DODDA THIMME GOWDA v. EREGOWDA — 1970 DIGILAW 75 (KAR)

( 1 ) THIS is a second appeal by defendant No. 1 against the decree passed by the Civil Judge, Mandya, in R. A. No. 2 of 1964. The 1st respondent is the plaintiff and respondents 2 to 12 have been impleaded as additional defendants subsequent to the filing of the suit. ( 2 ) RESPONDENT No. 1 filed O. S. No. 553/1961 in the court of the munsiff, Mandya, for declaration of title and possession of the suit schedule property bearing S. No. 245/7 situated in Volagarhalli, Kasaba Hobli, maddur Taluk, and in the alternative for partition and possession of 19/20th share in the said suit schedule property. ( 3 ) RESPONDENT No. 1 claims title to the suit schedule property on the basis of a sale deed executed by defendants 2 to 12 in his favour on 15th july 1960 as per the registered sale deed produced in the case as Ex, P-1. Defendants 2 to 12 and one Dasappa constitute a joint Hindu family. The suit schedule property was admittedly a joint family property belonging to the joint family consisting of defendants 2 to 12 and Dasappa. ( 4 ) DEFENDANT No. 1, the present appellant, resisted the suit on various grounds. His case is that he has himself purchased the entire suit schedule property from Dasappa under registered sale deed dated 19-2-1958 which is produced in this case as Ext. D-1. The case of the appellan't is that the suit schedule property was sold by Dasappa as the kartha of the joint family consisting of himself and the other co-parceners, namely defendents 2 to 12. He also took up the contention that the suit schedule propery was sold to him by the karta of the family in order to discharge some antecedent debts. He further took up the contention that respondent No. 1 not being a coparcener, but being a stranger to the family is not entitled to impeach the earlier sale by Dasappa in favour of the appellant. ( 5 ) AFTER the appellant filed the written statemtnt as aforesaid, respondent No. 1 filed on application and got impleaded his own vendors as additional defendants 2 to 12. Defendants 2 to 12, by their written statement filed on 24-10-1961, supported the case of the plaintiff. ( 5 ) AFTER the appellant filed the written statemtnt as aforesaid, respondent No. 1 filed on application and got impleaded his own vendors as additional defendants 2 to 12. Defendants 2 to 12, by their written statement filed on 24-10-1961, supported the case of the plaintiff. They alleged that Dasappa was not the karta of the family and was not entitled to alienate the suit schedue property in favour of the appellant. They further alleged that the sale in favour of the appellant is not supported by legal necessity. Their case is that there was no antecedent debt to discharge. In substance, they took up the contention that the earlier sale by Dasappa in favour of the appellant is not binding on them. They further alleged that the sale of the entire property by them in favour of respondent No. 1 is legal and valid and that it is supported by ]egal necessity. ( 6 ) THE learned Munsiff, Mandya, after considering the evidence placed on record, dismissed the suit filed by respondent No. 1. He recorded a finding that respondent No. 1 has not acquired any title to the suit schedule property and that he was also not in possession of the same. He further recorded a finding in favour of the appellant to the effect that he was the owner of the suit schedule property and in actual possession of the same. He did not record any finding on the additional issue as to whether the sale by Dasappa in favour of the appellant is for legal necessity. The learned Munsiff considered it unnecessary to record a finding on the additional issue on the ground that the sale in favour of the appellant by Dasappa has not been challenged. ( 7 ) BEING aggrieved by the aforesaid decree, the plaintiff-respondent no. 1, filed R. A. No. 2/1964 in the court of the Civil Judge, Mandya. The learned Civil Judge after re-appreciating the evidence on record allowed the appeal of respondent No. 1. He has given a declaration that respondent no. 1 is entitled to 19/20th share in the suit schedule property. He has further made a decree for partition and possession of the said 19/20th share in favour of respondent No. 1. He has also recorded a finding that the alienation by Dasappa in favour of the appellant is not supported by legal necessity. 1 is entitled to 19/20th share in the suit schedule property. He has further made a decree for partition and possession of the said 19/20th share in favour of respondent No. 1. He has also recorded a finding that the alienation by Dasappa in favour of the appellant is not supported by legal necessity. He has further recorded a finding that it was not necessary for respondent No. 1. to have brought a suit for general partition and to specifically impeach the earlier sale by Dasappa in favour of the appellant. ( 8 ) IT is the correctness of the aforesaid decree passed by the Civil judge, Mandya, that is challenged by defendant No. 1 in this second appeal. ( 9 ) SRI Tilak Hegde, the learned Counsel for the appellant firstly contended that the suit filed by respondent No. 1 for partition and possession of the suit schedule property is not maintainable. It is urged by Sri Hegde that respondent 1 who is a purchaser of one of the items of the joint family property is not competent to file a suit either for exclusive