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2009 DIGILAW 651 (MAD)

V. Madusoodanan v. Vasudeva Raja

2009-02-27

V.PERIYAKARUPPIAH

body2009
J U D G M E N T:-This is an appeal filed by the aggrieved plaintiff against the judgment and decree passed by the lower Court in dismissing the plaintiff’s suit for partition and separate possession of his ½ share in the suit property and other reliefs. The plaintiff as minor had come up with the case of questioning the sale made by father, the first defendant herein and in that action he was represented by his mother. 2.The brief facts of both the parties before the lower Court are as follows:- (A) The brief averment made in the plaint runs as follows: The plaintiff is the only son of the first respondent-defendant. The petitioner-plaintiff and the first respondent-defendant are the members of the undivided joint family. The suit property was purchased out of the joint family income derived from the ancestral property. Since the first respondent-defendant is the father of the petitioner-plaintiff and the manager of the family, the sale deed was taken in the name of the first respondent. Subsequently, the building in the suit property was constructed with the loan amounts obtained from the Madras Co-operative House Mortgage society and with the joint family income. The mortgage deeds were executed in favour of the Madras Co-operative House Mortgage Society by the first respondent-defendant for himself and as guardian for the petitioner-plaintiff. The petitioner-plaintiff is entitled to half share of the property and the first respondent-defendant is entitled to other half share. Meanwhile in 1974, the first respondent-defendant met with an accident and as a result of which he lost his mental balance. Taking advantage of this, the father of the second respondent-defendant made the first respondent-defendant to execute a sale deed with respect to the suit property in the name of the second respondent-defendant. The first respondent-defendant was not competent to execute the sale deed as he was mentally unsound at the time of execution of the sale deed. In any event, the sale deed is not binding upon the share of the plaintiff. Hence the suit is filed for partition. (B) The defence raised by the second defendant in the written statement are as follows: The second defendant submits that at the outset, the mother and next friend, Anusuya Devi has no authority to represent the plaintiff and institute the suit. She also submits that the first defendant's residential address furnished by the plaintiff is false. (B) The defence raised by the second defendant in the written statement are as follows: The second defendant submits that at the outset, the mother and next friend, Anusuya Devi has no authority to represent the plaintiff and institute the suit. She also submits that the first defendant's residential address furnished by the plaintiff is false. She also submits that the suit property is a joint family property of the first defendant and the plaintiff. It is also false that the vacant site measuring about 2400 sq ft., was purchased out of the joint family income. At the time of selling the property, namely, the house and ground in the year 1977, the first defendant represented to the second defendant and her father that the ground and the house was his self-acquired property purchased from his own earnings. On enquiry, it is made clear that the said house site was acquired from his own earnings and not out of the joint family income. The sale deed executed by the first defendant to the second defendant contained recitals to the effect that he was the sole and absolute owner of the house property and that he purchased the plot from one Mr.Mohamed Ali out of his own earnings. Then he raised the mortgage loan with the Madras Co-operative House Mortgage Society and put up the constructions. He further categorically stated in the sale deed that he was the absolute owner of the said property and no one else had any right, title or interest over the same. Since it happened to be a long term loan, the mortgage deed was executed on behalf of the minor son at the instance of the Secretary of the Society and it does not confer on the plaintiff any right or title over the property. Moreover it is false to say that the first defendant lost his mental balance in a motor accident because the first defendant had transacted several business activities subsequent to the accident. Therefore, the sale deed is perfectly valid. The parents of the plaintiff have chosen to come forward with this plaint in the name of their minor son after 5 years from the date of sale on false and untenable ground in order to derive pleasure by causing harassment to the second defendant and her family. Hence, the suit has to be dismissed. 3. The parents of the plaintiff have chosen to come forward with this plaint in the name of their minor son after 5 years from the date of sale on false and untenable ground in order to derive pleasure by causing harassment to the second defendant and her family. Hence, the suit has to be dismissed. 