sons and co-heirs filed a petition of objections; but they were referred to a regular suit. In the suit which they filed they challenged the binding character of the debt and claimed appropriate relief against the execution creditor and the purchasers. The Privy Council held that as between the infant sons of the judgment debtor and the execution creditor neither the sons nor the ancestral immovable properties in their hands were liable for the father's debt; and as regards the purchasers, it was held that, since they had purchased after objections had been filed by the plaintiffs, they must be taken to have had notice actual or constructive thereof and therefore to have purchased with the knowledge of the plaintiffs' claim and subject to the result of the suit to which they had been referred. The subordinate Judge decreed the claim, set aside the mortgage bond, the decree thereon and the execution sale thereof. By this decision the mortgage, the decree and the execution sale in regard to the alienor's share had also been set aside. The High Court, however, reversed that judgment and dismissed the suit. The Privy Council partly allowed the appeal preferred by the plaintiffs, and held that the shares of the plaintiffs were not bound either by the mortgage deed, the decree or the execution sale. Thus it is clear that in that case the Privy Council held that the antecedent debt was for immoral purposes and that the auction purchaser had notice of it. But in dealing with the question of law raised before it the Privy Council had occasion to examine the relevant provisions of Hindu Law and the decisions bearing on them. Amongst the decisions considered by the Privy Council was the case of Kantoo Lal, 1 Ind. App. 321 (PC), and observed that:
"This case then, which is a decision of this Tribunal, is undoubtedly an authority for these propositions: 1st, that where joint ancestral property has passed out of a joint family, either under a conveyance executed by a 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, his sons, by reason of their duty to pay their father's debts, cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they were so contracted; and secondly, that the purchasers at an execution sale, being strangers to the suit, if they have no notice that the debts were so contracted, are not bound to make inquiry beyond what appears on the face of the proceedings."
The first proposition which has been laid down in this judgment as deduced from Kantoo Lal's case, 1 Ind. App. 321 (PC), is clear and unambiguous. 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 sons have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so contracted. With respect, it is open to argument whether the two propositions inevitably arise from the earlier decision of the Privy Council in Kantoo Lal's case, 1 Ind App. 321 (PC); but since 1879 when this proposition was thus enunciated it has apparently been accepted by all the Courts in India as the correct statement of Hindu Law on the point.
Reliance also was placed on the decision referred in Jamunabai v. Sharadabai, (supra). In the decision referred in Hemraj v. Nathu (supra), a Division Bench of this Court held:
"It is pertinent to mention that acquisition of the properties in the name of either 'kartha' or other member of joint family does not indicate the nature of the property and does not raise any presumption that they belong to the said member of joint family exclusively. It is a settled law that though joint family all the subsequent acquisitions irrespective of the fact as to whether they stand in the name of either 'kartha' or other member of joint family, even female members, are deemed to be joint family properties, unless the same is rebutted by clinching evidence by the person setting-up the said properties as his self-acquisitions. But, in the instant case, the defendant has utterly failed to discharge the said burden of disproving mat the later acquisitions have not been acquired with the aid of ancestral nucleus. In view of the same, all the plaint A schedule properties are treated as joint family properties of the defendant and his son - the 2nd plaintiff.
In the decision referred in Surendra Kumar v. Phoolchand (supra), it was held at para 6 as hereunder by the Apex Court :
"..... .It is no doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. Both the Courts below have scrutinized the evidence bearing in mind the aforesaid legal position and have rightly come to the conclusion that the property in question is the joint family property."
In the decision referred in D.S. Lakshmaiah v. L. Balasubramanyam, (supra) the Apex Court at paras 17 and 18 held:
"In view of the aforesaid discussion, the respondents having failed to discharge the initial burden of establishing that there was any nucleus in the form of any income whatsoever from Item No. 2 property and no other nucleus was claimed, the burden remained on the respondents to establish that Item No. 1 property was joint family property. In this view, the fact that the first appellant has not led any evidence to establish his separate income is of no consequence insofar as the claim of the respondents is concerned. Under these circumstances, for failure to lead evidence, the respondents' claim of Item No. 1 to be joint family property would fail as rightly held by the first appellate Court.
The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
In the decision referred in Sri Krishn Das v. Nathu Ram, (supra), the Privy Council while dealing with the alienation by father of joint family property and a suit to set aside such alienation, held :
"The statement that, "where a father has sold ancestral property for the discharge of his debts, if the application of the bulk of the proceeds is accounted for the fact that a small part is not accounted for will not invalidate the sale," although in itself a correct statement of the law, is not a complete statement of the law; a sale will not necessarily be invalidated wherever the part of the consideration not accounted for cannot be described as small.
