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2008 DIGILAW 719 (AP)

Bayya Guravamma v. Oduru Haripriya

2008-09-02

P.S.NARAYANA

body2008
JUDGMENT: Short episode: Nallareddy Haripriya and Nallareddy Rajesh, the then minors represented by their mother and next friend Nallareddy Madalasa instituted a suit O.S.No.51 of 1991 on the file of the Additional Subordinate Judge, Gudur, for partition and separate possession of the plaint schedule properties by dividing the same into three equal shares and to allot two such shares to the plaintiffs and deliver possession of the same to the plaintiffs and to grant such other appropriate reliefs. 2. The first defendant in the said suit is Nallareddy Balakrishna Reddy, the father of the then minor children, who instituted the suit. The second and third defendants Bayya Guravamma and Bayya Rama Rao are the purchasers. The said minors had attained majority and at present they are majors and declared as such and at present contesting the present appeal. 3. Before the trial court, on the strength of the respective pleadings of the parties, issues had been settled and the learned Additional Subordinate Judge, Gudur, recorded evidence of P.W.1, D.Ws.1 to 4, marked Exs.A-1 and A-2 and on appreciation of evidence available on record came to the conclusion that the plaintiffs are entitled to partition and separate possession of their 2/3rd shares and further observed that defendants 2 and 3 had purchased item No.3 for valid consideration and they are entitled for equity and further the plaintiffs are entitled for a charge over the 1/3rd share of D-1 in the remaining properties and the parties were directed to bear their own costs. 4. The first defendant in the suit is shown as third respondent in the present appeal and the third respondent died. It is needless to say that in view of the fact that the plaintiffs, who were minors on the date of institution of the suit having attained majority, had been declared as majors by order dated 27.9.2006 and the mother had been discharged as the next friend of the plaintiffs-R-1 and R-2. In view of the fact that the said Bala Krishna Reddy died during the pendency of the appeal, apart from respondents 1 and 2- plaintiffs, R-4 the wife also was brought on record as one of the legal representatives of R-3. In view of the fact that the said Bala Krishna Reddy died during the pendency of the appeal, apart from respondents 1 and 2- plaintiffs, R-4 the wife also was brought on record as one of the legal representatives of R-3. Thus, the next friend who had represented the minors while instituting the suit had been brought on record as one of the legal representatives of the deceased husband in A.S.M.P.No.1528 of 2008 apart from the children, respondents 1 and 2 who had been declared as majors already. Defendants 2 and 3 alone had preferred the present appeal. 5. Contentions of Sri M.P. Chandra Mouli: Sri M.P. Chandra Mouli, learned counsel representing the appellants- defendants 2 and 3 would maintain that here is a case where the third respondent in the appeal, the first defendant in the suit as father or kartha of the family made the alienation. The learned counsel also would maintain that in normal course the father of these minor children being the natural guardian and also being the kartha of the family is entitled to take a prudent decision relating to the alienation to be made and unless and until it is established that such alienation can be avoided by anyone of the grounds available to the minors and inasmuch as such grounds were established by clear evidence, normally such alienation made by the father or kartha of the family to be upheld, since the same would be binding on the other members of the family as well inasmuch as the kartha or the father represents the family. Absolutely, there is no evidence in this regard, except the solitary testimony of the wife of the first defendant i.e., the mother and next friend of the then minors. Further, while elaborating his submissions, the learned counsel also had drawn the attention of this Court to Section 12 of the Hindu Minority and Guardianship Act, 1956 and would maintain that the very suit filed by the mother, as next friend, cannot be maintained, since no permission as such had been obtained to institute such suit in relation to the coparcener property. The counsel also would maintain that it is not in controversy natural guardian is the father. The counsel also would maintain that it is not in controversy natural guardian is the father. When that being so, when the mother intends to institute the suit on behalf of the minor children, leave of the Court or permission of the Court would be essential and in view of the same the suit as framed itself is not maintainable. The learned counsel also had taken this Court through the evidence of P.W.1, D.Ws.1 to 4 and would maintain that the recitals in the documents, sale deeds, would clearly go to show that these alienations were made by the father only for the necessity and the benefit of the joint family and as a prudent man the father, kartha of the joint family had taken this decision and when that being so when absolutely no acceptable evidence had been placed that these sales are vitiated for any illegal or immoral purpose, making a preliminary decree for partition in relation to this item also cannot be sustained. Several of the admissions made by P.W.1 also had been pointed out. Further, the learned counsel laid emphasis on the averments made in the plaint and would maintain that no prejudice as such had been averred as having been caused to the plaintiffs by virtue of this alienation. It is not as though appellants-defendants 2 and 3 purchased this property either at a throw away price or a sum, but bona fidely purchased the property for a valuable consideration and in the averments made in the plaint also this attack had not been made. When that being so, when several other properties are available to the family and when it is the case of even P.W.1 that her husband, the first defendant in the suit, had status in the society, it is unbelievable that such husband of the next friend, the father of the then minors, would have resorted to any imprudent act. At any rate, in the absence of any acceptable evidence, granting a decree for partition as against this item also cannot be sustained. In the other items the plaintiffs may be entitled to their respective shares. The learned counsel placed strong reliance on certain decisions to substantiate his submissions. At any rate, in the absence of any acceptable evidence, granting a decree for partition as against this item also cannot be sustained. In the other items the plaintiffs may be entitled to their respective shares. The learned counsel placed strong reliance on certain decisions to substantiate his submissions. The learned counsel also contended that while working out the shares in the light of Sections 6, 8 and 30 of the Hindu Succession Act, 1956, the then minor plaintiffs would be entitled to reduce their shares only i.e., only their shares in the half share of the father and not in the rest of the half share of the adopted father of the father. 