3. The lower Court had, after full-fledged trial, framed the following issues for disposal: (i). Whether the suit was filed by the plaintiff in collusion with the first defendant? (ii). Whether the plaintiff is living under the care and custody of the first defendant? (iii). Whether the plaintiff and the first defendant are living in the same house? (iv). Whether the mother Anusuya Devi is competent to conduct the case on behalf of the plaintiff as a guardian/ next friend? (v). Whether the suit property was purchased in the name of the first defendant by utilizing the income from joint family? (vi). Whether the first defendant was competent to sell the suit property to the second defendant? (vii). Whether the plaintiff is entitled for partition and separate possession of the suit properties? If so, what is his share? (viii). To what relief, the plaintiff is entitled for? Additional Issue: Whether the proper court fee was paid? 4. The lower Court had examined the plaintiff as P.W.1, his mother Anusuya Devi as P.W.2 and one Duraivenkatraja as P.W.3 and had admitted Exs.A.1 to A.40 and also examined D.W.1 to D.W.4 on the side of the second defendant and had admitted Exs.B.1 to B.28 in support of her case and had come to a conclusion of dismissing the suit filed by the plaintiff after concluding all the issues except the additional issue against the plaintiff. 5. Heard, Mr.M.V.Karunakaran, the learned counsel appearing for the appellant and Mr.G.Jawaharlal, the learned counsel appearing for the second respondent. 6. On a careful perusal of the pleadings, the oral and documentary evidence adduced on either side and after going through the judgment and decree of the lower Court and upon hearing the arguments advanced on either side, the following points would emerge for consideration in this appeal: (i) Whether the suit property was the joint family property consisting of the plaintiff and the first defendant? (ii) Whether the suit property was self acquired property of the first defendant? (ii) Whether the suit property was self acquired property of the first defendant? (iii) Whether the sale deed dated 15.9.1977 executed by the first defendant in favour of the second defendant in respect of the suit property is binding upon the plaintiff? (iv) Whether the plaintiff is entitled to partition and separate possession of ½ share in the suit property as prayed for? (v) To what relief the appellant /plaintiff is entitled for? 7. For convenience, the ranks of parties before the lower Court are mentioned in this judgment. Point Nos. (i) to (iv) : The plaintiff is the son of the first defendant and the next friend P.W.2. When the plaintiff was a minor, on 15.9.1977, the first defendant had executed the sale deed in favour of the second defendant in Ex.A.32 against which the then minor plaintiff had questioned the said sale by claiming that the said suit property was not the self acquired property of the first defendant but it was belonging to joint family consisting of the first defendant and the plaintiff and it was not made for any legal necessity which necessitated the sale and the first defendant was also not in a sound and disposing state of mind due to the injury sustained on his head in the accident occurred on 14.7.1974 and therefore the sale deed would not bind the ½ share belonging to the plaintiff and, accordingly, he is entitled for partition and separate possession of his ½ share in the suit property. 8. The learned counsel for the plaintiff would submit in his argument that the property was purchased by the first defendant with the utilization of the income derived by the first defendant from the ancestral property at Rajapalayam and it could be evidenced through Exs.A9 to A11 through which money was sent by father of first defendant, one Ayyanar Raja for the purchase of the vacant site in the suit property and Exs.A.8 and A.15 mortgage deeds were executed by first defendant and the plaintiff in order to raise money for putting up construction in the said property and with the help of those funds and materials received from Rajapalayam, construction was completed and, therefore, it has become the joint family property of the first defendant and the plaintiff. The evidence adduced towards the said plea on the side of the plaintiff was neither discussed nor considered by the lower Court and without such analytic approach, the lower Court had wrongly come to the conclusion of dismissing the suit. 9. The learned counsel for the plaintiff would further submit in his argument that the suit property, even if it was deemed to have been purchased by the first defendant, which has to be established by the purchaser, (the second defendant) the same was treated by the first defendant as a property belonging to the joint family consisting of the first defendant and the plaintiff by executing Exs.A8 and A15 documents in favour of the housing societies and, therefore, they have to be considered as the joint family properties belonging to the first defendant and the plaintiff. In support of his case, he had cited the judgment of the Apex Court reported in AIR 1970 SC 1722 (Goli Eswariah v. Commissioner of Gift Tax, Andhra Pradesh). He would also draw the attention of this Court to the judgment of this Court reported in AIR 1955 Mad. 623 (R.Subramanja Iyer v. The Commissioner of Income Tax, Madras) to the same principle. He had also submitted the judgment of our Apex Court reported in AIR 1969 SC 1076 (mudigowda Gowdappa Sankh v. Ramachandra Revgowda Sankh) to the proportion that the burden of proof of any particular property as joint family property, is, upon the person who claims it to be so at the first instance and when the possession of a nucleus of the joint family is proved the onus of proving that it is a self acquired property shifts on the other side. 10. He would insist in his argument that as per the judgment of this Court cited supra, the treatment of ownership of the separate property by abandoning his separate rights and renunciation of the character of self acquired property would be sufficient to hold the said property as joint family property. 