The true question which falls to be answered in such cases is whether the sale itself was one which was justified by legal necessity. This is the point of view from which the matter should be approached.
Where the sale has been held to be justified, but there is no evidence as to the application of a portion of the consideration, a presumption arises that it has been expended for proper purposes and for the benefit of the family.
Where the purchaser acts in good faith and after due enquiry, and is able to show that the sale itself was justified by legal necessity, he is under no obligation to enquire into the application of any surplus and is, therefore, not bound to make repayment of such surplus to the members of the family challenging the sale."
In the decision referred in Bansilal v. Shivlal (supra), while dealing with the aspect of immoral or illegal debts under Hindu Law, it was held that in a suit brought by a son to set aside alienations made by a Hindu father, in order to succeed in the contention that the alienation was for immoral purposes, it is necessary for the plaintiffs to establish that there was a connection between the loans and the immorality of the father. Reliance was placed by the Apex Court on Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189, Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, , Baikuntha Nath Paramanik (dead) by his LRs. and heirs v. Shashi Bhusan Pramanik (dead), by his L.Rs, , Surendra Kumar v. Phoolchand (dead) through LRs. and Anr., , Mallesappa Bandeppa Desi v. Desai Mallappa alias Mallesappa and Anr., , Achuthan Nair v. Chinnammu Amma, , Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshmamma, , K.V.
Narayanan v. K.V. Ranganadhan, , and the decisions referred in Srinivas Krishnarao Kango v. Narayan Devji Kango and M. Girimallappa v. R. Yellappagouda (supra). Reliance also was placed for the proof of joint ownership in a suit for partition on the decision referred Gurmukh Ram Madan v. Bhagwan Das Madan, (supra). In the decision referred in Srinivas Krishnarao Kango v. Narayan Devji Kango, (supra), the Apex Court held :
"Proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
In the decision referred in M. Girimallappa v. Y. Yellappagouda, (supra), it was held by the Apex Court as hereunder :
"Where manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption was rebutted, it must prevail."
In the decision referred in B. Narsa Reddy v. Ramulu, (supra) it was held by this Court as hereunder :
"No prudent man sells the entire valuable lands to celebrate the marriage when there are other sons. On this ground the alienations made cannot be held to be for legal necessity. Even assuming that the evidence of DWs.3 to 6 with respect of loans are correct, there is no evidence to show that there was any threat by any creditor on the 1st defendant to pay the loans. There is also no evidence to show that he was pressurized for repayment of the loans due to which he was compelled to sell the lands for legal necessity. In the cross-examination DW-1 admitted that after the payment of full consideration they did not give any amount subsequently to the outstanding debt of the 1st defendant. This clearly shows that their claim that they paid the debts of the 1st defendant is baseless. When the alienation is questioned by the minor sons, the burden of proving the same is on the alienee to show that there was legal necessity or benefit of the family and the alienation was for the discharge of antecedent debts justifying the alienation. In the present case the alienee has failed to discharge that burden. The conduct of the 1st defendant in taking the plea that he was addicted to vices is anything but appreciable. It is not open to him to take shelter that he was addicted to vices and hence the alienations made were improper. Insofar as the share of the 1st defendant is concerned, Defendants 2 and 3 are entitled to work out their claim against the share of the 1st defendant for the consideration paid by them. The Trial Court has rightly decreed the suit in part. The Trial Court was right in holding that the Plaintiffs 1 to 3 are entitled to get 1/4th share each in the lands covered by Exs.B-1 and B-2. They are also entitled to get 1/4th share in the house property which is included in plaint 'A' schedule. Since the plaintiffs failed to prove that the family also possessed 'B' schedule properties, the Trial Court has rightly disallowed the claim insofar as plaint 'B' schedule properties is concerned."
In the decision referred in B. Ranga Rao (died) v. G. Venkata Krishna Rao, (supra), the Division Bench of this Court while dealing with a similar question at para-10 held :
"The Manager of Joint Hindu family governed by Mitakshara Law is called its 'Karta'. The manager has got power over the income and expenditure of the joint family. He may alienate the joint family properties for legal necessity or for the benefit of the estate. He has got power to contract debts for maintenance of the members of the joint Hindu family, for marriage expenses or coparceners and for defending the head or any other member of the family in suits or other proceedings. The karta of a joint Hindu family cannot dispose of the joint family property or any portion thereof, except for legal necessity or for the benefit of the estate. In the said cases only, the alienations bind the other coparceners of the joint family. It is settled law that where an alienation is made by the karta of a joint Hindu family for a legal necessity or for the benefit of the estate, the consent of minor coparcener is not required."