possession of the property or for partition and possession of that property. His case is that if a general suit for partition was filed by respondent No. 1, it would have been possible for him to persuade the Court to allot, as far as possible, the property purchased by the appellant to the share of Dasappa. As the general suit for partition has not been filed by respondent No. 1 the right to claim that the suit schedule property should be allotted to the share of dasappa has been denied to the appellant. In support of this contention of his, Sri Hegde firstly relied upon a decision of the Madras High Court in subba Gounder v. Krishnamachari, ILR. 45 Mad. 460. Sri Hegde relied upon the following passage of the said judgment of the Madras High Court occurring at pages 460 and 461;"a purchaser, however, cannot sue for a partition of the item sold to him and obtain an allotment by metes and bounds of his vendor's share in that portion of the property but is bound to file a suit for a general partition (vide Venkatarama v. Neera Dubbai (1890) ILR 13 Mad. 275) and Palani Konan v. Masakonam ( (1897) ILR. 20 Mad. 275) and Palani Konan v. Masakonam ( (1897) ILR. 20 Mad. 243), though it has now been settled by the decision of the Full Bench in Chinnu Pillai v. Kalianthu Chetti ( (1912) ILR. 35 Mad. 47,f. B.) that there is no fluctuation in the share to which an alienee is entitled, his share being the share of the vendor at the date of the alienation subject of course to the equities in favour of the other members of the family against the transferor ). It has also been settled that a vendee from a co-parcener is not a tenant in common with the other members. The view taken by Sundara Ayyer and Benson, JJ , in subba Rao v. Ananthanarayana Aiyer ( (1912) 23 MLJ 64 ), has not been followed in Maharaja of Bobbili v. Venkataramanjulu Naidu ( (1916) ILR. 39 Mad. 265) and Manjaya v. Shanmuga ( (1916) ILR. 38 Mad. 684) and in Kota Balabhadra Patra v. Khetra Doss ( (1916) 31 MLJ. 275 ). A purchaser has only an equity as against the other members of the co-parcenary to work out his interests by suit for a general partition. In cases where possession of the property is claimed by a co-parcener on the ground of the invalidity of the alienation as against him the current of authority is to decree possession and simply declare the right of the purchaser to a partition. "the facts of the aforesaid case decided by the Madras High Court are briefly these: The plaintiffs in that suit sought a decree for possession of the suit properties from the defendant who had purchased those properties from the tather of the plaintiffs. The case of the plaintiffs was that the sale of the suit schedule properties by their father was not valid and binding on them as the said sale was not supported by any legal necessity. It was the case of the parties that the properties purchased by the defendants were the joint family properties, the joint family consisting of the paintiffs and their father, viz. , the vendor of the suit schedule properties. The defendants resisted the suit inter alia contending that the plaintiffs' father having sold the suit schedule properties in their favour for discharging the antecedent debts and for other family necessities the sale was binding on the plaintiffs. , the vendor of the suit schedule properties. The defendants resisted the suit inter alia contending that the plaintiffs' father having sold the suit schedule properties in their favour for discharging the antecedent debts and for other family necessities the sale was binding on the plaintiffs. They further took up the contention that the suit claiming possession without requiring a general partition and without impleading the other coparceners is not maintainable. The trial Court in that case came to the conclusion that the alienation was for valid purposes and so binding on the plaintiffs. The plaintiffs' suit was consequently dismissed. The appeal filed by the plaintiffs in the Court of the Subordinate Judge was allowed. The appellate Judge came to the conclusion that the sale was not binding on the paintiffs so far as their share in the suit schedule properties was concerned. The appellate Judge passed a decree for possession in favour of the plaintiffs. He, however, held that the defendants are entitled to bring a separate suit for partition. It was the correctness of the decree passed by subordinate Judge that was challenged in second appeal. The Division bench which heard the appeal while confirming the decree for possession, in favour of the plaintiffs modified the decree of the trial Court by declaring that the defendants are entitled to half share of the vendor which they will be at liberty to work out by a suit for partition. It is clear from the facts of the case dealt with by the aforesaid decision of the Madras H. C. that they were dealing with a suit filed by non-alienating co-parceners for possession against the vendee of a specific joint family property which was sold by the father of the non-alienating co-parceners. That was not a suit for partition between two strangers to the joint family as in the present case. In the present case, the second purchaser of the joint family property has sued against the first purchaser of the same property. The contesting parties, viz. , the plaintiff and defendant No. 1 in the present case are both strangers to the joint family. Their Lordships