6. Contentions of Sri Srinivas Polavarapu: Per contra, Sri Srinivas Polavarapu, learned counsel representing respondents 1 and 2, the plaintiffs in the suit, had taken this Court through the averments made in the plaint and in particular had drawn the attention of this Court through the averments of the plaint made at para 6 (a) and would maintain that specific plea had been taken that the defendant had been addicted to drinking, gambling and other vices and further the collusive and fraudulent transaction also had been specifically averred. The counsel also would maintain that it may be that P.W.1 alone had been examined, but the burden to make bona fide enquiries into the legal necessity or otherwise being on the purchaser, the conduct of the purchaser to be taken into consideration. The learned counsel also laid strong emphasis on the averments made in the written statement of the first defendant and would maintain that though written statement was also filed by third defendant, it is just a reproduction of the stand taken by the first defendant. The first defendant was not examined. Though the evidence of P.W.1 alone is available, the evidence adduced on behalf of appellants-contesting defendants D.Ws.3 and 4 would support the case of the respondents-plaintiffs to establish that no portion of the sale consideration had been utilized for any family purpose whatsoever. In such a case, it may have to be taken that the father as kartha of the family had not acted as a prudent man and these alienations were not for the legal necessity of the family or for the benefit of the family. In such a case, it may have to be taken that the father as kartha of the family had not acted as a prudent man and these alienations were not for the legal necessity of the family or for the benefit of the family. Even otherwise the purchaser is expected to make bona fide enquiries before making a purchase of an item of the family property. The conduct of the third defendant would clearly go to show that absolutely there are no bona fides for the reason that a suit for injunction had been filed relating to this item showing the third defendant also as a party. Subsequent thereto, may be since the parties are well advised, the suit for partition had been instituted. It is not as though the third defendant had no knowledge of the minor children and the wife objecting to the sale. The lis was commenced by instituting a suit for injunction, subsequent thereto the present suit for partition had been instituted. After the suit for partition was instituted, during the pendency of the litigation these sale transactions were brought into existence and hence such sales are hit by the doctrine of lis pendens. Further, while elaborating his submissions the learned counsel also pointed out that even if no acceptable evidence had been placed relating to the averments of vices of the father and the mere fact that certain recitals had been made showing as though it was for the benefit of the family, by that itself cannot be said that the sales are not vitiated, unless otherwise it is shown that there was a necessity on the part of kartha or father to make alienation. The learned counsel also pointed out that to contend that the mother who is the natural guardian in priority when the father is acting adverse to the interest of the minors, to contend that such mother cannot maintain the suit, as next friend is an unsustainable contention. It is the case of the minors that the father is acting adverse to their interest and made certain attempts to alienate a valuable item of the family and despite the fact that a suit for injunction had been instituted, that too, after the institution of the present suit for partition the alienations had been made and in such circumstances it may have to be interfered with. This is just a speculative or a collusive transaction and in such circumstances the rights of the minors to be protected. The counsel also while making elaborate submissions to substantiate the propositions, placed reliance on several decisions. 7. Heard the counsel on record, perused the oral and documentary evidence available on record and the findings recorded by the trial court. 8. For the purpose of convenience the parties hereinafter would be referred to as plaintiffs and defendants as shown in O.S.No.51 of 1991 on the file of the Additional Subordinate Judge, Gudur. 9. The averments made in the plaint: It was averred in the plaint that the first defendant was the son of Nallareddy Venkata Raghava Reddy. It is also further averred that second defendant was the wife, third defendant was the son of Rangaiah. A suit for partition and separate possession of 2/3rd share in the schedule mentioned properties had been laid. It is also averred that the first defendant is the adopted son of Nallareddy Venkataraghava Reddy and the schedule mentioned properties were both his ancestral and self-acquired properties. He died in the year 1972, while his wife predeceased him in the year 1959. The said Venkataraghava Reddy and the first defendant were coparceners owning and possessing the schedule mentioned properties. After the death of Venkataraghava Reddy, the defendant became the absolute owner of all those properties by survivorship. It is also averred that the first defendant married Devareddy Madalasa and she begot both the plaintiffs through him. The plaintiffs had become coparceners with the defendant in respect of all those properties as per the provisions of Section 29-A of the Hindu Succession Act, 1956, as amended by the A.P. State and thus each of the