The Division Bench further held at para 29 as hereunder:
"The karta of a Hindu joint family has got the power to alienate the joint family property only for legal necessity or for the benefit of the family. Where the joint family is sold for legal necessity or for the benefit of the family, the degree of prudence which is required for the Kartha of the joint family, who is not the sole owner of the property is greater than that of the owner, and like a trustee. When the sale is only for legal necessity, the burden on the alienee is to show that the sale itself was justified by legal necessity and he is under no obligation to enquire into application of sale amount in detail by the Kartha as alienee has no control over hint Where the sale of joint family property is for the benefit of the family, the alienee has to take reasonable care to find out whether the sale in fact, was for the benefit of the family on the date of transaction, which includes to find out that the sale was for the purchase of other property of better investment; that the sale consideration was actually utilized for the purpose of purchasing other lands for the benefits of the family."
In Koutarapu Venkata Chenchayya v. Koutarapu Ramalingam, AIR 1957 A.P. 744, this Court, following the ratio laid down by the Privy Council in Pearey Lal v. Nanak Chand, AIR 1948 PC 108, held :
"Where there was no ancestral nucleus with the help of which the properties could have been acquired the onus is heavy on the plaintiff in a suit for partition to establish how the family came to own considerable joint family properties."
In the decision referred in B. Ranga Rao v. G. Venkata Krishna Rao, (supra), the Apex Court while dealing with the modes of effecting partition, placing reliance on the decision in Palani Amal v. Muthu Venkatacharla Moniagar, AIR 1925 PC 49, held:
"In a Hindu undivided family governed by the Mitakshara Law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the coparceners are defined when there is partition. Partition consists in defining the shares of the coparceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete. The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to Arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property. But in each case the conduct must evidence unequivocally intention to sever the joint family status. Merely because one member of a family severs his relation, there is no presumption that there is severence between the other members: the question whether there is severence between the other members is one of fact to be determined on a review of all the attendant circumstances. Where there is severence between different branches of a joint family, severence between the members of the branches inter se may not in absence of expression of an unequivocal intention be inferred.
It is from the intention to sever followed by conduct which seeks to effectuate that intention that partition results; mere specification of shares without intention to sever does not result in partition."
In the decision referred in Gopabandhu Das. v. Maheswar Mundian, (supra), the Orissa High Court while dealing with the recitals in a document and the aspect of legal necessity held:
"The Manager of a joint Hindu family has power to alienate for value the joint family property so as to bind the interest both of minor and adult coparceners in the property, provided the alienation is made for legal necessity or benefit of the estate. In the case of a Hindu father, however, he has some special power to alienate coparcenery property which no other coparcener has. It is settled law that where the alienation of joint family property is not approved by the sons, the burden is -on the alienee to establish that the same was supported by legal necessity or benefit of the family or that he made reasonable enquiry about existence of such necessity (See Kumaraswami Mudaliar v. Rajamanikkam Udayar, and Radhakrishna Das v. Kaluram,
. In the case in hand as appears from the recitals in the sale deeds (Exts.3 and 4), the necessities for which the suit lands were alienated were for purchase of seeds and for repayment of co-operative loan. In order to prove such necessities, no evidence worth the name was adduced by the plaintiff to discharge the burden. It needs no mention that the recitals about legal necessity in a deed of sale are not sufficient to discharge the burden that lies upon the alienee."
In the decision referred in Hemraj v. Nathu, (supra), a Full Bench of Bombay High Court while dealing with sale of immovable property by mother as guardian of a minor, held:
"The question whether a transaction is for the benefit of an estate or not involves the consideration of something more than merely whether the purchase price paid is a good price; it involves the further question of what is to be done with the purchase money. To sell a piece of land at a very good price would not be beneficial if the purchase money was to be invested in an insolvent business. A manager of a minor under Hindu Law is not entitled to sell merely for the purpose of enhancing the value of the property of the minor, or for increasing the minor's income, but it cannot be said that no transaction can be for the benefit of the minor which is not of a character to protect or preserve property of the minor.