10. He would insist in his argument that as per the judgment of this Court cited supra, the treatment of ownership of the separate property by abandoning his separate rights and renunciation of the character of self acquired property would be sufficient to hold the said property as joint family property. He would further submit in his argument that the onus is heavily on the person, who claims the property as self acquisition, to affirmatively make out that the property was acquired without any aid from the family estate, when the existence of joint family property was shown and sufficient nucleus from the said joint family property was flown to buy the said property has been proved by the person who asserts that the said property is a joint family property. 11. Therefore, he would further insist in his argument that the plaintiff in this case had shown that income from the joint family properties were sent by Ayyanar Raja to the first defendant for the purchase of the suit property has been proved through Exs.A4,A9 to A11 and accordingly, the burden shifted to the second defendant to prove the case of contrary. He would vehemently argue that the mortgage deeds in Exs.A8 and A15 would show that the plaintiff was also made as one of the executants along with the first defendant. The said participation of plaintiff in those documents to get loans for putting up constructions would amply show the relinquishment of the character of self acquired property and it would become the joint family property as per the judgment of this Court. Therefore, the sale deed in Ex.A32 without joining the plaintiff and without valid and adequate consideration will not bind the ½ share of the plaintiff in the suit property. 12. Moreover, he would submit in his argument that the evidence of D.W.1 would show that the first defendant met in a road accident in the year 1974 and the ignorance pleaded by the second defendant in the written statement on that aspect would go a long way to show that the second defendant was suppressing the correct facts. 12. Moreover, he would submit in his argument that the evidence of D.W.1 would show that the first defendant met in a road accident in the year 1974 and the ignorance pleaded by the second defendant in the written statement on that aspect would go a long way to show that the second defendant was suppressing the correct facts. He would further submit in his argument that the admission made by D.W.1 to the effect that Exs.A26 to A29 were executed by the first defendant in the letter head of the second defendant would go to show that the recitals of consideration in the sale deed Ex.A.32 were concocted and were not truly depicting the consideration. He would further argue that D.W.1 had also admitted that he did not pay last payment of discharge of the mortgages Exs.A8 and A15 and that would go to show that he did not discharge the mortgages mentioned in the sale deed as prior debts of the first defendant or family. 13. Apart from that he would also draw the attention of the Court that the second defendant did not produce the discharge certificate said to have obtained by him from Shri.Shakti Finance as stated in the sale deed Ex.A32=B19. Of all, the consideration in the sale deed Ex.A32 was for Rs.60,000/-whereas it had been fixed at 90,000/- as per S.R.O., Alandur and stamp duty was collected on that value only. This would go to show that the property was not sold for a correct market value. He would further submit that the debts incurred in Exs.A-8 and A-15 mortgages were existing then and the terms of the said debts were by selling the property including the minors share. Therefore, he would request the Court to set aside the findings of lower court since the property was sold for a in adequate sum without including the minor plaintiff, who was having right at the time of sale and the sale consideration was not utilized for the benefit of the minor by discharging the debts incurred by him along with first defendant. In the aforesaid circumstances, he would further submit that the plaintiff is also entitled to ½ share in the suit property since he was not represented in the sale deed Exs.A32=B19, it would not bind the plaintiff’s ½ share and accordingly, the claim for partition may be decreed. 14. In the aforesaid circumstances, he would further submit that the plaintiff is also entitled to ½ share in the suit property since he was not represented in the sale deed Exs.A32=B19, it would not bind the plaintiff’s ½ share and accordingly, the claim for partition may be decreed. 14. The learned counsel for the second respondent / second defendant would submit in his argument that the plaintiff had miserably failed to show that the first defendant was mentally not sound while the sale deed was executed by him in favour of the second defendant and the admitted photographs produced by the defendants in Exs.A33 to A36 would show the presence of the first defendant at his residence in a hale and healthy conditions and the alleged certificates obtained from the Doctor in Exs. A.22 and A.23 would not be helpful to the plaintiff without examining the said doctor. He would also insist upon the Court that the first defendant had sought for permission before the Estate Officer of Military cantonment since the property was covered under the cantonment area and only after obtaining permission, the sale deed was executed by the first defendant in favour of the second defendant. He would also submit that the said letters produced as Exs.B.15 to B.18 would go to show that the first defendant was sane during the time of execution of sale deed till it was registered before the Sub Registrar on 03.11.1977. 