plaintiffs and defendant No.1 was entitled to an undivided 1/3rd share in those properties as a coparcener. The first defendant had become addicted to vices like drinking and gambling and had been giving out that he would alienate the schedule mentioned properties. So, the plaintiffs filed a suit O.S.No.148 of 1990 on the file of the District Munsif, Sullurpet, for permanent injunction against the first defendant and also sought for temporary injunction. An ad-interim injunction was originally granted and the same was vacated on 08-02-1991. So, the plaintiffs filed a suit O.S.No.148 of 1990 on the file of the District Munsif, Sullurpet, for permanent injunction against the first defendant and also sought for temporary injunction. An ad-interim injunction was originally granted and the same was vacated on 08-02-1991. It is further averred that after filing of the present suit, defendant No.1 unlawfully sold away item No.3 of the schedule to defendants 2 and 3 under two registered sale deeds dated 18.3.1991. Though there was a thatched house in the said item at the time of purchase, after their purchase, defendants 2 and 3 demolished the same and falsely got recited in their sale deeds that only vacant sites were being purchased. The defendants had entered into collusive and fraudulent transactions and so they were not binding on the plaintiffs. 10. Averments made in the written statement of first defendant: Plaintiffs 1 and 2 were under the guardianship and protection of defendant No.1 and they were not residents of Ramareddy Palayam Minjur post in Ponneri Taluk of Chengai Anna District. Plaintiffs, inclusive of Smt. Madalasa the self styled guardian of the plaintiffs and defendant No.1 were the settled residents of Aravapalem village of Chittamuru Mandal in Nellore District. The first defendant and Madalasa were entitled for the amounts covered by the pronotes executed in their favour. The sale transactions covered by the sale deed dated 18.3.1991 in favour of Bayya Rama Rao and the second one dated 18.3.1991 in favour of Bayya Guravamma, wife of Rangaiah covered by document Nos.110 and 111 of Sub-Registrar office, Naidupet were not tainted transactions. Defendant No.1 was neither a drunkard nor a gambler. The plaintiffs were openly excluded the possession over item No.3 of plaint schedule property by defendant No.1. The sale consideration amount from out of item No.3 had been utilized by the plaintiffs inclusive of Madalasa and defendant No.1 for embarking on a lending career in open money market and the family thus derived immense interest benefit therefrom. The jointness of possession in respect of item No.3 is false. It is also averred that Smt. Madalasa during the lifetime of defendant No.1 cannot be the guardian of Haripriya and Rajesh. Defendant No.1 was the kartha of the joint family comprising of plaintiffs 1 and 2. The jointness of possession in respect of item No.3 is false. It is also averred that Smt. Madalasa during the lifetime of defendant No.1 cannot be the guardian of Haripriya and Rajesh. Defendant No.1 was the kartha of the joint family comprising of plaintiffs 1 and 2. Defendant No.1 sold the property to avoid encroachments at a reasonable price and kept the amount in fixed deposits, therefore, the sale need not be set aside. It is further averred that Smt. Madalasa was motivated with greed and under the guise of a suit of this type had been trying to gain money from the vendors of defendant No.1. The suit was bad for non-joinder of the vendees. The sales effected by D-1 were not liable to be disturbed to the extent of 2/3rd share, since on the demise of late Nallareddy Venkataraghava Reddy, his adopted son D-1 succeeds to the 1/2 share held by his adopted father and takes it as his self acquired property and thus enlarging his share over the plaint schedule properties to 2/3rd and plaintiffs each succeed to a more 1/6th share alone. By virtue of indemnity clause contained in the sale deed dated 18.3.1991 in favour of D-2 and D-3 by D-1, since D-1 had condoned the attempts by plaintiffs to disturb the sales, a charge over the 'A' schedule properties over the extent of Ac.9-79 cents be created to the extent of reimbursing the defendants 2 and 3 in the ultimate event of these defendants being deprived of the 1/3rd share over plaint 'B' schedule property. 11. Averments made in the written statement of third defendant:- It was averred that the contentions urged by the plaintiffs by way of amendment were hopelessly misconceived. The allegation that a thatched house situated in the site was demolished after sale was false. The demolition was prior to very sale by the vendor, but not by defendant No.3. Defendant No.3 adopted the very contentions pleaded as part of the written statement of D-1. 12. In the additional written statement filed by the third defendant it was pleaded that the contentions urged by the plaintiffs by way of amendment are hopelessly misconceived. The allegation that the thatched house was demolished after sale was false. The demolition was prior to very sale by the vendor, but not by D-3 and D-2. 13. 12. In the additional written statement filed by the third defendant it was pleaded that the contentions urged by the plaintiffs by way of amendment are hopelessly misconceived. The allegation that the thatched house was demolished after sale was false. The demolition was prior to very sale by the vendor, but not by D-3 and D-2. 13. Issues and additional issues settled by the trial court:- (1) Whether the plaintiffs are liable to pay advalorem court fee for item No.3 of plaint schedule property? (2) Whether the sales relating to item No.3 of plaint schedule property dated 18.3.1991 in favour of D-2 and d-3 are true, valid and binding on plaintiffs? (3) Whether plaintiffs are entitled for partition and separate possession of 2/3rd share in plaint schedule property? (4) Whether defendants are entitled for exemplary costs? (5) To what relief plaintiffs are entitled? Additional Issues: (1) Whether D-2 and D-3 are entitled for equity? (2) Whether D-2 and D-3 are entitled for charge over plaint 'A" schedule property? 