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2004 DIGILAW 1675 (MAD)

Pandiarajan v. Korangi Thyagarajan

2004-12-08

K.GOVINDARAJAN, M.THANIKACHALAM

body2004
Judgment :- K. GOVINDARAJAN, J. 1. This appeal is preferred by the plaintiffs who failed in their attempt to get a decree before the trial court and before the learned Single Judge. 2. The plaintiffs in O.S. No. 7/1979, on the file of the learned Sub-Judge, Namakkal, who are the children of one Srinivasan, the 1st defendant, born through his 1st and 2nd wives, filed the said suit for partition of the ‘C’ Schedule properties, saying that the alienations made by the father with reference to ‘B’ Schedule properties in favour of defendants 2 to 23 and 28, do not bind the plaintiffs. It is relevant to mention that even on an earlier occasion, a suit in O.S. No. 58/1956 was filed on behalf of the minors through their respective mothers for partition, which was dismissed for default. 3. Defendants 2 to 23 and 28 contested the suit contending inter alia that the sale deeds executed in their favour are valid in law as the same had been executed by Kartha along with minors. 4. The trial court decreed the suit for partition declaring half share in the northern portion in item No. 6 in ‘C’ Schedule properties, 2/3rd share in item Nos. 11 to 15 of the ‘C’ Schedule properties and 4/5th share in item Nos. 17 to 22 in ‘C’ Schedule properties. The trial court found that the sale deeds executed under Exs.B60, B85, B62 and B42 are valid only in respect of 1st defendants share and not valid and binding the plaintiffs. On that basis, the trial court decreed 2/3rd share in favour of the plaintiffs in respect of the ‘C’ Schedule properties, which are item Nos. 11 and 13 to 15. Aggrieved against the same, defendants 15, 16, 19 and 61 to 65 preferred appeal in A.S. Nos. 236/1984. Defendants 61 to 65 are the Legal Representatives of 21st defendant. 35th defendant who is the Legal Representative of the 20th defendant, preferred another appeal in A.S. No. 437/1984. The 36th defendant, who is another Legal Representative of the 20th defendant, preferred another appeal in A.S. No. 611/1985. The learned Judge in the common judgment, and decree dated 21.9.2001, allowed the appeals by setting aside the judgment and decree of the trial court in so far as they relate to the sale deeds, namely, Exs.B60, B85, B62 and B42 which are the subject matter in the appeals. The learned Judge in the common judgment, and decree dated 21.9.2001, allowed the appeals by setting aside the judgment and decree of the trial court in so far as they relate to the sale deeds, namely, Exs.B60, B85, B62 and B42 which are the subject matter in the appeals. Aggrieved against the same, the appellants/plaintiffs have preferred this appeal. 5. Learned Senior Counsel appearing for the appellants/plaintiffs submitted that in the sale deeds which are the subject matter in the appeals, though the 1st defendant also has been shown as one of the vendors, the minors who have also been shown as vendors, they have not been represented by natural guardian, namely, the 1st defendant, but by the maternal grandfather, thereby the said sale deeds do not bind the minors and, if at all, the purchasers can claim right only in the share of the 1st defendant. Learned Senior Counsel, in support of his submission, relied on a number of decisions. 6. Learned counsel for the contesting respondents submitted that when law permits the Kartha, to sell the Hindu joint family properties for the benefit of the family, it binds the minors also. Merely because the minors were shown in the sale deeds as vendors, represented by their maternal grandfather, it cannot be said that the sale deeds cannot be put against the interest and rights of the minors in the said properties. He also relied on certain decisions in support of his submission. 7. From the above, the only question that arises for determination in this case is:— “Can the appellants/plaintiffs ignore the sale deeds only on the ground that the minors have not been represented by the Kartha while executing the sale deeds?” 8. We are not concerned with the other items of the Schedule mentioned properties. In this case, we are now concerned only with respect to item Nos. 11 and 13 to 15, which were sold under Exs.B60, B85, B62 and B42. In all these sale deeds, the 1st defendant also was shown as 1st vendor. The mother of the 1st defendant has been shown as 2nd vendor. The minors have been shown as other vendors, but they were not represented by their maternal grandfather. 11 and 13 to 15, which were sold under Exs.B60, B85, B62 and B42. In all these sale deeds, the 1st defendant also was shown as 1st vendor. The mother of the 1st defendant has been shown as 2nd vendor. The minors have been shown as other vendors, but they were not represented by their maternal grandfather. To sustain their case as stated in the plaint that the sale deeds do not bind the minors as they were not represented by the natural guardian, learned Senior Counsel appearing for the appellants submitted that if the 1st defendant alone, as Kartha of the Hindu joint family had effected the sale, it binds the minors. But the minors having been shown as vendors, but not represented by natural guardian, and so the minors can ignore the sale deeds. 9. In support of his submission, learned Senior Counsel relied on the decision in Narayana Ayyar v. Venkataramana Ayyar , Vol. XXV ILR 1902-220 Madras, the Full Bench judgment of this Court. The said decision relates to the debt. In that case, the debt was not only created by the Kartha, but also the minor members of the family. Subsequently, only the Kartha acknowledged it. On that basis, a defence was raised stating that the acknowledgment made by Kartha cannot be relied on to say that the minors also made acknowledgment. While considering the said issue, the Full Bench found that the acknowledgment was made only by Kartha and so the same cannot be relied on against the minors interest. From the above, it is clear that the debt was created both by Kartha and minors. Only on that basis, the learned Judges held that the acknowledgment was not made by all the debtors and so the acknowledgment made only by the Kartha cannot be relied on against the interest of the minors. The said decision cannot be made applicable to the facts of the present case. 10. The decision in Govindaraju Padayachi. P., and another v. V.V.O. Malavaraya Nayanar & others, 1997 3 L.W. 586, was also pressed into service in support of the submission made by the learned Senior Counsel appearing for the appellants. In the said case, the learned Judge dealt with the scope of two sale deeds in which the minor who was also a vendor, was