15. He would further submit that the property was possessed by the first defendant as self acquired property and he had also mentioned in the sale deed as self acquired property and merely joining of the plaintiff in the mortgage deed at the instance of the creditor cannot be considered to be a joint family property. He would further submit that it should be drawn into the common hotchpot by the first defendant distinctively for being treated as joint family property. Unless it is shown that it had been treated as joint family property it would not get the colour of the joint family property. He would also submit that even otherwise the property is belonging to the joint family, the first defendant as Karta of the joint family could validly transfer the right of minor when it was for his legal necessities and for discharging antecedents debts. He would also submit that even otherwise the property is belonging to the joint family, the first defendant as Karta of the joint family could validly transfer the right of minor when it was for his legal necessities and for discharging antecedents debts. Admittedly, mortgages in Exs.A8 and A15 were discharged under the said sale deed for the welfare to the benefit of the minor plaintiff and, therefore, the sale executed by the first defendant in favour of the second defendant would be binding upon the plaintiff. 16. The claim of the plaintiff that the property was purchased by the first defendant out of the joint family income derived from the joint family properties cannot be believed and Exs.A4, A9 to A11 would not in any way prove the actual application of the alleged joint family funds to the purchase of the vacant site of the suit property. If really, the said joint family, consisting of the brothers of the first defendant, which was said to have contributed funds from its nucleus, the brothers of the first defendant should have been impleaded as parties to the suit and the non impleadment of brothers of the first defendant would go a long way to show that there was no income derived from the joint family properties and were applied by the first defendant for the purchase of the suit property. The first defendant was sufficiently having money for the purchase of the vacant site of the property as he was earning comfortably by working as a Foreman incharge in Indian Reinforcing Company (Welded Mesh) Pvt. Ltd. He would also submit in his argument that the very fact that the first defendant and his wife had approached the second defendant for buying the said property and were also in dire in need of money and for that they advertised in papers also for the sale of the property and, therefore, the plaintiff cannot claim that there was no necessity for selling the suit property by the first defendant to the second defendant. 17. 17. He would also submit in his arguments that the property was situated in the cantonment area and at any time it can be taken away from the owner by the cantonment for the purpose of the Government and on that risk, the value of the property could be only Rs.60,000/- in the year 1977 and the evidence of D.W.4 would go a long way to show that the value would be only Rs.61,000/- in the year 1977 and in the said circumstances, the said sale of the suit property was supported by proper consideration. He would also submit in his argument that the first defendant had executed the sale deed in a sound state of mind which was spoken to by D.W.2 and D.W.3 and the Sub Registrar would not have registered the said document unless the executant was in a sound and disposing state of mind. Moreover, the plaintiff ought to have sought permission of the Court for appointment of next friend or guardian to the first defendant if he was actually of un-sound mind. Therefore, the execution of sale deed by the first defendant in respect of his own self acquired property to the correct value cannot be questioned by the plaintiff. 18. He would draw the attention of the Court to the Judgment of the Apex Court reported in 1996 (9) SCC 53 (Gangadharan vs. Janardhana Mallan and others) to the effect that the challenging of sale which took place long back need not be set aside on the plea of legal necessity and application of sale consideration. He would also cite the judgment of apex Court reported in AIR 1980 SC 645 (Arvind and another v. Anna and others) in respect of enquiry to be made regarding the pressing need for sale of the property of a minor. He would also submit the judgment of this Court reported in 1977 II MLJ 286 (A.Pattammal vs. Nagarajan and others) to the point in respect of existence of the legal necessity for the sale of the property concerned. He would also bring it to the knowledge of the Court a judgment reported in AIR 1964 Ori 229 (Indramani Bai v. Sweta Kumar and others) to the effect that the antecedent debt need not be a debt nor reaching maturity. He would also bring it to the knowledge of the Court a judgment reported in AIR 1964 Ori 229 (Indramani Bai v. Sweta Kumar and others) to the effect that the antecedent debt need not be a debt nor reaching maturity. He had also brought it to the notice of this Court regarding the powers of the father to execute the sale deed as Karta of joint family as reported in AIR 1963 J & K 46 (Imderjict Singh and others v. Krizhen Lal and others). He had also cited the judgment of Andhra Pradesh High Court reported in AIR 1961 AP 183 (Hindustan Ideal Insurance co. V. Perla Sahevya Chetty and others) to show that in order to distinguish legal necessity for alienation and the alienation for discharging the antecedents debts. He had also cited the judgment of Apex Court reported in AIR 1987 SC 1242 (Ram Sarup Gupta v. Bishun Narain Inter College and others) in order to show that no amount of evidence can be let in beyond the pleadings. 