14. Evidence available on record: For plaintiffs: P.W.1: Nallareddy Madalasa For defendants: D.W.1: Bayya Rama Rao D.W.2: Duvvuru Subrahmanyam Reddy D.W.3: J. Narayana Rao D.W.4: Oduru Chandrasekhara Reddy Documents marked: For plaintiffs: Ex.A-1: Registered copy of sale deed dated 18.3.1991 Ex.A-2: Registered copy of sale deed dated 18.3.1991 For defendants: -NIL- 15. Findings recorded by the trial court in nut-shell: The learned Additional Subordinate Judge, Gudur, on the strength of the respective pleadings of the parties having settled the issues, recorded the evidence of P.W.1, marked Exs.A-1 and A-2 and also recorded the evidence of D.Ws.1 to 4 and while answering issue No.1 came to the conclusion that the plaintiffs need not pay advalorem court fee, since they are in joint possession on the date of filing of the suit. While answering issue No.2 whether the sales relating to item No.3 of the plaint schedule property, dated 18.3.1991, in favour of D-2 and D-3 are true, valid and binding on the plaintiffs, came to the conclusion that Exs.A-1 and A-2 are true, valid and binding only on the first defendant and they were executed subsequent to the filing of the suit and they are not binding on the plaintiffs. While answering issue No.3 the learned Judge referred to Sections 29-A, 8 and 6 of the Hindu Succession Act and ultimately came to the conclusion that the plaintiffs are entitled for partition and separate possession of their 2/3rd share in the plaint schedule properties. The learned Judge also while answering additional issue No.1 held that D-2 and D-3 are entitled for equity. While answering additional issue No.2 the learned Judge, after recording reasons, held the said issue in favour of D-2 and D-3 and against D-1. 16. In the result, the suit was decreed declaring that the plaintiffs and D-1 were each entitled to 1/3rd share in the plaint schedule properties and the plaintiffs were further entitled for division of plaint schedule properties and separate possession of their 2/3rd share. Defendants 2 and 3 had purchased item No.3 for valid consideration, so, at the time of partition they are entitled for equity. Further, they are entitled for charge over 1/3rd share of D-1 in the remaining properties. In the special circumstances, the parties to bear their own costs. 17. Points for consideration: (1) Whether the findings recorded by the trial court granting partition in item No.3 also be sustained in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled to? 18. Point No.1: The respective pleadings of the parties, the issues and additional issues settled, the evidence available on record and the findings recorded by the trial court in substance already had been referred to supra. 19. The first defendant-father shown as respondent No.3 in this appeal is no more. It is needless to say that by virtue of the death of the father, the children who had been declared as majors, the first and second respondents and also fourth respondent, the wife, who was also brought on record would the legal representatives of the said Bala Krishna Reddy and, hence, it is needless to say that not only item No.3, there are certain other family properties as well and in the light of the subsequent events, the shares automatically would change. Appellants-defendants 2 and 3 are interested only in one item, item No.3, and they are challenging the findings recorded by the trial court relating to the said item. 20. Ex.A-1 is the registered copy of sale deed dated 18.3.1991. Appellants-defendants 2 and 3 are interested only in one item, item No.3, and they are challenging the findings recorded by the trial court relating to the said item. 20. Ex.A-1 is the registered copy of sale deed dated 18.3.1991. Ex.A-2 also is the registered copy of sale deed dated 18.3.1991. Certain submissions were made that inasmuch as the adopted father Venkata Raghava Reddy would be entitled to half share and the first defendant-father of these minor children would be entitled to half only by virtue of notional partition and in the said half share the minors may be entitled to their respective shares in all the items of the property inclusive of item No.3. Strong reliance was placed on the decision of the Apex Court in Sheela Devi and others V. Lal Chand and another1. 21. It is pertinent to note that the said Bala Krishna Reddy is no more. It is also pertinent to note that these appellants-defendants 2 and 3 being the purchasers are interested in only one item. They are not interested in the other items. It is also needless to say that being the heirs the estate left over by Bala Krishna Reddy would devolve on the first and second respondents, the then minors, who are declared as majors, the children and Madalasa- Respondent-4 who was brought on record. 22. Be that as it may, the question, which had been argued in elaboration by the counsel representing the parties, is in relation to the validity of the alienations made by the father regarding item No.3 of the plaint schedule property. Fourth respondent herein, who was the then next friend of the minors, was examined as P.W.1. No doubt, she deposed that D-1 had no necessity to sell item Nos.2 and 3 of the plaint schedule property (Evidently it appears to be a mistake and it is only item No.3). This witness also deposed that she filed a suit for permanent injunction O.S.No.148 of 1990 on the file of the District Munsif, Sullurpet, against her husband, Jayarami Reddy, Dasaradhaami Reddy, Gopal Reddy and Byana Rama Rao and she had also explained under what circumstances she was constrained to institute yet another suit, the present suit for partition and she denied certain suggestions to the effect that her father was responsible for the present litigation. No doubt this witness deposed that her husband never fell down after drinking in the public and except her word there is no other proof to show that her husband was addicted to drinking and gambling. Her husband is meeting expenses for the education of her son and her father is spending for education of her daughter. The first defendant had not entered into the witness box though written statement in elaboration had been filed. 23. The third defendant was examined as D.W.1. No doubt D.W.1 deposed that P.W.1 attributed vices to husband only for the purpose of litigation and this witness had taken a stand that after filing the suit when he met D-1, he told them that he got the suit filed and refused to come to the court to give evidence. How far, this stand to be believed, especially in the light of the written statement filed by the first defendant, this matter which may have to be gone into. This witness also deposed that the first defendant is the manager of the joint family consisting of him, the plaintiffs and D-1 sold the site as manager of the joint family. 