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2009 DIGILAW 30 (ORI)

HAREKRUSHNA MAHAKUD v. RADHANATH MAHAKUD

2009-01-12

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. - The unsuccessful Defendant No. 1 in both the Courts below is the Appellant. This appeal is directed against the Judgment and decree dated 11.5.1989 passed by the then District Judge, Phulbani in Title Appeal No. 5 of 1987 dismissing the appeal and confirming the Judgment and decree dated 28.1.1987 passed by the then Additional Subordinate Judge, Phulbani in T.S. No. 27 of 1984. 2. The suit was one for declaration of title as well as for recovery of possession of the lands more fully described in the plaint schedule. Bereft of unnecessary details, the facts necessary for appreciating the inter se disputes, are as follows: One Dukhu Mahakud was the admitted owner in possession of the disputed lands. He died in the year 1976 leaving behind his widow Bila Bewa (Respondent No. 3), and the two sons, namely, Harekrushna Mahakud (Respondent No. 1) and Panchanan (Respondent No. 2). Respondent No. 2 after the death of his father Dukhu claiming to be the 'Karta' of the family and as guardian of the Appellant, who was minor at the relevant time, sold the disputed properties by registered sale deed dated 1st February, 1977 for a consideration of Rs. 1,000 to the present Appellant. It further appears that as there was mistake in the Khata number, and the same was rectified by another registered deed dated 12th May, 1978. According to the Appellant, by virtue of the aforesaid deeds, he became the absolute owner and possessed the lands without any disturbance from any quarter. Respondent No. 1 in the year 1984 filed Title Suit No. 27 of 1984 (as Plaintiff) in the Court of the then Subordinate Judge, Phulbani for declaration that the registered sale deed dated 1st February, 1977 and the deed of rectification dated 12.5.1978 are void and are not binding upon him and for declaration of his right, title and interest as well as for recovery of possession, mainly on the ground that he was not a minor on the date when the sale deed was executed and that there was no legal necessity for the family to sell the suit property, which is the ancestral joint family property. 3. 3. After receiving notice, the present Appellant, who was the Defendant No. 1 in the Court below, filed his written statement denying the plaint allegation and taking a positive stand that Dukhu Mahakud, the original owner had incurred loan during his life time and the property was mortgaged by means of an unregistered deed. After the death of Dukhu, Respondent No. 2, who was Defendant No. 2 before the Court below, being the eldest male member and 'Karta' of the family sold the suit lands to incur the 'Sudhi' expenses of his father and also to redeem the mortgage. It is further averred that the lands have been mutated in his favour and that the suit is otherwise barred by limitation as the same was filed much after three years from the date of execution of the sale deed. Defendant No. 2 (Respondent No. 2) filed separate written statement denying the plaint allegation and supporting the case of Defendant No. 1. The widow Defendant No. 3 neither filed any written statement nor contested the suit. 4. On the basis of the pleadings, the Trial Court framed six issues. In order to substantiate his case, the Plaintiff got examined three witnesses and exhibited five documents. Defendant No. 1 got examined five witnesses and exhibited as many as seven documents. After discussing the evidence both oral and documentary in extenso, the Trial Court came to the conclusion that the Plaintiff was in fact a minor on 1st February, 1977 when Defendant No. 2 executed the registered sale deed alienating the disputed properties in favour of Defendant No. 1 and that Defendant No. 2 being the eldest son was looking after the properties and was the 'Karta' of the joint family after the death of Dukhu and that the suit property was the joint family property of the family and all the co- sharers have a right over the same. It was however held that there was no legal necessity to alienate the suit land and as such, the sale deed executed by Defendant No. 2 alone in favour of Defendant No. 1 was invalid and was not binding on the Plaintiff. The Trial Court also held that the suit was not barred by time. It was however held that there was no legal necessity to alienate the suit land and as such, the sale deed executed by Defendant No. 2 alone in favour of Defendant No. 1 was invalid and was not binding on the Plaintiff. The Trial Court also held that the suit was not barred by time. On the basis of such conclusion, the Trial Court decreed the suit, set aside the sale deed as well as the deed of rectification, declared the right, title of the Plaintiff to the extent of his joint interest in the suit property and directed the Defendant No. 1 to make over possession of the entire suit land to the family of the Plaintiff. 5. The Appellate Court confirmed the finding of the Trial Court to the effect that the Plaintiff was a minor on the date when Defendant No. 2 executed the registered sale deed in favour of Defendant No. I describing himself to be the 'Karta' and guardian of the Plaintiff. After discussing the evidence, the Appellate Court also confirmed the finding of the Trial Court that there was absolutely no legal necessity for alienating the entire joint family properties by Defendant No. 2 in favour of Defendant No. 1. So far as the limitation is concerned, the Appellate Court also confirmed the finding and held that the suit was filed within time. On the basis of such conclusion, the Appellate Court confirmed the Judgment and decree passed by the Trial Court and dismissed the appeal. 