Where there was nothing to justify the sale except the fact that the price obtained was greater than that which would normally be obtained interest market and there was no satisfactory evidence as to the manner in which the purchase-money was to be dealt with, the sale of that character and for that purpose was not justified."
In the decision referred in Kumaraswami v. Rajamanikkam, (supra), a Special Bench of Kerala High Court while dealing with alienation of property by father which had been impugned by his sons, held that the burden of proof that it was supported by legal necessity is on the buyer. It was also further held:
"Where alienation of the family property is impugned, the burden is on the buyer to establish that sale was supported by legal necessity or benefit of the family, or that the alienee had made bona fide and reasonable enquiries which made him believe that the necessity existed even though no such necessity did in fact exist."
In the decision referred in Dudh Nath v. Sat Narayan Ram (supra), a Full Bench of Allahabad High Court held:
"A Hindu father or a manager of joint Hindu family is expected to act prudently. However great the necessity may be, if to the joint family property is sacrificed for inadequate consideration, it would be a highly imprudent transaction and it would be a case where, though for necessity, the father or the guardian has not acted for the benefit of the estate or the members of the joint Hindu family. The father or the manager is not the sole owner of the property. In fact until the partition takes place even his share does not stand demarcated. The ownership vests in all the coparceners taken together as a unit. The father and the manager, therefore, only represent the coparceners. Consequently the coparceners stand bound by the act of the father or the manager of the family only to the extent the act is prudent or for the benefit of the coparceners or the estate."
In the decision referred in V.V.V. Ramaraju v. Korada Malleswara Rao (supra), the powers of the father to make alienation including sons share for legal necessity or for the benefit of the estate or for the discharge of antecedent debts not tainted by illegality or immorality had been dealt with. Reliance also was placed on the decision referred in Divya Dip Singh v. Ram Bachanmishra (supra) of the Apex Court wherein the right of the natural guardian to deal with the minors property and the effect of appointment of guardian under Order 32 Rule 3 of the Code of Civil Procedure in a suit relating to minors property had been dealt with. In the decision referred in Prasad v. Govindaswamy Mudaliar (supra), while dealing with antecedent debts of father and pious duty of sons to discharge such debts under Hindu Law, the Apex Court held :
"A natural guardian of a Hindu minor has power in the management of his estate to mortgage or sell any part thereof in case of necessity or for the benefit of the estate. If the alienee does not prove any legal necessity or that he does not make reasonable enquiries, the sale is invalid. But the father in a joint Hindu family may sell or mortgage the joint family property including the sons' interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided (a) the debt was antecedent to the alienation and (b) it was not incurred for an immoral purpose. The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The privilege of alienating the whole of the joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great grandfather qua the son or grandson only. No other person has any such privilege. There is, however, another condition which must be satisfied before the son could be held liable i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. In the instant case on the finding arrived at that the consideration for the sale deed in question was thoroughly inadequate, the sale could not be upheld."
While dealing with burden of proof in relation to avyavaharika debt the Apex Court in the decision referred in Sita Ram v. Radha Bai, (supra) held:
"A Hindu son governed by the Mitakshara Law is liable to pay the debts of his father even if they are not incurred for purposes of legal necessity or for benefit to the estate, provided the debts are not avyavaharika or illegal. The burden of proving that there is a debt and that the debt is avyavaharika or illegal lies upon the son."
In the decision referred in S.M. Jakati v. S.M. Borkar (supra), while dealing with Mitakshara coparcenary and debts incurred by the father and pious obligation of the son to discharge and the meaning of Avayavaharika it was held :
"The term avyavaharika has been variously translated as being that which is not lawful or which is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as "a debt for a cause repugnant to good morals". There is another track of decision which has translated it as meaning "a debt which is not supported as valid by legal arguments". The Judicial Committee of the Privy Council held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the Smrithis texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition.
The liability of Hindu sons in a Mitakshara coparcenary family to discharge the debts of the father, the karta, which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property unless a provision has been made for the payment of the just debts of the father. Therefore even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition, the right of the judgment-creditor, who has obtained a decree against the father, to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons."
There cannot be any controversy relating to the proposition that when for the sake of joint family the father or karta of joint family had contracted debts not tainted with immorality or illegality or such debts are not avyavaharika debts, the law casts pious obligation on the part of the sons to discharge such debts.