19. He would, therefore, submit that the plaintiff did not prove that the property was a joint family property nor the alienation in favour of the second defendant by the first defendant was not for legal necessity or for any bad debts and the plaintiff and his mother were also willing parties at the time of execution of sale deed and they kept quiet for number of years to question the sale, and, therefore, the plaintiff is not entitled to any relief as asked for by him. He would also submit that the appeal be dismissed confirming the judgment of the lower Court. 20. I have given anxious consideration to the arguments advanced on either side. 21. The suit property, plot No.35, Ravi Colony, was originally purchased by the first defendant from one Appasamy. After the purchase, he had put up constructions in the ground floor and the first floor and was residing there with his family. According to the plaintiff, the first defendant had purchased the said property with the funds available from the joint family property of the first defendant at Rajapalayam. The letters produced by plaintiffs in Exs.A.9 to A.11 would go to show that the father Ayyanar Raja had sent some monies to the first defendant. According to the plaintiff, the first defendant had purchased the said property with the funds available from the joint family property of the first defendant at Rajapalayam. The letters produced by plaintiffs in Exs.A.9 to A.11 would go to show that the father Ayyanar Raja had sent some monies to the first defendant. The said letters would only go to show that the father had given money to the first defendant. The evidence of P.W.3 would go to show that he had got the money of Rs.4,000/- from the father of the first defendant and handed over the same to the first defendant for the purchase of the vacant site of the suit property. Even according to the evidence of P.W.3, the properties belonging to the first defendant and his brothers were not divided in between them. If really, the income from the joint family properties of first defendant and his brothers had been applied for the purchase of the suit property, the brothers of the first defendant or their representatives should have been impleaded as parties to the suit. However, they were not made as parties. In this regard the judgment of our Apex Court reported in AIR 1969 SC 1076 cited supra would make us to understand clearly the position of law. The relevant portion would run as follows: “The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. 22. On a careful understanding of the aforesaid judgment, it has to be seen altogether as to whether the plaintiff has discharged his burden. As we discussed already, regarding the evidence adduced by the plaintiff, the forwarding of monies earned from the joint family property at Rajapalayam has not been properly spoken and even if it is taken as proved, necessary parties constituting the joint family, regarding the properties at Rajapalayam were not impleaded and the properties at Raja palayam were also not included in the schedule of properties. In these circumstances, it cannot be taken that the income from the joint family nucleus at Rajapalayam was utilized for the purpose of acquiring the plot No.35 of Ravi Colony by the first defendant. There is no clear evidence to speak about the nexus of the income from the joint family nucleus and the purchase of the said property. Therefore, it cannot be held that the income from the joint family properties of the first defendant and his brothers were applied for purchasing the plot No.35 in which the suit property is situate. Naturally, alternative presumption would be that the first defendant had utilized his monies for the said purchase of the property. 23. However, the case of the plaintiff would be that the father of the first defendant had treated the said property as that of the property belonging to both the first defendant and the plaintiff and he has abandoned his right over the property as self acquired property and had treated the said property belonging to both the plaintiff and the first defendant. The judgment of the Apex Court reported in AIR 1970 SC 1722 (GOLI EASWARIAH VS. COMMISSIONER OF GIFT TAX, ANDRAPRADESH) would run a follows. “The separate property of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing up with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate right in it as separate property. The act by which the coparcener throws his separate property to the common stock is unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. 24. The act by which the coparcener throws his separate property to the common stock is unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treats it as a property of the family. 24. Apart from that the judgment of this Court reported in AIR 1955 MADRAS 623 (R.SUBRAMANIA IYER vs. COMMISSIONER OF INCOME TAX, MADRAS) would also explain the change of nature of the property from self acquired to joint family property as follows: “They might have started with no ancestral nucleus or other joint family property but there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property.” 