6. The present Second Appeal has been admitted on the sole point of law, i.e. as to whether the sale having been held to be valid so far as the transferor is concerned, the Appellant was entitled to possess the property jointly with non-transferring co-sharers as per the provisions contained in Section 44 of the Transfer of Property Act. 7. Mr. Mohanty, Learned Counsel appearing for the Appellant virtually confined his argument only to one point, i.e., the sale so far as it relates to the share of Defendant No. 2, ought to be held as valid and the Courts below acted illegally in setting aside the sale deed in its entirety. In other words, Mr. Mohanty did not assail the finding of fact that the Plaintiff and Defendant Nos. In other words, Mr. Mohanty did not assail the finding of fact that the Plaintiff and Defendant Nos. 2 and 3 being the legal heirs and successors of Late Dukhu Mahamud had interest in the suit plot as the same was ancestral joint family property. 8. Law is no more res Integra that every member of the family has a right over every inch of the joint family property. Admittedly, Defendant No. 2 alone had executed the sale deed in favour of Defendant No. 1 alienating the entire property claiming to be the 'Karta' of the joint family. Law is also well settled that a single member cannot alienate the joint family property without consent of the other co-sharers. Even the manager of the joint family has. limited power to alienate the joint family properties and cannot do so at his sweet will. In other words, the manager or 'Karta' of the joint family can only alienate the joint family property when there is pressing legal necessity in the family and when the sale would be beneficial to the estate. The burden of proving legal necessity lies upon the alienee. The alienee can succeed only if he can prove by adducing cogent evidence that legal necessity existed and after reasonable enquiry he was satisfied with regard to the existence of such necessity and also with regard to the fact that the sale was for the benefit of the estate. Even the recitals made in the sale deed with regard to the legal necessity in the family are not sufficient to prove legal necessity. (See Keluni Dei Vs. Kanhei Sahu and Others, ). The duty of making an enquiry as to existence of legal necessity, as stated above, is duty cast by the law upon the transferee. It is for him to allege and prove the circumstance justifying alienation. Where an alienee is unable to establish that the alienation was justified by necessity, he must prove that he did all that was reasonable to satisfy himself of the existence of such necessity. 9. It is for him to allege and prove the circumstance justifying alienation. Where an alienee is unable to establish that the alienation was justified by necessity, he must prove that he did all that was reasonable to satisfy himself of the existence of such necessity. 9. Keeping in view the aforesaid legal position and considering the concurrent findings of both the Trial Court and the lower Appellate Court, oh authentic evidence-both oral and documentary which this Court need not repeat in this Judgment, this Court is of the opinion that the Courts below were right in their finding that the Defendants have totally failed to establish that there was any bona fide necessity to alienate the joint family suit properties. 10. Mr. Mohanty, Learned Counsel for the Appellant in course of hearing of this appeal did not assail the findings of the Courts below in respect of lack of legal necessity, but contended that in view of the conclusions arrived at that the Plaintiff is entitled to a share in the property and so also Defendant No. 2, should have decreed the Plaintiff's suit by granting him relief of partition in respect of his share only, thereby confirming the sale deed so far as the share of Defendant No. 2. 11. There is no dispute with regard to the fact that the properties alienated by Defendant No. 2 in favour of Defendant No. 1 were joint family ancestral properties. It is also fairly conceded by Mr. Mohanty as well as Learned Counsel for Plaintiff-Respondent No. 1 that all the three Respondents being the legal heirs and successors of Dukhu Mahakud have a share in the joint family property. The Courts below have rightly arrived at the conclusion that alienation made by Defendant No. 2 being bereft of legal necessity, the same cannot be sustained. But then, the question of legal necessity would arise only when a Co-sharers or Karta alienates the joint family properties without the consent of other members of the family. Further, if a member of the joint family alienates his own share of the joint family property, the question of legal necessity so far as his share is concerned, shall not arise unless he raises a dispute. A cumulative assessment of the evidence reveals that Defendant No. 1 purchased the lands bonafide way back in the year 1977. Further, if a member of the joint family alienates his own share of the joint family property, the question of legal necessity so far as his share is concerned, shall not arise unless he raises a dispute. A cumulative assessment of the evidence reveals that Defendant No. 1 purchased the lands bonafide way back in the year 1977. He is in possession of the entire lands for the last 31 years. He being an outside purchaser, it is open for him to file a suit for partition and claim title over the lands from out of the share of his vendor. Section 44 of the Transfer of Property Act deals with alienation of immovable properties made by a co-sharer to an outsider. In such eventualities, a transferee acquires such share or interest of his vendor and also acquire a right to joint possession of dwelling house. For the sake of brevity, Section 44 of the Transfer of Property Act is quoted here-in-below. 