24. On a perusal of these documents in favour of the appellants-D2 and D3 even in the recitals no where it had been recited that the father is representing the minors, but however, certain recitals had been pointed out by the counsel representing respective parties which may go to show that these transactions are for the benefit of the family. The twin reasons which had been recorded is that there is likelihood of encroachment and the family may not be able to enjoy the property and yet other averment is that the sales are being effected for the purpose of purchasing tractor etc. This witness also deposed that he had got agreement of sale executed by D-1 with him and he does not remember the date and he does not remember whether D-1 executed separate agreements of sale, one in favour of this witness and another in favour of D-2 or only one agreement had been executed. He can produce the agreement into court. This witness also deposed that P.W.1 filed the suit O.S.No.148 of 1990 against D-1, this witness and brother of D-1 and obtained injunction and the said suit was dismissed as not maintainable. He can produce the agreement into court. This witness also deposed that P.W.1 filed the suit O.S.No.148 of 1990 against D-1, this witness and brother of D-1 and obtained injunction and the said suit was dismissed as not maintainable. No doubt this witness deposed that it is not true to suggest that D-1 was not manager of the joint family, as he was addicted to vices, he was not looking after the family. 25. The second witness deposed that the vacant site was lying fallow since several years and D-1 never leased out item No.3 of the plaint schedule to anyone and the site was not being used and wild growth was there in that site. Some of the residents near the site were using the site as easing ground. The site had no value in 1991. D-1 sold the site as it was lying waste. May be this witness was examined to say that D.W.1 entered this transaction bona fidely and the property was not useful to the family. 26. The third witness the Deputy Manager in State Bank of India, Naidupet, deposed that D-1 deposited a sum of Rs.1.00 lakh in the name of first plaintiff on 18.3.1991 and the maturity date was 18.3.1994. D-1 deposited on the same day Rs.1.00 lakh in the name of second plaintiff as guardian. The maturity date was 18.3.1994. On 02-01-1992 D-1 availed a loan of Rs.80,000/- over the fixed deposit. On 05.8.1994 D-1 had withdrawn the balance of Rs.20,000/- and interest accrued on the fixed deposit. The loan amount of Rs.80,000/- was adjusted towards fixed deposit. The amount deposited in the name of first plaintiff was withdrawn on 08.4.1992 by D-1. 27. The fourth witness was examined and this D.W.4 deposed that he knows D-1 and P.W.1 and he borrowed Rs.40,000/- and another Rs.40,000/- from P.W.1 and D-1 through D-1 in 1992 under two promissory notes. Those promissory notes were executed one in the name of P.W.1 and another in the name of D-1 and subsequently he had discharged those two debts. Once or twice P.W.1 came to his house and asked him to repay the loan. This witness also was cross-examined. The recitals made in Exs.A-1 and A-2 being self-explanatory, the same need not be repeated again. 28. Once or twice P.W.1 came to his house and asked him to repay the loan. This witness also was cross-examined. The recitals made in Exs.A-1 and A-2 being self-explanatory, the same need not be repeated again. 28. As already referred to supra, the counsel representing the parties made certain submissions relating to Sections 6, 8, 30 of the Hindu Succession Act, 1956, and Section 12 of the Hindu Minority and Guardianship Act, 1956, as well. 29. In Kona Adinarayana V. Dronavalli Venkata Subbayya and another2 the learned Judge of the Madras High Court while dealing with joint family-kartha, contract of sale signed by kartha for himself and separately as representing minor, observed as hereunder: "The eldest brother of a joint Hindu family as karta entered into a contract of sale of an item of joint family property wherein he signed it for himself and as representing the minor brother. The second brother also signed the contract by way of concurrence in the sale. In a suit for specific performance of the contract by the brothers, it was contended by the vendees that the contract could not be said to have been entered into on behalf of the family and all the members of the family were not parties as the minor was separately represented by the karta: Held: that karta alone could represent the minor member. In fact, he alone could represent by himself the entire family. Therefore the karta must be deemed to have represented the entire family and the other brother signed only by way of concurrence." 30. In Raja Sagi Padmanbharaju V. Sagi Lakshmi Kumara Raju and others3 while dealing with Section 53-A of the Transfer of Property Act, it was observed that the words 'by a writing signed by him or on his behalf' joint family consisting of father and his minor sons, father as manager of joint family, executing contract of sale of property, sale ex hypothesi for benefit of family, transferee paying consideration and father putting him in possession of property, transferee, under Section 53-A, of the T.P. Act resist claim of son for possession of property because, under Hindu Law, father can be said to have executed contract on behalf of sons also. AIR 1959 Andhra Pradesh 534, overruled in view of AIR 1948 PC 95; AIR 1948 Madras 526. 31. AIR 1959 Andhra Pradesh 534, overruled in view of AIR 1948 PC 95; AIR 1948 Madras 526. 31. In Amrit Sagar Gupta and others V. Sudesh Behari Lal and others4 the Apex Court at paras 6 and 7 observed as hereunder. "It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family see Lalchand v. Sheogobind, ILR 8 Pat 788 = (AIR 1929 Pat 741); Ram Kishan v. Ganga Ram, ILR 12 Lah 428 = (AIR 1931 Lah 559); Pirthipal Singh v. Rameshwar, ILR 2 Luck 288 = (AIR 1927 Oudh 27); Surendranath v. Sambhunath ILR 55 Cal 210 = (AIR 1927 Cal 870). The suit by or against the manager will be deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa, ILR (1941) Bom 682 = (AIR 1941 Bom 385). See also Venkatanarayana v. Somaraju, AIR 1937 Mad 610 (FB). It is not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A karta can represent the family effectively in a proceeding though he is not named as such, see Mani Sahoo v. Lokanath Mishra, AIR 1950 Ori 140 ." 