Narasimha Bhatta v. Ramakrishna Bhatta — 1973 DIGILAW 98 (KER)

JUDGMENT P. Subramonian Poti, J. 1. In this appeal by the plaintiff in the suit the question that we are called upon to decide is a simple one. Suit properties described in Schedules B, C and D are said to have belonged to the joint family of the plaintiff of which the first defendant is the manager. B and C schedules are immovable properties. B schedule properties were sold under Ex. B1 on 6-10-1961 by defendants 1 to 3 acting also as guardian of the minor members of the family, in favour of 7th defendant for a consideration of Rs. 25,000/-. The plaintiff is one of such minor members and plaintiff now sues for partition claiming the share in plaint B schedule property also. The sale deed Ex. B1 is sought to be avoided on the ground that it is not binding on the family as one unsupported by consideration as well as necessity. Plaintiff and defendants 2 to 5 are the children of the first defendant while the 6th defendant is the son of the second defendant. In a partition of the joint family properties plaintiff as well as defendants 1 and 3 to 5 are each entitled to 1 /6th share while the second defendant along with the 6th defendant is entitled to 1 /6th share. Therefore defendants 1 to 3 are entitled to 5 1/2 share. The sale deed was sought to be supported by the 7th defendant on the ground that at the time it was executed there were several debts binding on the family, that these debts could not be paid off from the income of the properties, that amounts were also expended for the purpose of improving the C Schedule properties and this was by borrowing and further that B Schedule properties were not yielding .any appreciable income. Therefore it is said that the first defendant acted prudently as manager in executing the sale deed Ex. B1 along with the other major members of the comparaenary. The Court below did not accept this plea finding that the debts were proved only to the extent of Rs. 6,235/- and pressing necessity for disposal of the B Schedule property for Rs. 25,000/- was not proved in the case. All the same, the 7th defendant got substantial relief and in fact it may not be far from wrong to say that whatever she wanted she obtained. 6,235/- and pressing necessity for disposal of the B Schedule property for Rs. 25,000/- was not proved in the case. All the same, the 7th defendant got substantial relief and in fact it may not be far from wrong to say that whatever she wanted she obtained. This is by the direction that B Schedule properties would be available to the 7th defendant towards the share of her alienors, defendants 1 to 3. Taking into account the extent of the properties covered by B and C Schedules, the Court below found that B Schedule properties are less than the value of C Schedule and therefore for the 5 1/2 share B Schedule properties would be available to defendants 1 to 3 and that would mean that the alienee, the 7th defendant could get these properties. The result is that though on the question of binding nature of Ex. B1 the Court had found against the 7th defendant, still she obtained the B Schedule properties. Aggrieved by this, plaintiff has filed the appeal to this Court. 2. Of course, it cannot be disputed that in a suit for general partition the alienees of specific items of properties are entitled to plead that as far as possible those properties should be allotted to the shares of alienors whose alienations are impeached and that must be available to the alienees. The only contention urged before us is that even so, the direction by the Court below that the entire B Schedule properties must fall to the share of defendants 1 to 3 and consequently must be allotted to the 7th defendant is erroneous in law. For, without a proper adjudication as to the value of these items of properties and also of C Schedule items, it cannot be predicted that the entire B Schedule properties will be available for the 5 1/2 share. Possibly defendants 1 to 3 may get the B Schedule properties, the whole of it or more towards their share. But merely on the basis of extent or income the Court which prima facie thinks that the share of defendants 1 to 3 will be equivalent to the value of B Schedule items should not have found so finally without further evidence. That is a matter for decision under the final decree. But merely on the basis of extent or income the Court which prima facie thinks that the share of defendants 1 to 3 will be equivalent to the value of B Schedule items should not have found so finally without further evidence. That is a matter for decision under the final decree. In fact, if the share of defendants 1 to 3 will not be satisfied by B Schedule items, they are entitled to be allotted that much more to make up such share out of other items. Hence the proper decree in the case would be to allot 5 1/2 share to defendants 1 to 3 out of the B, C and D Schedule items and in doing so B Schedule item must first be set apart for such share, to the extent it will cover 5 1/2 share. If the whole of the B Schedule item would not be sufficient to cover such 5 1/2, naturally the 1 rest must be made up from other items of properties. To the extent B Schedule items are set apart to defendants 1 to 3 it must be allotted in the final decree to the 7th defendant subject to the direction to deposit balance of consideration, a matter to which we will presently refer. We should also point out here that in valuing B Schedule items for the purpose of partition the improvements effected since Ex. B1 date should not be reckoned or in other words the value of B Schedule items without reckoning the improvements on them effected after Ex. B1 date should be taken as value for the purpose of partition. 3. Before we finally decide the appeal it is necessary to refer to the objections to the finding of the Court below urged before us in this Court. The decree of the Court below is apparently in favour of the 7th defendant and the 7th defendant need not therefore file any cross objection as he has done. The attempt appears to be to support the decree of the Court below on other grounds namely, that the sale deed is supported by necessity and consideration. If that be the case, the proper course would have been to file objection to the finding or to urge such objection. But we treat the cross objection filed as a mere objection to the finding. 4. If that be the case, the proper course would have been to file objection to the finding or to urge such objection. But we treat the cross objection filed as a mere objection to the finding. 