25. On the application of the aforesaid principles with the present case, we could see that the first defendant had joined with the plaintiff in obtaining loan for building the house in plot No. 35 of Ravi Colony through Exs. A.8 and A.15. Exs.A.8 and A.15, the mortgage deeds executed by the first defendant as father along with his then minor son, the plaintiff would go to show that the said loans were borrowed from the Madras Co-operative Housing Mortgage Society. The evidence of D.W.1 to the effect that the plaintiff was joined as co-executant in the said mortgage deed along with the first defendant only at the pressure of the housing Society and it was not intended to be so. It is also argued on the side of the second defendant that the first defendant himself had described the said property mentioned in the sale deed in Ex.32= Ex.B19 that it is purely a self acquired property. However no person from the said housing society was examined to support the evidence of D.W.1. Therefore, his oral evidence to that effect is liable to be by the documentary evidence Ex.A8 and A15 under Section 92 of Indian Evidence Act. 26. However no person from the said housing society was examined to support the evidence of D.W.1. Therefore, his oral evidence to that effect is liable to be by the documentary evidence Ex.A8 and A15 under Section 92 of Indian Evidence Act. 26. Considering the said instances pointed out by both sides, we can see that indisputably the first defendant had joined with the then minor plaintiff as one of the executants in Exs.A.8 and A.15 mortgages. It is also not disputed that the first defendant had put up constructions by utilizing those funds derived by him through the said loans in Exs.A8 and A15. Therefore, the character of the right over the plot No.35 purchased by him from Apppasamy, and was built up with the money borrowed by both the first defendant and the plaintiff by virtue of joining the plaintiff in the said mortgage deeds, would be subject to the intention of the first defendant expressed through Exs.A8 and A15. 27. The first defendant had abandoned or renunciated his exclusive right over the said property and had made the property as belonging to the joint family constituted in between himself and the minor plaintiff through Exs.A8 and A15 mortgages. A Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. Similarly, the members of the joint family when it remains as undivided family either all the members of a branch or of a sub-branch, can form a distinct and separate unit within the larger corporate family and hold property as such. In other words, a joint family can be constituted in a joint family which is not prohibited by law. In this case, even though the larger joint family is in existence, the joint family in between the plaintiff and the first defendant was created by the first defendant by renouncing the self acquired character of the suit property to that of belonging to his branch unit containing the plaintiff and the first defendant and, therefore, the plaintiff and the first defendant should hold the suit property as the property belonging to the joint family containing the plaintiff and the first defendant. 28. It is also not necessary that the said property should have been thrown in to the hotchpot of all other joint family property held by the first defendant with his brothers, the other coparceners. 28. It is also not necessary that the said property should have been thrown in to the hotchpot of all other joint family property held by the first defendant with his brothers, the other coparceners. The joint family in between the plaintiff and the first defendant can hold this property as joint family property through the renunciation of the first defendant by joining the plaintiff in execution of Exs.A8 and A15. Therefore, I have no hesitation to hold that, even though the plaintiff had failed in his attempt to prove the application of joint family income in buying the plot No.35 of the suit property, he had succeeded in proving the suit property became the joint family property, from its original character of self acquired property of the first defendant, belonging to the plaintiff and the first defendant. Therefore, it has become necessary to hold that the suit property was treated as joint family property of the first defendant and the plaintiff. 29. As regards the binding nature of the sale executed by the first defendant in favour of the second defendant is concerned, we have to thoroughly look into the evidence explaining the circumstances under which the said sale was executed by first defendant in favour of the second defendant. According to the plaintiff, the first defendant was not in a sound mind due to the accident had by him in the year 1974. There was no document produced by the plaintiff to prove the said accident. However, the accident was admitted by the second defendant’s witness, namely, D.W.2 in his evidence. The plaintiff had also produced Exs.A.22 and A.23, the certificates issued by Dr. Ramamoorthy, to the effect that the first defendant was cured of the injury sustained by him in the accident and however, he was going out of memory due to the said impact. The said Doctor, who had issued Exs.A.22 and A.23 was not examined on the side of the plaintiff. Without examining the author of Exs.A.22 and A.23, it is not possible to come to a conclusion that the first defendant was not in a sound mind caused due to the said impact in the accident. Moreover, it was shown to the Court that the first defendant had correspondences with the Estate Officer of St.Thomas Mount Cantonment, which were produced at Exs.B15 to B18. Moreover, it was shown to the Court that the first defendant had correspondences with the Estate Officer of St.Thomas Mount Cantonment, which were produced at Exs.B15 to B18. Those correspondences were dated after the execution of sale deed on 15.9.1977 and before the registration of the said sale deed on 03.11.1977. If really, the first defendant was not in a sound state of mind, he could not have corresponded with the Estate Officer for the purpose of obtaining permission to sell the said property. 30. Apart from that, the first defendant was impleaded in the suit as if he was a sane person. If really, he was not in a sound state, he should have been represented by a next friend as contemplated under order XXXII C.P.C. It would show that the plaintiff was not definite that the first defendant was not in a sound and disposing state of mind and, therefore, no such appointment of next friend was sought for by the plaintiff. In these circumstances, it could be held that the first defendant was not in an unsound state of mind at the time of execution of sale deed Ex.32=Ex.B19. 