32. Further reliance also was placed on the decision in Bijoy Kumar Karnani v. Lahori Ram Prasher5 wherein the learned Judge of Calcutta High Court relied on AIR 1940 Bombay 164 (Zujya Pascol Damel v. Manmohandas Lallubhai Pratap) and AIR 1970 SC 5 (Amrit Sagar Gupta v. Sudesh Behari Lal). 33. Strong reliance was placed on the decision of this Court in Vempati Anasuyamma (died) by LRs. And others V. Gouru Venkateswarloo and others6. 34. 33. Strong reliance was placed on the decision of this Court in Vempati Anasuyamma (died) by LRs. And others V. Gouru Venkateswarloo and others6. 34. Further Sri Srinivas the learned counsel also placed strong reliance on the decision in K. Adivi Naidu and others V. E. Duruvasulu Naidu and others7 wherein at para 5 the Apex Court observed at para 5 as hereunder. "Having considered the respective contentions, we are of the view that since the preliminary decree was allowed to become final, the trial court needs to give effect to it. It is settled law that alienees of the alienees have no right to equities. Equally, it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other coparceners. Since the specific properties were purchased prior to the institution of the suit for partition, though the appellants have no right to equities, it could be said that the respective share to which their principal alienor was entitled would be allottable to them as a special case. However, since the preliminary decree specifically directed that the good and bad qualities of the land should be taken into consideration in effecting the partition, it should, in letter and spirit, be given effect to. While passing final decree, if the lands purchased by the appellants are found more valuable than the lands to be allotted to the respondents, the respective values thereof should be ascertained and the respondents need to be compensated in monetary value. That would be the effect of the preliminary decree as well. Considered from this perspective, the direction issued by the Division Bench would be modified as above, and the trial court would pass the final decree accordingly." 35. In Radhakrishnadas and another V. Kaluram (dead) and after him his heirs and legal representatives and others8 it was held at para 5 as hereunder. "Before us Mr. S.P. Sinha accepts the position that Rs.45,000/- out of the consideration of Rs.50,000/- was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His argument is that a sum of Rs.5,000/- or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of Rs.50,000/-. His argument is that a sum of Rs.5,000/- or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of Rs.50,000/-. This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration, which he advanced, was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is Sri Krishan Das v. Nathu Ram, ILR 49 All 149: (AIR 1927 PC 37). In that case the consideration for the alienation was Rs.3,500/-. The alienee was able to prove that there was legal necessity only to the extent of Rs.3,000/- and not for the balance. The High Court held that the alienation could be set aside upon the plaintiff's paying Rs.3,000/- to the alienee, but the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alienee has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the managements himself. This decision was followed by the Privy Council in Niamat Rai v. Din Dayal, ILR 8 Lah 597: (AIR 1927 PC 121), where at pp. 602 and 603 (of ILR Lah): (at p. 123 of AIR), it has observed: "It appears from the judgment of the learned Judges of the High Court that if they had been satisfied that the whole of the Rs.38,400/- paid out of the sale proceeds was paid in discharge of debts incurred before the negotiation of sale, they would have been of opinion that the sale ought to have been upheld. With this conclusion their Lordships agree, but they are of opinion that undue importance was attached by the learned Judges to the question whether some of the payments were made in discharge of debts incurred in the interval between the negotiation of the sale and the execution of the sale-deed. Even if there had been no joint family business, proof that the property had been sold for Rs.43,500/- to satisfy pre-existing debts to the amount of Rs.38,000/- would have been enough to support the sale without showing how the balance had been applied, as held by heir Lordships in the recent case of ILR 49 All 149: (AIR 1927 PC 37)". Both these decisions state the correct legal position. Mr. Sinha's argument must, therefore, be rejected." 36. In Smt. Rani and another V. Smt. Santa Bala Debnath and others9 the Apex Court observed at paras 10 and 11 as hereunder. "Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate, which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession." 37. In Smt. Dipo V. Wassan Singh and others10 the Apex Court observed at paras 2 and 3 as hereunder. "We do not think that the High Court was justified in dismissing the second appeal on the ground of limitation. The defect was technical, as the second appeal itself had been presented in time. It was only a copy of the trial Court's judgment that was filed after the expiry of the period of limitation. The delay in filing a copy of the trial Court's judgment should have been condoned and the second appeal should have been entertained and disposed of on merits. We are also satisfied that the learned District Judge was in error in dismissing the appeal on the ground that the appellant-plaintiff had not herself presented the memorandum of appeal. The appeal had been admitted by the District Judge earlier and there was no point in dismissing it thereafter on the ground that the memorandum of appeal had not been presented by the party herself. Rules of procedure are meant to advance he cause of justice and not to short-circuit decision on merits. We have no option, but to set aside the judgments of the District Judge and the High Court. Instead of sending the case back to the District Judge for disposal on merits, we have ourselves heard the appeal on merits. The finding that Smt. Dipo is he sister of Bua Singh is a concurrent finding and we accept it. We have no option, but to set aside