24. The stand taken by the alienees as can be seen from the material available on record is that Items 1 to 4 are the self-acquired properties of the 1st defendant and the 1st defendant was doing paddy commission business and was running some welding shop. It is pertinent to note that in all the sale deeds and also the promissory notes executed by the 1st defendant, he was shown to be an agriculturist. Apart from this aspect of the matter, there is no other evidence placed on record to show that he was doing paddy commission business or running a welding shop and was getting some income or the ancestral nucleus available with the family had absolutely no nexus or was highly insufficient to acquire the subsequent acquisitions and hence they cannot be taken as joint family properties. In the absence of such evidence, clear findings had been recorded by both the Courts below on appreciation of both oral and documentary evidence that these alienations are not supported by legal necessity. The mere existence of adoptive father of the 1st defendant at the relevant point of time also would not alter the situation since it was nobody's case that the 1st defendant/father of the minors then, the plaintiff and the 3rd defendant, was not the karta of the joint family at the relevant point of time. No doubt, this novel point had been advanced at the stage of Second Appeal which is more fanciful in nature and in my considered opinion, the said contention also is liable for rejection only. For powers of karta of joint family in making alienations of joint family properties, reliance also was placed on Sunil Kumar v. Ram Prakash, , and Lal Dass v. Raghbir Dass, .
While dealing with legal necessity vis-a-vis the powers of karta of joint family, be that a father or a manager, compulsion or pressure on the estate, prudence to be exercised, benefit of the estate, proper management, nature of debts, proof in relation thereof, pious obligation and bona fide enquiries also may be the relevant considerations. Facts may be of varied nature and hence any straight jacket formula cannot be prescribed while judging these aspects and ultimately the overall facts and circumstances of the case may have to be appreciated in a partition action of sons challenging such alienations made by the father. Father or karta of a joint family though has a right to manage should act as a prudent person. On a comparison of the debts, especially in the light of the evidence that there was no pressure from the creditors, no prudent man would resort to selling away almost all the properties to the detriment of the minors of the family. This aspect also had been taken note of by both the Courts while recording the findings. The debts of the family as shown in Exs.B-4, B-9, B-10 definitely cannot have any corresponding nexus to the amounts realized by the 1st defendant by sale of aforesaid properties, the entire agricultural lands for discharge of such paltry debts. In the present case, on appreciation of the total oral and documentary evidence available on record, concurrent findings had been recorded that the 1st defendant had no independent income as a businessman as contended by the alienees and out of agricultural income only from the original ancestral nucleus other properties were acquired. No doubt a contention was advanced that while appreciating this aspect, the nature of the transactions and the period over which these transactions had spread over also may have to be taken into consideration. It is no doubt true that this factor also may be a relevant factor. Father as karta of the joint family is expected to act as a prudent man. Though clear evidence is available that these debts are tainted with immorality or illegality, evidence had been let in that at least all was not well with the 1st defendant and the plaintiff, DW-1 and DW-3 were driven out of the family and there were certain litigations in between the mother of the 3rd defendant, stepmother of the plaintiff and the 1st defendant. It was further clearly established that in the facts and circumstances there was no such compelling pressure from the side of the creditors which could have made the 1st defendant/father as karta of the joint family to take the decision of alienating almost all the agricultural lands to the detriment of interest of the minors. On appreciation of facts, this Court is of the considered opinion that the Courts below had appreciated even the aspect of burden of proof in proper perspective only and had arrived at a conclusion that even on the strength of the evidence available on record, there was absolutely no nexus to the so-called debts of the joint family contracted by the 1st defendant and the sale proceeds received by the 1st defendant. Of course, arithmetical calculations in a meticulous way may not be of any help in certain cases, but always it cannot be said to be so since these calculations may have some relevance at least to the limited extent of deciding the prudence of father/karta/manager of a joint Hindu family. It is no doubt difficult to lay down any hard and fast rule relating to the standard of prudence also. In this case, a serious attempt was made to show that the family was in debts and hence the 1st defendant alienated the properties, but there is no nexus to the amounts proved to be due by the family and the sale proceeds and there was no serious pressure also on the 1st defendant to discharge such debts. In this view of the matter, the alienations made by the 1st defendant were held to be acts of malfeasance on the part of the father as karta of the joint family. PW-1, the maternal grandfather of the plaintiff had deposed in detail about all the aspects. PW-3, the plaintiff had well supported the evidence of PW-1. DW-1, the mother of the 3rd defendant also had explained about the existence of ancestral properties and the necessity of the 1st defendant to borrow amounts and also deposed that the sale deeds are nominal. These witnesses also had deposed about the family affairs, disputes between the 1st defendant and DW-1 and driving away the plaintiff, DW-1 and DW-3 and they taking shelter under PW-1. Defendants 8, 5, 6 and 9 had examined themselves as DW-2, DW-3, DW-4 and DW-10. PW-2, the attestor of Ex.A-5 sale deed whereunder the 1st defendant and the adoptive father jointly sold Ac.0-85 cents had been examined. DW-5, the attestor of the sale deed of 5th defendant, DW-6, attestor of sale deeds of defendants 5 and 8 and DW-7 in relation to Ex.B-9, DW-8 in relation to Ex.B-10 and DW-9 in relation to Ex.B-4 were examined. No doubt some evidence was let into the effect that these alienations were made only to discharge the debts of the family. No doubt these witnesses also deposed relating to the 1st defendant doing commission business or running a welding shop, but the said stand was disbelieved especially in the light of the evidence of PW-1, PW-2, PW-3 and DW-1 and also the very recitals in the sale transactions and the promissory notes which had been relied upon even by the defendants. On appreciation of the facts and circumstances, this Court may have to arrive at an irresistible conclusion that the alienations in question are not only devoid of legal necessity for want of requisite pressure on the estate, but also definitely of lack of prudence or proper management on the part of karta. Definitely, these alienations are against the standard of prudence expected from the kartha, father or manager of a joint family as the case may be.