31. However, it was contended that the said sale deed executed by the first defendant would not bind upon the right of the plaintiff in the suit property because it was not executed by the plaintiff as one of the executants nor there was any legal necessity for executing the sale deed on behalf of the plaintiff. The very fact that the sale deed executed by the first defendant in favour of the second in Ex.A32=B19 would refer the suit property as self acquired property of the first defendant, it cannot now be turned round and say that it was executed by the first defendant as Kartha of the joint family in between the first defendant and plaintiff and therefore, it would bind the plaintiff also. 32. It was argued on the side of the plaintiff that even if the sale deed Ex.A32=B19 was considered as executed by first defendant as karta of joint family there was no imminent necessity to sell the property for the purpose of discharging the debts contracted by himself along with the plaintiff with the housing society and in respect of of other loans also and, therefore, those debts cannot be treated as antecedent debts in order to bind the plaintiffs. 33. 33. According to the second defendant, there is no need for mentioning any debts as antecedent debts in the sale deed. The outstanding debts on the date of execution of sale deed would be treated as antecedent debts and the recitals in Ex.B19 would go a long way to show that 50% of such consideration were in respect of discharging antecedent debts. For that purpose, we have to refer the judgment reported in AIR 1963 JAMMU AND KASHMIR 46 cited supra. Similarly, the judgment rendered by Andhra Pradesh High Court in AIR 1961 AP 183 cited supra is also to be seen for the purpose of appreciating the earlier judgment. The relevant passages would run as follows: AIR 1963 JAMMU AND KASHMIR 46 Whereas a Karta in order to bind the other coparceners can alienate the property only for legal necessity or benefit of the estate, a father can alienate the properties and blind the share of the sons in such properties even for his antecedent debts so long as these debts are not tarnished with immorality or illegality. In other words, the father as a Karta can incur debts even for his personal purposes provided the debts contracted are just debts and the son’s liability would still be there even if the debts were not for legal necessity. AIR 1961 AP 183 “An alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debts. It is distinct power of the father to alienate joint family property including the shares of his sons therein for his antecedent debts, not tainted by illegality or immorality. The alienation for necessity is a limited power of a manager of the joint family in the exercise whereof a father does not stand in position superior to a managing member of the joint family. Consequently, different considerations arise it an alienation is sought to be supported on the ground of legal necessity. Those considerations cannot be imported in examining an alienation by a father for the discharge of his antecedent debts.” 34. On a careful perusal of those two judgments, it is clear that discharging of antecedent debts are of different from the alienation for legal necessity. Those considerations cannot be imported in examining an alienation by a father for the discharge of his antecedent debts.” 34. On a careful perusal of those two judgments, it is clear that discharging of antecedent debts are of different from the alienation for legal necessity. So far as the antecedent debts are concerned, if they were not for immoral or illegal debts, those debts would be for legal purposes and are termed as antecedents debts. Legal necessity is certainly a different one and it requires the satisfaction of the necessity of the joint family. 35. According to the evidence adduced by the second defendant that the property was sold for the purpose of discharging the loan obtained by the first defendant as he was not able to discharge them through his income. Admittedly the said loans are term loans and the terms were not over so as to pressurize the first defendant to pay all the loans. Moreover, the said loans were stated to have been paid by the second defendant already and the recitals in Ex.B19 would also depict the same. 36. On the other hand, Exs. A.8 and A.15 would go a long way to show that the mortgages were cancelled only on 10.9.1979, two years after the said sale deed. Therefore, we could see that there is no pressing necessity for the first defendant to sell the suit property for the benefit of the joint family. Apart from that, D.W.1 had categorically admitted in his evidence that he did not pay the last payment payable to Exs.A8 and A15 mortgages. His categorical admission would go to show that he did not discharge the mortgage debts as told in the sale deed Ex.B19. His evidence would also go to show that even though he had discharged the debts payable to M/s. Sri Sakti Finance, Madras but he did not produce the discharge certificate obtained from the said creditor company. It was also not spoken by the second defendant that the said debt was also obtained by the first defendant for the benefit of the joint family. When these two debts mentioned in the recitals of consideration of Ex.B.19 were not discharged by the second defendant to the benefit of the joint family, there could be no benefit accrued from the said sale Ex.B19 in favour of the joint family. 