of the Madras high Court were dealing with a case filed by the non-alienating co-parceners against the vendee for possession of the property sold by the father of the non-alienating co-parceners. The contesting parties, viz. , the plaintiff and defendant No. 1 in the present case are both strangers to the joint family. Their Lordships of the Madras high Court were dealing with a case filed by the non-alienating co-parceners against the vendee for possession of the property sold by the father of the non-alienating co-parceners. The ratio of the said decision will not therefore be applicable to the facts of the present case. It is necessary to note that in the aforesaid case, their Lordships have followed an earlier decision of the Full Bench of the Madras High Court in Iburamsa Rowthan v. Thirumalai Muthuveera Theruvenkataswami, ILR. 34 Mad 269. The question for consideration by the Full Bench of the Madras High Court was "whether when certain items of family properties are conveyed by one of two coparceners of a Hindu family to a stranger for purposes not binding on the family, the alienee from the other co-parcener nf his share in the said properties may, without instituting a general suit for partition of the entire family property, maintain an action for the partition of his share in the said items". After reviewing the authorities on the question, the full Bench answered the aforesaid question in the affirmative. The question that the Full Bench of the Madras High Court answered is the precise question that has aritcn for consideration in the present case. The ratio ot the decision in the aforesaid Full Bench decision is fully applicable to the facts of the present case. The Full Bench decision of the madras High Court has been followed by the erstwhile High Court of mysore in two decisions in Naranachar v. Dasappayya, (1922) 27 Mys. CCR. 216. and Sherifa Bi v. Kenchappa, (1947) 52 Mys. HCR. 368. . I respectfully agree, for the reasons stated below, with the view taken by the Full Bench ci the Madras High Court which has been followed by the erstwhile High Court of Mysore. ( 10 ) IN a case like this where all the coparceners have alienated their undivided interest in the specific joint family property and the property is in the possession of strangers, a suit for general partition will not be of any advantage to the co-parceners. Similarly, it will not be of any advantage to the stranger-purchasers to file 9 suit for general partition. Similarly, it will not be of any advantage to the stranger-purchasers to file 9 suit for general partition. ( 11 ) THE only principle involved in requiring a suit for general partition being filed by the purchaser of a specific item of property of the joint family, against the members of the family is to enable the stranger-purchaser to get the property allotted to the share of the co parcener who has alienated the property to him as far as practicable. In substance, it is really to work out the equities that a general suit for partition is insisted. In a case like this, where the. same item of joint family property is first sold by one co-parcener and thereafter it. is sold by the remaining co-parceners to another stranger, the question ot adjusting equity would really not arise. If the entire property is allotted to the share of the co-parcener who first sold the property, then the first purchaser would be entitled to the entire property purchased by him. The resulting position would be that the second purchaser who has purchased the property from the remaining co-parceners, will not at all be entitled to claim any portion of the property purchased by him. It is necessary to note that if the first purchaser has an equitable right in his favour to get the property allotted to the share of his own vendor, the second purchaser will also be similarly entitled to an equitable right to get the property purchased by him allotted to the share of his own vendors. This equitable right of the second purchaser would be defeated if the entire property is allotted to the share of the co-parcener who sold the property to the first purchaser. It is therefore clear that if a general suit for partition is brought in a case where the same property is sold by different co-parceners to different purchasers, the equitable rights of the second and subsequent purchasers cannot at all be given effect to. Therefore, no useful purpose at all would be served by insisting on a suit for general partition being filed in a case of this type where one co-parcener has sold one item of immoveable property without any legal necessity and the same property is subsequently sold by the remaining co-parceners to another purchaser. Therefore, no useful purpose at all would be served by insisting on a suit for general partition being filed in a case of this type where one co-parcener has sold one item of immoveable property without any legal necessity and the same property is subsequently sold by the remaining co-parceners to another purchaser. As the entire property cannot be allotted either to the share of the co-parcener who first sold the property or to the share of the co-parceners who subsequently sold the same property, the only rights that the purchasers can claim is the extent of the right their respective vendors possessed at the time of the alienation. In a case like this, therefore, the first purchaser would be entitled to a