25. No doubt, an attempt was made at the Second Appellate stage by the adoptive mother also contending that the other alienations are not binding on her and in view of the fact that she had not preferred any independent Appeal as against the said findings either before the first appellate Court or before this Court, this Court is not inclined to disturb those findings at the stage of Second Appeal.
26. Now it is beyond controversy that on the material available on record there was sufficient ancestral nucleus and the other subsequent acquisitions in such a case may have to be taken as joint family properties only. Much reliance was placed on the recitals and when the recitals are being questioned by attacking the very transactions, much importance cannot be attached to such recitals which would be self- serving recitals. It is no doubt true that the plaintiff had taken a stand that both Item No. 1 and Item No. 5 are ancestral in nature and both the items constitute one single plot purchased by Sappa Tata, the father of the 1st defendant from one Chinna Subba Rao under two registered sale deeds dated 2-12-1981, one in his name and the other in the name of the 1st defendant and as a matter of fact the same two items were brought by the 1st defendant's father on sale proceeds of two acres of land belonging to the joint family.
Though the title deeds in relation to Items 2, 3 and 4 of the plaint schedule were obtained in the name of the 1st defendant they were also held to be joint family properties in view of the fact that sufficient nucleus was available. No doubt certain contentions were advanced to the effect that there is no specific plea relating to the joint family nucleus and the extent available to the original joint family and the subsequent acquisitions. In my considered opinion, this would not alter the situation in any way. It is no doubt true that in the written statement, the names of the creditors and the debts had not been specifically pleaded, but however in the recitals of the documents these debts had been referred to. Whatever may be the position, even on a comparison of the quantum of debts which were not pressing debts on the joint family even as per the evidence of creditors absolutely there is no nexus between the sales made by the 1st defendant and the alleged debts due by the joint family and hence both the Courts below had arrived at a correct conclusion that in the light of the facts and circumstances and in view of the availability of ancestral nucleus and inasmuch as the other items are only subsequent acquisitions taking the character of joint family properties, and inasmuch as legal necessities for alienations had not been established, the said alienations made by the father as an imprudent man would not be binding on the minors, the plaintiff and the 3rd defendant as well. In the light of the clear legal position laid down in the ratio of several decisions referred to supra, the findings recorded by the Courts below need not be disturbed in any way.
27. No doubt a vague attempt was made by the Counsel for the alienees that at any rate the 3rd defendant is not entitled to the relief since he had not questioned the alienations. As can be seen from the written statements and also the evidence of DW-1, specific stand was taken attacking the alienations on the ground of legal necessity and inasmuch as the 3rd defendant also stands on the same footing, both in law and in equity, since it is an action for partition, he is also entitled to the same relief to which the plaintiff is entitled to and hence the said findings in this regard recorded by both the Courts below also need not be disturbed by this Court in this Second Appeal and accordingly the said findings are hereby confirmed.