4. We do not think that there is any merit in the objection to the findings of the Court below. Of course, it has been proved that the document is executed for consideration. Consideration shown is Rs. 25,000/- made up as follows: A sum of Rs. 3,735/- is towards the discharge of a mortgage debt under Ex. B13. Another sum of Rs. 25,000/- is towards the discharge of a promissory note, Ex. B3 of the year 1959. A sum of Rs. 8,265/- is paid before the Sub Registrar and is said to be for discharge of the debts of the executants family and also for improving their properties. A sum of Rs. 10,500/- is reserved for payment in instalments as and when each of the minors attained majority or for purchase of properties. It is agreed that a mortgage was executed by the first defendant on 6-4-1943 for Rs. 2,500/- charged upon the B Schedule properties. Ex. B8 is the mortgage. This was soon after the partition under which the family got these properties in 1942; this mortgage Ex. B8 was not discharged. But a further mortgage was executed on 31-5-1950 under Ex. B13 for a sum of Rs. 3,500/- which was inclusive of the earlier mortgage amount under Ex. B8. This mortgage too was not discharged. Properties in B Schedule had been leased out in the year 1950 for a term of 6 years under Ex. B11 to a lessee who is PW-2. But even before the expiry of the term he surrendered the property under Ex. B12 and the surrender deed indicated that he was not able to pay the rent and so he surrendered it. The mortgage amount of Rs. 3,500/- and interest thereon amounting to Rs. 3,735/- is one of the items of consideration for Ex. B1 sale deed and that has been found to be an item binding on the tarwad. It appears that in the year 1959 the first defendant executed Ex. B3 in favour of the 7th defendant and it is said that this was borrowed for the purpose of meeting the expenses in connection with improving the C Schedule property. A sum of Rs. It appears that in the year 1959 the first defendant executed Ex. B3 in favour of the 7th defendant and it is said that this was borrowed for the purpose of meeting the expenses in connection with improving the C Schedule property. A sum of Rs. 8,265/- which is said to have been paid before the Sub Registrar is mentioned as discharge of other debts. This and the sum of Rs. 10,500/- reserved for payment constitute the major portion of the consideration. The Court below has held that if at all there was any necessity that was for discharge of the loan 6,235/- and it . could not be said that the sale of the entire B Schedule properties for Rs. 25,000/- was called for in the circumstances of the case. It is that finding which is challenged. 5. As found by the Court below only a debt of Rs. 6,235/- has been proved to have been in existence on Ex. B1 date. No doubt in the evidence of DW 1 he speaks of a borrowal of Rs. 3,000/- from one Narayana Bhatta. This Narayana Bhatta or for that matter any other creditor has not been examined in the case. The debt to Narayana Bhatta is not mentioned in the written statement. In fact the existence of this debt is not even suggested to PW 1. Therefore, on the evidence in the case, it is not possible to find that the family had any other debt which it was obliged to pay off on the date of Ex. B1. The family was possessed of substantial properties. C Schedule properties, even according to DW 1 yielded on the date of Ex. B1, 5 to 6 kandies of areca and 500 cocoanuts and within about 3 years the yield was 8 to 10 kandies of areca and 1000 cocoanuts. Even according to DW 1, on the date of Ex. B1, B Schedule properties yielded an income of 15 maunds of areca and 2500 cocoanuts. But according to the plaintiff it was much more namely 3 kandies of areca and 2,000 cocoanuts. The value of one kandy of areca is said to be Rs. 1,200/- at that time. Even according to DW 1, on the date of Ex. B1, B Schedule properties yielded an income of 15 maunds of areca and 2500 cocoanuts. But according to the plaintiff it was much more namely 3 kandies of areca and 2,000 cocoanuts. The value of one kandy of areca is said to be Rs. 1,200/- at that time. We are only mentioning this to show that the family was possessed of substantial properties from out of the income of which attempts could have been made over the years to discharge the debt and if members of such a family think of alienating a property for the payment of debts, the evidence that would be necessary to uphold alienation is not to be what is available in this case. Of course, the position would have been different if the plea was that it was not possible to continue in possession of B Schedule properties and in the circumstances it was absolutely necessary that B Schedule property should be sold, proceeds conserved and invested in a manner which was more beneficial to the family. That of course is not the way in which the case has been attempted to be proved. Therefore, on the facts of the case, we have to agree with the Court below that though the consideration for the document is shown, necessity has not been proved. Accordingly we have to hold that the alienation cannot be upheld. But all the same, as found by the Court below the alienee is entitled to claim that these properties should, as far as possible, be allotted to the share of the alienors namely, defendants 1 to 3 and that right has been recognised in the decree of the Court below. But that would be available only on deposit of Rs. 10,500/- reserved for payment in the document with interest at 5 1/2 per cent per annum stipulated in Ex. B1. But that would be available only on deposit of Rs. 10,500/- reserved for payment in the document with interest at 5 1/2 per cent per annum stipulated in Ex. B1. In the result, while we agree with the conclusion reached by the Court below, we think it is necessary to modify the decree passed by that Court as follows: Towards 5 1/2 share of defendants 1 to 3 B Schedule properties or so much of that as would make up 5 1/2 share in B, C and D Schedule items would be set apart to them and that will be allotted to the 7th defendant subject to the condition we will just now mention. If this 5 1/2 share is not satisfied by the setting apart of the B Schedule properties alone, defendants 1 to 3 will be allotted from out of other properties to make up that share and that will be available to defendants 1 to 3. In case the entire B Schedule is covered by the 5 1/2 share so much so 7th defendant would get the entire B Schedule, the 7th defendant is bound to pay an amount of Rs. 10,500/- with interest at 5 1/2 per cent from Ex. B1 date till date of deposit less the amount paid under Ex. B4 towards interest and the Court below will make necessary directions for deposit of this amount within a period to be specified in the decree for such deposit. Failing such deposit the Court will also pass a decree for sale for the amount so due to defendants 1 to 3. We also make it clear that in valuing the B Schedule it will be without reckoning the improvements thereon effected after Ex. B-1 date. The appeal is allowed to the above extent. Parties are directed to suffer costs. The cross objection is dismissed. No costs.