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2002 DIGILAW 72 (AP)

C. S. Paul v. C. S. Pushparaj

2002-01-24

L.NARASIMHA REDDY

body2002
L. NARASIMHA REDDY, J. ( 1 ) IN this appeal, the judgment and decree in OS No. 110 of 1981, dated 21-8-1987 on the file of the Additional Subordinate Judge, Chittoor is under challenge. ( 2 ) THE parties are referred to as arrayed in the suit. ( 3 ) PLAINTIFFS filed the suit for partition and separate possession of the suit-schedule properties. Defendants 1 and 2 are brothers. Defendant No. 3 is their mother. Plaintiffs 1 and 2 are the sons of Defendant No. 1 Plaintiff No. 3 is the son of Defendant No. 2. It is the case of the plaintiffs that the suit schedule property was acquired by their grand father, Pakala Chinnaiah. That after his death, the 3rd defendant was looking after the assets of the family. It is pleaded that Defendants 1 and 2 were addicted to vices, particularly, of consuming and selling illicit liquor and taking advantage of the illicit habits of Defendants 1 and 2, Defendant Nos. 4 and 5 got certain nominal sale deeds executed in their favour in respect of the suit schedule property. They pleaded that the sales were not for family necessity and that they are not binding on them. They contended that the sales have taken place when they were minors. ( 4 ) DEFENDANTS 1 and 2 remained ex pare. Defendant No. 3 supported the claim of the plaintiffs. Defendant No. 5 filed a written statement stating that the allegation that Defendants 1 and 2 were addicted to illicit habits is not correct and that the sales were effected for the family necessities. He pleaded that the sales are hot vitiated in any way. ( 5 ) ON the basis of the pleadings, the trial Court framed the following issues:1. Whether the alienation of the suit properties made by the defendants 1 and 2 are true, valid and binding on the plaintiffs?2. Whether the suit is bad either for mis-joinder of the parities or for non-joinder of parties as stated by the defendants 4 to 6 ?3. Whether the plaintiffs are entitled for any shares in the suit properties?4. Whether the plaintiffs are entitled for any preliminary decree? ( 6 ) ON behalf of the plaintiffs PWs. 1 to 3 were examined and on behalf of the defendants DWs. 1 and 2 were examined. DW1 is the 3rd defendant, who has supported the claim of the plaintiffs. Whether the plaintiffs are entitled for any shares in the suit properties?4. Whether the plaintiffs are entitled for any preliminary decree? ( 6 ) ON behalf of the plaintiffs PWs. 1 to 3 were examined and on behalf of the defendants DWs. 1 and 2 were examined. DW1 is the 3rd defendant, who has supported the claim of the plaintiffs. Therefore, the evidence led in opposition of the claim of the plaintiffs can be said to be only that of 5th defendant, who deposed as DW2. Documents, Exs. A1 to A4 and B1 to B7 were marked. The trial Court on the basis and on appreciation of oral and documentary evidence, dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the trial Court in this appeal. ( 7 ) SRI A. Rangachatyulu, the learned Counsel for the plaintiffs, submits that the averments in the pleadings have clearly pointed out the question as to whether the alienations effected by Defendants 1 and 2 were for the family necessity and that the trial Court ought to have framed an issue in that regard. He further submits that even though no such issue was framed, both the parties have consciously adduced the evidence on the issue as to the legality or otherwise of the family necessity and once that evidence was on record, the trial Court ought to have addressed itself to that question. According to him, though the trial Court at some places discussed that question, the discussion was in a wrong direction, in that, it placed the burden on the plaintiffs to prove the legality or otherwise of the necessity. ( 8 ) SRI T. Veerabhadrayya, the learned Counsel for the defendants on the other hand, submits that the pleadings were silent as to the legality or otherwise of the necessity of the family and that being so, the trial Court was justified in not framing any issue. He further submits that realizing their difficulty, the plaintiffs have come forward with an application in IA No. 481 of 1985 for amending the plaint to incorporate the said plea. The same was dismissed on 12-7-1985 and it became final and once that is so, the question as to the legality or otherwise of the family necessity cannot be agitated in the appeal, much less, expected to have been dealt with by the trial Court. The same was dismissed on 12-7-1985 and it became final and once that is so, the question as to the legality or otherwise of the family necessity cannot be agitated in the appeal, much less, expected to have been dealt with by the trial Court. ( 9 ) THE relationship of parties is not in dispute. The factum of alienations at various points of time under different sale-deeds, which were marked as exhibits, is also not in dispute. In a suit for partition, a coparcener is entitled to plead that any alienations made by the persons in the management of the family were not for the bona fide family needs. Wherever such a plea is taken, the burden shifts to the parties justifying the sales, to establish that there existed a bona fide family necessity justifying the sale. It is in this context that the question assumes importance. ( 10 ) REFERRING to the pleadings, it needs to be noticed that the plaintiffs stated as under in their plaint:"7. The plaintiffs submits that the Defendants 1 and 2 are addicted to drinking and others bad ways of life. Taking advantage of their addiction of drinking the Defendants 4 to 7 have obtained number of sale deeds fraudulently from the Defendants 1 and 2 and they are nominal and were never acted upon. 8. The plaintiffs submit that from the year 1978, the deeds have been obtained fraudulently by the Defendants 4 to 7 in respect of items 1 and 2 of the plaint schedule properties. In any event, the Defendants 1 and 2 have no right to alienate the shares of the plaintiffs and the sale deeds executed by the Defendants 1 and 2 in favour of the Defendants 4 to 7 do not bind the shares of the plaintiffs. "dealing with this contention, the 5th defendant stated in para 6 of his written statement as under:"the present suit is filed at the instance of 1 to 3 defendants having