the judgments of the District Judge and the High Court. Instead of sending the case back to the District Judge for disposal on merits, we have ourselves heard the appeal on merits. The finding that Smt. Dipo is he sister of Bua Singh is a concurrent finding and we accept it. We also proceed on the basis that according to the prevailing custom of the area, collaterals and not the sister are preferential heirs to ancestral property in the hands of a propositus, while the sister and not the collateral is a preferential heir in regard to non-ancestral property. We must add here that we are not quite satisfied that the custom has been properly established, but for the purposes of the present case, we proceed on the basis that the custom has been established. But that is not the end of the problem before us. No doubt the properties, which have been found by the lower Courts to be ancestral properties in the hands of Bua Singh, are properties, which originally belonged to Bua Singh's ancestors. But Bua Singh was the last male holder of the property and he had no male issue. There was no surviving member of a joint family, be it a descendant or otherwise who could take the property by survivorship. Property inherited from paternal ancestors is, of course, ancestral property as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mulla's Principles of Hindu Law (15th Edition), it is stated at page 289: "...........if A inherits property, whether movable or immovable, from his father or father's father, father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof and he can deal with it as he pleases..... ..... If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof and he can deal with it as he pleases..... ..... A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son's sons and son's son's sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property." Again at page 291, it is stated: "The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession." We are, therefore, of the view that the Lower Courts were wrong in refusing to grant a decree in favour of the plaintiff as regards property described by them as 'ancestral property'. The defendants were collaterals of Bua Singh and as regards them the property was not, ancestral property' and hence the plaintiff was the preferential heir. The plaintiff was entitled to a decree in respect of all the plaint properties. The judgments and decrees of the learned Subordinate Judge, District Judge and High Court are set aside and there will be a decree in favour of the plaintiff for all the plaint properties. The plaintiff is also entitled to get her costs throughout from the defendants. The defendants will pay the court-fee due to the Government in the suit, appeal, second appeal and the appeal to this Court. 38. In Gangadharan V. Janardhana Mallan and others11 the Apex Court while dealing with validity of the alienation made by father observed that the findings by subordinate court as to adequacy of sale consideration, substantial portion having gone into discharge of antecedent debts and enquiries made by purchaser regarding legal necessity and the suit to challenge alienation filed after long lapse is not maintainable. 39. 39. In Sengoda Goundan V. Muthuvellappa Goundan minor by next friend and maternal grandfather Palani Goundan and others12 while dealing with the concept of joint family, the alienation and benefit to family under Hindu Law it was held at para 3 as hereunder. "The learned Judge, Subba Rao J. held that the alienations falling within these four groups, that is, groups 2 to 5 could not be supported either on the ground of necessity or benefit to the family. Learned counsel for the appellant, Mr. Narayanaswami did not attempt to argue that these alienations could be supported on the ground of necessity. He confined his argument to the contention that they would be justified on the ground of benefit to the family. He developed the argument thus: The lands covered by these alienations were dry lands which were not yielding any income to the family or to use his expression, they were unproductive properties. They, however, became valuable, because of a town planning scheme which had been made by the Municipality and therefore, there was the prospect of obtaining a good price for the lands if and when sold in small plots. So it was argued that the family stood to gain by these alienations. Learned counsel relied upon the judgment of Yahya Ali J. in--- 'In re, A.T. Vasudevan', AIR 1949 Mad 260 (A), as supporting his contention that a sale by the manager of a joint family, of family lands which had not been yielding any income, for an advantageous price which could be obtained because of special circumstances would 'per se' be for he benefit of the family. We, however, do not agree that the decision of Yahya Ali J. supports this proposition. In that case, the father and manager of a Hindu joint family who had two adult sons and five minor sons applied to this court on the original side under Cl. 17 of the Letters Patent for being appointed guardian of the family property and for sanction of the sale of that property as being beneficial to the interests of the minor sons. 17 of the Letters Patent for being appointed guardian of the family property and for sanction of the sale of that property as being beneficial to the interests of the minor sons. The learned Judge found that the proposed sale was highly advantageous to the interests of the entire family, including the minors and gave his sanction subject to proper safeguards being provided for the minor's share of the purchase money, by being invested in Government securities, which should be deposited with the Registrar of the High Court. This circumstance, namely, that in giving the sanction the learned judge gave directions as to the disposal of the minor's share of the sale proceeds is not without significance, as that should not be treated separately from the order granting sanction. If so viewed, the decision is in accordance with other decisions of this Court in which, for instance, it was held that sale of unproductive family property at an advantageous price for the purpose of buying other land could be supported on the ground of benefit to the family. The instances given by Venkatasubba Rao J. in--- 'Sellappa Chettiar v. Subbanna Chettiar', AIR 1937 Mad 496 (B) are all instances where there