28. The next question which had been argued in elaboration is that the plaintiff is not entitled to the relief prayed for in the absence of a specific prayer of setting aside the sale deeds executed by the 1st defendant. Submissions at length were made by both the Counsel. The stand taken by Sri Durga Prasad Rao is that in view of the binding decision of the Full Bench of Madras High Court referred in Ramaswami v. Rangachariar (supra), inasmuch as no contrary opinion had been expressed by this Court, the same would be binding on this Court in view of the decision of the Full Bench referred in M. Subbarayudu v. State (supra). Since the minors are not eo nomine parties to the transactions, there need not be a prayer specifically for setting aside such alienations which are not binding on the plaintiff. In the decision referred in Ramaswami v. Rangachariar, (supra) it was held that in respect of alienations by the father to which the minor was not eo nomine a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation as the prayer is for a purely incidental but unnecessary relief. Reliance also was placed on the decision referred in S.R.M.AR. S.S.P. Sathappa Chettiar (supra) of Madras High Court. In the decision referred in Bijoy Gopal Mukerji v. Srimati Krishna Mashishi Debi (supra), where in a suit for declaration that an ijara granted by a Hindu widow of her husband's estate had become inoperative as against the plaintiffs (heirs of her husband) since her death, and for khas possession of the properties in suit with mesne profits it was held :
"That Article 144, and not Article 91 of Act XV of 1877 Schedule II, applied to the suit, which was substantially one for possession. There was no necessity for the declaration prayed, or to cancel or set aside the ijara, which the plaintiffs were, after the widow's death, entitled to treat as a nullity."
In the decision referred in Srinath v. Jagannath (supra), in a suit by some of the sons and grandsons to set aside a sale of a seven anna share of zamindari property belonging to the joint family by the father and manager, where the findings were that the sale price, Rs. 6,000/-, was not unreasonably low, that legal necessity had been established in respect of Rs. 3,281/-out of the Rs. 6,000/- but not in respect of the balance, and that the vendee had failed to prove that he had made due inquiries to satisfy himself that Rs. 6,000/-was required for legal necessities, and it also appeared that the vendee had made no attempt to show that there was really any urgent pressure on the vendor or on his estate which required an immediate raising of the whole amount, or the sale of the entire seven anna share, it was held that in the circumstances it could not be said that the sale itself was justified by legal necessity and the sale was accordingly set aside on condition of the plaintiffs paying Rs. 3,281/- to the vendee. It was also further held:
"...that where certain junior members of a joint Hindu family borrowed money from time to time on promissory notes, and the father and manager later on, while executing a sale deed of joint family property acknowledged his liability to the creditors for these debts and executed the sale in lieu thereof and of other debts taken by himself, the so-called acknowledgement did not constitute these debts as antecedent debts and legal necessity had to be proved in respect thereof."
In the decision referred in Unni v. Kunchi Amma (supra), wherein a suit was filed in 1888 on behalf of a Malbar tarwad by two of its members to recover property improperly alienated in 1879 under a kanom instrument by the karnavan, who had since been removed from office, it was held that since a prayer for cancellation of the kanom instrument was not an essential part of the plaintiffs relief, the suit was not barred by the three years, rule in Limitation Act, 1877, Schedule II, Article 91. In the decision referred in P. Seshagiri Rao v. P.S. Ramachandra Rao, (supra), this Court while considering a similar question held at paras 11 and 13 as hereunder :
"It now remains to be seen whether the sale deed is valid and binding on the plaintiff. It is the settled position that under Hindu Law the father has special powers of alienating coparcenary property which no other coparcener has. In the exercise of the said power, he may sell or mortgage the joint family property, which movable or immovable, including the interests of his sons for the payment of his own debt, provided it was an antecedent debt and was not incurred for immoral or illegal purposes. It is not the case of the plaintiff that the debt due to the Bank of Baroda is tainted by any illegality or immorality. On the other hand, it is his specific case that the said debt was contracted by him and his father jointly for family necessity. It, therefore, follows that even assuming that the entire suit property is joint family property, the sale of the same by the father to Defendants 1 and 2 for the discharge of the said debt is perfectly valid and binding on the plaintiff. So viewed from any angle, the plaintiff is not entitled to question the said sale.
The learned Counsel for the plaintiff-appellant has finally submitted that the lower Court erred in holding that the suit filed for partition without a prayer for cancellation of the sale deed is not maintainable and that the suit is also barred by limitation inasmuch as it was not filed within three years from the date of the alienation. I find force in this submission. As the plaintiff is not eo nomine a party to the sale deed, it is not necessary for him to pray for cancellation of the sale deed and it is open for him to question the validity and binding nature of the sale deed. In Ramaswami v. Rangachariar, AIR 1940 Mad. 113, a Full Bench of the Madras High Court held that in respect of alienations by the father to which the minor son was not eo nomine a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation. The Full Bench referred to in this context the following observations made in Unni v. Kunchi Amma, (1891) 41 Madras 26:
"If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist."