sold different pieces of the suit properties by Defendants 1 and 2 as heads of their family to the Defendants 4 to 6 on various dates for valid consideration to meet the necessities of their family and to discharge their family debts. The false allegation s regarding the Defendants 1 and 2 are addicted to drinking and other bad ways of life are all set out to defeat the rights of purchasers-Defendants 4 to 6. It is further false to allege in para 7 of the plaint that the sales were all obtained taking under advantage of drinking habits of Defendants 1 and 2 with fraudulent intent. The transactions were all perfectly rendered, for valid considerations. The Defendants 1 and 2 are never addicted to drinking habits much less consumed drinks at any point of time. They never run with any bad ways of life. All the sale transactions in favour of Defendants 4 to 6 are true, valid and binding on plaintiffs too. "in a way, the pleadings extracted above indicated the assertion and denial as to the competence as well as necessity on the part of the Defendants 1 and 2 to undertake the disputed sales. The trial Court, however, appears to have taken the view that since the plea was not specific, an issue need not be framed in that regard. Be that as it may, in the course of trial, PW1 who is the first plaintiff pleaded as under:"our family had no debts. The Defendants 1 and 2 did not sell the suit property for family benefit. After enquiry, I came to know that those sale deeds were taken nominally while the defendants 1 and 2 were in state of intoxication. "defendant No. 3 deposing as DW1 stated as under:"it is not true to suggest that D1 and D2 sold the lands for the maintenance of the family. "on his part, Defendant No. 5 as DW2 stated as under:"d1 and D2 sold the properties to me to meet the marriage expenses of the children of D1 and D2 and to meet the family debts and for family expenses. "in cross-examination, it was stated:"it is not true to suggest that D1 and D2 did not sell the properties to me for their family expenses. There was no marriage function performed in the house of plaintiffs and D1 to D3 from 1976 to 1982. It is not true to suggest that sale consideration was utilized for any marriage expenses by D1 and D2. There was no marriage function performed in the house of plaintiffs and D1 to D3 from 1976 to 1982. It is not true to suggest that sale consideration was utilized for any marriage expenses by D1 and D2. " ( 11 ) THE above excerpts of the evidence of the witnesses clearly establish that both the parties have adduced evidence on the question of legality or otherwise of the necessity of the family for alienation of the suit schedule properties. It is well settled principle of law that even where no issue is framed, but the parties lead evidence on certain aspects, the trial Court is under obligation to deal with the same in its proper perspective. Once evidence was there before the Court, it is expected to deal with the same. A reading of the judgment of the trial Court indicates that it did not deal with this aspect of the matter. In a suit for partition, the said question assumes greater importance and the rights of the parties have to be decided with reference to that. Since serious consequences flow from the outcome of the discussion, it was expected of the trial Court to frame an issue. ( 12 ) THE trial Court has taken the view that since the plaintiffs have made an attempt to amend the plaint to incorporate the said plea and the same was dismissed on earlier occasion, the plaintiffs were not entitled to take any such plea at the stage of trial or hearing. In the process, the trial Court had virtually ignored the evidence that was before it. It is not as if there was any other items of property so that equities could have been worked out to protect the interests of the alienees. ( 13 ) SRI T. Veerabhadrayya, the learned Counsel for the appellants placed reliance upon the judgment of the Supreme Court in Vishwambhar v. Laxminarayana, 2001 (4) ICC 640, in support of his contention that unless there was any specific plea and prayer for setting aside the disputed sale deeds, the plaintiffs cannot be permitted to challenge the sales effected in favour of Defendant No. 5. The subject-matter of the case before the Supreme Court relates to the alienations made in contravention of Section 8 (2) of Hindu Minority and Guardianship Act, 1956. The subject-matter of the case before the Supreme Court relates to the alienations made in contravention of Section 8 (2) of Hindu Minority and Guardianship Act, 1956. The Honourable Supreme Court took the view that the sales made in contravention of that provision are not void ab initio but are only voidable. Wherever the sales are voidable, necessary proceedings are to be initiated within the period stipulated by the Limitation Act. Since it was found, as a matter of fact, that the challenge to the sales, which were admittedly effected in contravention of Section 8 (2), was made after the expiry of the limitation, the plaintiffs therein were refused the relief. The facts in the present case are totally different. The suit in the present case is one for partition. It is well settled principle of law that whenever certain properties are found to have been alienated by the Kartha or the Manager of the family and the coparceners intend to challenge the same as being not for family necessity, it is not necessary to come forward with a specific prayer to set aside the sales. ( 14 ) HAVING regard to the facts and circumstances of the case, I am of the view that the judgment and decree of the trial Court cannot be sustained since the most relevant issue was not addressed by it. In that view of the matter, the same is set aside. The matter is remitted to the trial Court for fresh consideration. In addition to the issues that are already framed by it, the trial Court shall also decide the following issue:"whether the alienations effected by Defendants 1 and 2 were for the family necessity. " ( 15 ) BOTH the parties shall be at liberty to adduce such evidence as they wish in support of their respective claims. The parties shall appear before the trial Court on 18-3-2002. ( 16 ) THE appeal is accordingly allowed and the matter is remitted to the trial Court for fresh adjudication as indicated above. Each party shall bear its own costs.