37. When these two debts mentioned in the recitals of consideration of Ex.B.19 were not discharged by the second defendant to the benefit of the joint family, there could be no benefit accrued from the said sale Ex.B19 in favour of the joint family. 37. Apart from that the sale consideration mentioned in Ex.B19 as advance of Rs.4,000/- and the payment of Rs.19,165.24 on the date of execution of sale deed (15.9.1977) and a sum of Rs.7,000/- on the date of registration of sale deed (03.11.1977) were not correlated with the receipts given by the first defendant in favour of the second defendant in Exs.A26 to A29. Ex.A27 is dated 21.7.1977 which is corrected as Rs.4,000/- in numerical digits whereas the description in words are different. No doubt, a sum of Rs.7,000/- is said to have been paid before the Sub Registrar on the date of registration. Except this payment all other payments shown in Ex.B19 are contradictory with the receipts said to have been issued by D1 in favour of D2 (Exs.A26 to A29). The said discrepancy would be blooming large to a suspicion about the value of the property. The sale deed Ex.B19 would show that the stamp duty paid for Rs.60,000/- was not sufficient as the market value had been Rs.90,000/- on the date of the execution of sale deed and, accordingly, the enquiry was conducted by the Collector and the market value was fixed at Rs.90,000/- and stamp duty was accordingly collected from the second defendant. This could be seen in Ex.B19 whereas the evidence of D.W.1 would go to show that the property was valued by him at Rs.61,000/- in the year 1977. 38. On a careful perusal of the evidence of D.W2, we could see that he had inspected the said property in the year 1992 and had gathered information from the second defendant about the recent constructions and had not valued the compound, shed and the second floor parapet constructions which were available at the time of sale through Ex.B.19. Therefore, the evidence of D.W.4 cannot be considered as depicting the original value. The said report of D.W.4 showing the value of the property at Rs. 61,000/- is contradictory to the value fixed by the stamp duty Collector in the year 1977 at Rs.90,000/- . 39. Therefore, the evidence of D.W.4 cannot be considered as depicting the original value. The said report of D.W.4 showing the value of the property at Rs. 61,000/- is contradictory to the value fixed by the stamp duty Collector in the year 1977 at Rs.90,000/- . 39. In the said circumstances, the sale consideration stated to have been paid by the second defendant to the first defendant was grossly in adequate. Moreover, the evidence of P.W.2 would be that the last payment of the mortgages were paid by the first defendant and P.W.2 and the first defendant went to the housing society to get back the mother deed and other papers after the discharge of those mortgages. The second defendant did not elect to examine any person from the society in order to prove that he alone discharged the mortgage debts as mentioned in the sale deed. 40. In the aforesaid circumstances, this Court comes to a conclusion that the sale deed Ex.A.32=Ex.B19 was made by the first defendant in favour of the second defendant neither for the legal necessity nor for the benefit of the joint family of the plaintiff and the first defendant. Apart from that the sale deed Ex.A32=B19 does not show or indicate that the first defendant had executed the same as karta of the family so as to bind the minor plaintiff. Contrary to that it was affirmed by the first defendant that it was his separate property. Therefore the sale deed Ex.A32 =B19 cannot be considered as executed by the first defendant on the foot of Manager or Kartha of joint family binding the share of the plaintiff. Therefore, the said sale executed by the first defendant will not bind the right of the plaintiff, who was then minor, in the suit property. Since the sale executed by the first defendant in favour of the second defendant in Ex.A32 =B19 is not binding right, title of the plaintiff in the suit property, the plaintiff is entitled to seek for partition of his ½ share in the suit property. Accordingly, all these points are necessarily to be decided in favour of the plaintiff. 41. Since the sale executed by the first defendant in favour of the second defendant in Ex.A32 =B19 is not binding right, title of the plaintiff in the suit property, the plaintiff is entitled to seek for partition of his ½ share in the suit property. Accordingly, all these points are necessarily to be decided in favour of the plaintiff. 41. Point No.(v): In the earlier paragraphs, I have come to a conclusion that the sale deed executed by the first defendant in favour of the second defendant in respect of the suit property through Ex.A32= Ex.B19 did not include ½ share belonging to the plaintiff; that the said sale deed was not executed for the legal necessity and benefit of the then minor plaintiff and that the plaintiff is entitled for ½ share in the suit property. Since the lower Court had wrongly come to a conclusion that the claim of the plaintiff should be disallowed and had thus dismissed suit, it has become necessary for this Court to set aside the judgment and decree passed by the lower Court and the appeal has to be allowed accordingly. Consequently, the suit filed by the plaintiff before the lower Court is preliminarily decreed for partition of his ½ share and separate possession of the suit property. 42. In the result, the appeal is allowed and the judgment and decree of the lower Court are set aside and thereby, the suit filed by the plaintiff before the lower Court is preliminarily decreed for partition and separate possession as prayed for with costs throughout.