two elements are present, namely, sale of unproductive property and investment of the proceeds in purchase of other and better productive property. In this case, it may be assumed that the sales were for an adequate price and that but for the town planning scheme these properties would have had no appreciable market value and were not fetching any income to the family. But the latter requirement is totally absent. There is no evidence, and it was not even suggested that with the proceeds of these sales other income-fetching property was purchased. There was an attempt to rely upon a purchase made by the mother, the fourth defendant (Ex.D.15) as having been made with the plaintiff's share of the purchase money. But that attempt failed as the mother herself denied that the property had been purchased for the benefit of the minors. In the absence, therefore, of any proof of utilization of the sale proceeds in the purchase of other property for the family we must hold that the alienations were not for the benefit of the family. But that attempt failed as the mother herself denied that the property had been purchased for the benefit of the minors. In the absence, therefore, of any proof of utilization of the sale proceeds in the purchase of other property for the family we must hold that the alienations were not for the benefit of the family. In this view, it is immaterial whether the plaintiff's share of the consideration was received by the mother in any of these transactions or whether the plaintiff's share was retained by the respective vendees. We agree with Subba Rao J. that the alienations were not for the benefit of the family and therefore were not binding on the plaintiff." 40. On a careful analysis of the evidence available on record, the following essentials emerged. (1) The fact that the wife instituted a suit for injunction impleading one of the appellants, the third defendant also is not in controversy. (2) The fact that the alienations were made by the father in favour of D-2 and D-3 after the institution of the suit for partition also is not in controversy. It may be that may be it was not within the knowledge of the purchaser relating to the institution of suit for partition for want of service of summons or otherwise. (3) The admissions made by P.W.1 that D-1 was looking after the education of one child is not in controversy. (4) Though the litigation was being fought it is not clear whether the first defendant had been sailing with the contesting defendants the other defendants or he was instrumental for the institution of the suit. It is however pertinent to note that an elaborate written statement was filed by the first defendant justifying his action i.e., the alienation. (5) The fact that the sale consideration as such had been realized by the father parting the amount by way of promissory notes, one in his name, another in the name of the wife, may be within the knowledge of the wife or without the knowledge of wife, this aspect also not in controversy. (6) Though specific averments were made relating to the vices, the father, the first defendant, except one or two stray sentences in the evidence of P.W.1, there is no other acceptable evidence placed on record. (7) The evidence on record shows the amicable living of wife and husband despite this litigation. (6) Though specific averments were made relating to the vices, the father, the first defendant, except one or two stray sentences in the evidence of P.W.1, there is no other acceptable evidence placed on record. (7) The evidence on record shows the amicable living of wife and husband despite this litigation. (8) It is also not in serious dispute that the first defendant belonged to a respectable family commanding some respect in the locality. 41. In the light of the said facts and circumstances whether the evidence available on record is sufficient to establish or substantiate the respective stands taken by the parties. Though certain averments had been made in the plaint relating to the vices of the first defendant, may be, with a view to avoid the alienations made by the father and, that too, when several other items are available for the family, apart from the evidence of the next friend-wife i.e., the mother of the minor children, other acceptable evidence should have been thought of. No doubt Sri Srinivas Polavarapu contends that the evidence of D.Ws.3 and 4 would come to the aid of P.W.1. This Court is not inclined to accept the said contention. 42. In a case of this nature where the minors are challenging the alienations on certain grounds, acceptable evidence to be placed. It is also pertinent to note that at present the minors had attained majority and it is for them to elect whether to further proceed with the litigation. It is also pertinent to note that it is a general suit for partition and these purchasers-alienees are fighting the litigation for item No.3 and item No.3 alone. 43. In the light of the facts and circumstances inasmuch as elaborate submissions were made by both Sri M.P. Chandra Mouli, representing the appellants and Sri Srinivas Polavarapu, representing the contesting respondents this Court is of the opinion that this is a fit matter where an order of remand to be made. 44. To what relief: In the light of the findings recorded supra, the decree and judgment are hereby set aside and the matter is remanded to the trial court. 44. To what relief: In the light of the findings recorded supra, the decree and judgment are hereby set aside and the matter is remanded to the trial court. It is also made clear that the plaintiffs who had attained majority are entitled to suitably amend the pleadings, equally the appellants, the contesting defendants also are entitled to amend their pleadings, if necessary, to settle additional issues and permit both the parties to let in further evidence on all the aspects and decide the matter afresh in accordance with law. 45. The appeal is accordingly allowed to the extent indicated above. No order as to costs. A request is made by Sri Srinivas Polavarapu, since an order of remand is being made and inasmuch as the matter is a very old one, let appropriate directions be issued. In the light of the same, let the learned Judge expedite and dispose of the suit as early as possible, preferably within a period of six months, from the date of receipt of a copy of this Judgment.