represented by the maternal uncle, that is, the 1st defendants brother. In the said case, the learned Judge dealt with the scope of two sale deeds in which the minor who was also a vendor, was represented by the maternal uncle, that is, the 1st defendants brother. The mother also was one of the vendors in the said sale deeds. While considering the rights of the minor on the basis of the said sale deeds, the learned Judge found that the sale on behalf of the minor cannot be put against the minor, as the minor has not been represented by the guardian. The said conclusion was arrived at on the basis that the mother is not Kartha of the family and the minor was not represented by the natural guardian. In the present case, the Kartha of the family who is entitled in law to sell the properties is also a party and so the principles laid down in the said decision cannot be relied on to the facts of the present case. 11. Even the decisions in Panni Lal v. Rajinder Singh , (1993) 4 SCC 38 = 1994 1 L.W. 40 and in Sri Aurobindo Society, Pondicherry v. Ramadoss Naidu , 1980 (1) M.L.J. 118 = (1980) 93 L.W. 59 , deal with the sale of the minors property and not joint family property and so we are not inclined to rely on the same to decide the issue in this case. 12. The decision in Dhanasekaran v. Manoranjithammal and 8 others , 1991 2 L.W. 635, is also with respect to the minor, the sole surviving co-parcener in the joint family and thereby he was treating the property as if it was the separate property of the minor and so it was held that the procedure under Sec. 8 of the Hindu Minority and Guardianship Act, 1956 should have been followed. So, the said decision also need not be dealt with for the purpose of the present case. 13. In the present case, as stated already, the 1st defendant/Srinivasa Pillai is also a vendor to the said sale deeds. Without showing the minors as vendors, then the said sale deeds executed by the said Srinivasa Pillai alone is valid in law. There is no dispute in this case with respect to the purpose for which the sale deeds were effected, as the sale was done for the family necessity. Without showing the minors as vendors, then the said sale deeds executed by the said Srinivasa Pillai alone is valid in law. There is no dispute in this case with respect to the purpose for which the sale deeds were effected, as the sale was done for the family necessity. So, merely because the minors have been included as co-vendors, the contention that unless they were represented by natural guardian, the above said sale deeds do not bind the minors, cannot be countenanced. Admittedly, in this case, the minors are represented by the maternal grandfather. 14. While dealing with similar transaction, the Apex Court in the decision in Radhakrishnadas v. Kaluram , AIR 1967 S.C. 574 , held as follows:— “Even where such a transaction has been entered into solely by a manager it would be deemed to be on behalf of the family and binding on it. The position is not worsened by the fact that a junior member joins in the transaction and certainly not so when the joining in by such junior member proves abortive by reason of the fact that member has no capacity to enter into the transaction because of his minority. In this connection we may make a mention of three decisions Gharib Ullah v. Khalak Singh , (1903) ILR 25 All 407 at p. 415 (PC); Kanti Chunder Goswami v. Bisheswar Goswami , (1898) ILR 25 Cal 585 (FB); Bijraj Nopani v. Pura Sundary Dasee , ILR 42 Cal 56; (AIR 1914 PC 92); each of which proceeds upon the principle that if one of the executants to a sale deed or mortgage deed has the capacity to bind the whole estate the transaction will bind the interest of all persons who have interest in that estate.” The said finding was given by the Apex Court to reject the argument that as one of the appellants was found to be a minor on the date of transaction, that transaction cannot bind his interest. During the course of the argument, it was also admitted that the sale deed had been executed by the father of the appellant who was manager of the family. One of the appellants though factually a minor, he was shown as major and not represented by guardian. While considering the said fact, the Apex Court has come to such conclusion. During the course of the argument, it was also admitted that the sale deed had been executed by the father of the appellant who was manager of the family. One of the appellants though factually a minor, he was shown as major and not represented by guardian. While considering the said fact, the Apex Court has come to such conclusion. The said decision would squarely apply to the facts of the present case to decide the issue raised in this case on the basis of the above said decision of the Apex Court. 15. While considering the case where the Kartha of the family executed the sale deeds, taking with him the two wives for themselves as guardian of the minors as supporting executors, the Apex Court in the decision in Sri Narayan Bal v. Sridhar Sutar , AIR 1996 S.C. 2371 , found that a joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property and when the minors are not having any divided interest in the joint Hindu family property, the sale by Karta, though the minors are represented by his two widows is valid in law and the said sale binds the minors. 16. In view of the above, it is clear that when the Kartha of the family executing the said sale deeds, merely because he takes the minors along with him as covendors represented by the persons other than the natural guardian, it cannot he said that the said sale deeds cannot bind the interest of the minors also, especially when the sale deeds executed by the Kartha without even impleading the minors as co-vendors bind the minors, as held in the above said decisions of the Apex Court. 17. In view of the above discussion, we do not find any reason to interfere with the judgment of the learned Single Judge, dated 29.1.2001. Accordingly, this appeal is dismissed. No costs. 18. In view of the doubt raised by the learned Senior Counsel appearing for the appellants with respect to the scope of the decree in the appeal, we are inclined to clarify the same. Accordingly, this appeal is dismissed. No costs. 18. In view of the doubt raised by the learned Senior Counsel appearing for the appellants with respect to the scope of the decree in the appeal, we are inclined to clarify the same. The judgment and decree of the learned Judge which we are confirming is only with respect to the said sale deeds in regard to the members dealt with in the sale deeds, towards item Nos. 11 and 13 to 15, namely, Exs.B60, B85, B62 and B42, and not with reference to the other items of the properties.