share in the property purchased by him to the extent of the share which his own vendor possessed. The same is the position in respect of the subsequent purchasers from the remaining co-parceners. These rights of the rival stranger-purchasers can conveniently be enforced by a suit filed by stranger purchaser against the other stranger-purchasers for partition of the specific joint family property purchased by them. I therefore hold that the present suit for partition and possession of the specific property is maintainable and that it was not necessary for the plaintiff to have brought a suit for general partition in this case. ( 12 ) THE learned Counsel for the appellant next contended that the present suit filed by subsequent purchaser without asking for partition and possession or his share in the property is not maintainable on the ground that no declaration has been sought by the plaintiff impeaching the sale by Dasappa, the karta of the family, in favour of defendant No. 1. There is absolutely no substance in this contention. The non-alienating co-parceners, viz. , defendants 2 to 12, were not parties to the sale by dasappa in favour of defendant No 1. They have neither approved nor consented to the said sale. On the contrary, they have disapproved the said sale and have taken an attitude that the sale is not binding on them. That is clear from their conduct in selling the same property to the plaintiff on 15th July 1960 under the sale deed. Ext P-1. They have neither approved nor consented to the said sale. On the contrary, they have disapproved the said sale and have taken an attitude that the sale is not binding on them. That is clear from their conduct in selling the same property to the plaintiff on 15th July 1960 under the sale deed. Ext P-1. The sale by Dasappa in favour of defendant No. 1 is valid to the extent of the share of Dasappa which admittedly in this case was 1/20th share. The sale to that extent in favour of defendant No. 1 is valid The sale would have been binding on all the co-parceners only if the sale was for legal necessity. It has been found in this case that the sale was not at all supported by legal necessity. Therefore, defendant No 1 could validly convev title only to the extent of his 1|20th share. It was therefore not necessary for the plaintiff in this case to ask for a specific declaration that the sale by Dasappa in favour of defendant No. l is not valid, at any rate, to the extent of 19/20th share. ( 13 ) LIKEWISE, there is also no substance in the contention of the learned counsel for the appellant that it is only defendants 2 to 12 that were entitled to take the contention that the sale by Dasappa in favour of defendant No. 1 is not binding on them on the ground that it is not. supported by legal necessity and not the plaintiff. It is necessary to note in this case that all the non-alienating co-parceners, viz. . defendants 2 to 12, have alienated the entire property in favour of the plaintiff. They have also filed a written statement in this case fully supporting the plaintiff's case. If all the non-alienating co-parceners were entitled to impeach the sale in favour of defendant No. 1 on the ground that it is not supported by legal necessity, the purchaser of the suit schedule property from all the non- alienating co-parceners is also entitled to impeach the sale and contend that the sale in favour of defendant No 1 not being supported by legal necessity, the plaintiff is entitled to the share of the property which the non-alienating co-parceners possessed in repeet of the suit schedule property. ( 14 ) THE learned Counsel for the appellied next contended that the lower appellate Court committed an error in reding that not only defendant No. 1 should establish that the sale in his favour was supported by legal necessity, but also that he should establish that the purchase money was actually made use of for that purpose It is no doubt true that the learned Judge has made such observations in the course of his judgment The learned Counsel for the appellant is therefore right in making a complaint that the view expressed by the lower appellate Court in this behalf is not in accordance with law It is enough for the defendants to establish that the transaction is supported by legal necessity. It is not at all necessary for the defendants to further establish that the purchase money was utilised for legal npcessity. But even though the lower appellate Court has taken a wrong view in this behalf, it does not help the appellant in regard to the final decision of the appeal. The lower appellate Court has on proper appreciation of the evidence on record recorded a finding that the sale in favour of defendant No. 1 is not supported by legal necessitv. That is a finding of fact arrived at on proper appreciation of the evidence on record That finding being a finding of fact is not liable for interference in second appeal. ( 15 ) AS the finding on the question of legal necessity is against the appellant, the appellant cannot succeed even though I agree with the appellant's contention that the lower appellate Court committed an error in holding that the defendants were required to prove that the purchase money was used for legal necessity. ( 16 ) FOR the reasons stated above, this appeal fails and the same is dismissed. In the circumstances, the parties are directed to bear their respective costs. --- *** --- .