The same principle has been laid down in Bijoy Gopal v. Krishna Mahishi Debi (1907) 34 Calcutta 32 - 34 IA 87) regarding the alienations made by the widow of the last male owner which are sought to be impeached by the reversioners as not binding on them. It, therefore, follows that it was not necessary for the plaintiff to pray for cancellation or for setting aside the sale deed. In this view of the matter, the question of limitation also does not arise. However, this would not make any difference so far as the ultimate result is concerned."
29. It is not in controversy that the present suit is for partition and the sons are not made eo nomine parties to the sale transactions and the father had alienated the property and the alienations are attacked on the ground of want of legal necessity. In such a suit, specific prayer for cancellation of the sale deeds as such need not be prayed for. Even otherwise, this question which was not seriously canvassed before the Courts below had been argued at length by both the Counsel at the stage of Second Appeal. No doubt, strong reliance was placed on the decisions of the Apex Court referred in Viswambhar v. Laxminarayana (supra) and also Narayan Lal v. Sridhar Sutar, . These are matters concerned with the sale transactions by the guardian without the prior permission of the Court and the effect thereof in the light of the provisions of the Hindu Minority and Guardianship Act, 1956. It is pertinent to note that in this suit what had been challenged is the alienation of the ancestral joint family properties by the father without legal necessity and the binding nature thereof on the sons of a Hindu joint family. Hence, in the light of the ratio laid down by the Madras High Court referred in Ramaswami v. Rangachariar (supra) and also in view of the decision of this Court referred in P. Seshagiri Rao v. P.S. Ramachandra Rao (supra), this question which had been seriously canvassed need not detain this Court any longer and the result would be to negative the contention raised by the Counsel for the appellants in this regard.
30. The next question on which certain contentions were advanced is in relation to mesne profits granted from date of judgment instead of granting from the date of suit. Strong reliance was placed on Order 41, Rule 33 of the Code of Civil Procedure and contentions were advanced that this Court even in a Second Appeal can modify the said judgments and decrees to the said extent granting mesne profits from the date of institution of the suit instead of confirming the finding granting mesne profits only from the date of the judgment. In the decision referred in Dhangir v. Madan Mohan, (supra), it was held :
"Rule 22 and Rule 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under Rule 22 against co-respondent. Rule 33 could take over and come to the rescue of the objector. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require, the words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these : That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal."
Strong reliance had been placed on the decisions referred in Basavayya v. Guravayya, Hari Sankar v. Anath Nath and Panna Lal v. State of Bombay (supra). It is no doubt true that the trial Court held that the plaintiff and the 3rd defendant are entitled to future mesne profits on their respective shares from the date of judgment only till they are put in possession. It is no doubt true that the mesne profits could have been granted even from the date of institution of the suit. But however, when both the Courts below had exercised the discretion of granting the mesne profits from the date of judgment, this Court in Second Appeal is not inclined to disturb the said findings and hence the said findings also are hereby confirmed. It is no doubt true that certain subsequent events relating to the removing of stones and the visiting of the Commissioner in the final decree proceedings also had been canvassed and no findings need be recorded on these aspects since these are questions left open to the concerned Court to make appropriate orders in this regard.
31. The oral evidence of PW-1 to PW-3 and DW-1 to DW-10 and the documentary evidence Exs.A-1 to A-9 and Exs.B-1 to B-10 also had been elaborately discussed and in view of elaborate findings recorded by both the Courts below, it is suffice to state that there is neither perversity nor illegality in the findings recorded. No doubt certain submissions were made relating to the limitations imposed on this Court under Section 100 of the Code of Civil Procedure and reliance was placed on the decisions of the Apex Court referred in Hafazat Hussain v. Abdul Majeed, and Yadarao Dajiba Shrawane (died) by LRs. v. Nanilal Harak Chand Shab (dead) and Ors. (supra). In the light of the clear concurrent findings recorded by both the Courts below on all the aspects, this Court is of the considered opinion that the judgments and decrees made by the Courts below do not suffer from any legal infirmity whatsoever and accordingly the findings recorded by both the Courts below are hereby confirmed and the second appeal shall stand dismissed Since alienees alone are fighting the litigation, this Court directs both parties to bear their own costs.