44. Transfer by one co-owner- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give effect to the transfer the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this Section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. 12. From the aforesaid provision, it is clear that when a co-sharer transfers a joint family property, the purchaser of such property can enforce a right to partition. In the case in hand, admittedly, Dukhu Mahakud was the absolute owner of the property. He left behind his widow (Defendant No. 3) and two sons being the Plaintiff and Defendant No. 2. Defendant No. 2 had alienated the entire properties in the year 1977 claiming himself to be the 'Karta'. The plea I that there was legal necessity for such alienation has been negatived. He left behind his widow (Defendant No. 3) and two sons being the Plaintiff and Defendant No. 2. Defendant No. 2 had alienated the entire properties in the year 1977 claiming himself to be the 'Karta'. The plea I that there was legal necessity for such alienation has been negatived. In such eventualities, the sale so far as the share of the Plaintiff and Defendant No. 3 is concerned becomes ab initio void. But then, Defendant No. 2 having executed the sale deed and as he is not disputing lack of legal necessity, the sale deed so far as it relates to the share of the said Defendant, remains valid and in consonance with Section 44 of the Transfer of Property Act, Defendant No. 1, the purchaser of the property from Defendant No. 2, has a right to enforce partition and allotment of the lands, which would have fallen to the share of his vendor, Defendant No. 2 in his favour. 13. Admittedly, after the death of Dukhu, who was the absolute owner of the property, his widow and two sons acquired 1/3rd interest in the suit property. The sale deed having been found not valid so far as the Plaintiff and Defendant No. 3's is concerned, each of them are entitled to 1/3rd share. In such circumstances, when the Plaintiff had only 1/3rd share in the suit property, question arises as to whether this Court can direct to carve out the share of the Plaintiff in the absence of any alternative prayer in the plaint. In the case of Srinivas Ram Kumar Vs. Mahabir Prasad and Others it was observed that though no alternative claim is made in the plaint to meet the ends of justice, it would not be proper to drive the parties to a separate suit for partition. Similar view was also expressed in the case of Khalli Panigrahi v. Kamala Devi AIR 1967 SC 100. 14. No doubt, the Plaintiff has sought for a declaration that the sale deed executed in the year 1977 and the deed of rectification executed in the year 1978 are void documents and are not binding on the Plaintiff and further declaration that the Plaintiff has got right, title and interest over the suit land. Admittedly, Dukhu Mahakud was the owner of the suit property. Admittedly, Dukhu Mahakud was the owner of the suit property. He had left behind Defendant No. 3, as his widow, Plaintiff and Defendant No. 2 as his two sons. If there is partition at the instance of the sons, the mother (widow) also gets an equal share. Thus, all the three legal heirs of Dukhu have 1/3rd interest each in the suit property. When a party claims exclusive title to the suit property and it is found by the Court that he is entitled to 1/3rd share in the property, it will not be unusual for the Court to pass a decree for partition and possession of his 1/3rd share. In fact, such relief flows from the relief prayed for in the plaint that the Plaintiff has right, title and interest over the property. 15. In view of the aforesaid discussions, this Court being satisfied that the Plaintiff has 1/3rd share in the entire suit property and that Defendant No. 1, who is a bona fide purchaser is entitled to insist for a suit for partition and allotment of lands purchased by him from out of the share of his vendor/who also has 1/3rd interest over the suit land and in view of the fact that the sale deed was executed way back in the year 1977 and 31 years have passed in the meanwhile and Defendant No. 1 is possessing the lands for all these years/this Court is of the opinion that instead of driving the parties to another suit for partition in conformity with the rights inter se, it would be just and appropriate to pass a preliminary decree for partition and separate possession of 1/3rd interest in the Plaintiff. Such a direction would no way prejudice to Plaintiff and this Court directs accordingly. In order to avoid further multiplicity of suits/the decree passed by the Courts below is modified as follows. The entire suit land as described in the plaint schedule is to be divided 1/3rd each among the Plaintiff/Defendant No. 2 and Defendant No. 3. The lands purchased by Defendant No. 1 shall be carved out from 1/3rd share of Defendant No. 1. and shall be allotted in his favour. The sale deed is thus found valid only to the extent of Defendant No. 2's share. Any sale in excess to the share of Defendant No. 2 stands set aside. The lands purchased by Defendant No. 1 shall be carved out from 1/3rd share of Defendant No. 1. and shall be allotted in his favour. The sale deed is thus found valid only to the extent of Defendant No. 2's share. Any sale in excess to the share of Defendant No. 2 stands set aside. Accordingly, preliminary decree is made for partition of the suit land between the Plaintiff and Defendants in the manner as aforesaid. Let a Commission be appointed to effect division by metes and bounds of the suit land according to law. Subject to the modification as aforesaid/this appeal is partly allowed. Each party to bear their own cost of this appeal.