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2013 DIGILAW 2746 (MAD)

Mallika Beevi v. B. Swaminathan

2013-07-30

R.S.RAMANATHAN

body2013
JUDGMENT The 7th defendant in O.S.No.67 of 1976 on the file of the Sub Court, Nagapattinam is the appellant. 2. Respondents 1 and 2 filed the suit for partition and separate possession of their 2/3 share in the suit properties and preliminary decree was passed in respect of 2/3 share of the plaintiffs in respect of items 1 to 6, 8 to 14, 15 and 18 and in respect of item 13, the portion sold to the 7th defendant, the appellant herein. Aggrieved by the same, this appeal is filed. 3. Before going into the merits of this appeal, it is necessary to mention certain facts. Originally, the present appeal was filed by the 5th defendant and the present appellant and later, the 5th defendant entered into a memorandum of compromise with the respondents/plaintiffs and that memorandum of compromise was recorded and the appeal was dismissed as settled out of court in respect of the first appellant/5th defendant. The third defendant also filed appeal in A.S.No.431 of 1980 and he also entered into a compromise with the respondents and A.S.No.431 of 1980 was also decreed in terms of memorandum of compromise. Thereafter, the present appeal in A.S.No.1266 of 1980 is prosecuted by the second appellant. 4. Having regard to the scope of enquiry in this appeal relating to the second appellant, there is no need to elaborate the pleadings and the judgment of the Trial Court and it is sufficient to mention the relevant pleadings in respect of the case of the second appellant in A.S.No.1266 of 1980. 5. The case of the plaintiffs/respondents herein is as follows:- The first defendant Balasubramania Thevar was the father and the plaintiffs are his sons. The first defendant Balasubramania Thevar inherited the properties from his father alongwith his brother Nagaraja Thevar and mother Thangai Ammal and they divided the properties on 15.7.1955 and under the partition, the first defendant got 3-1/2 Velies of nanja lands besides valuable punja properties, manakats and houses towards his share. The outstandings set apart for the first defendant under the partition deed far exceeded the debts to be discharged by him. The first defendant alienated all the joint family properties for his immoral and illegal expenses and there were no antecedent debts to be discharged and there was no justification for the alienation of the joint family properties by the first defendant. The first defendant alienated all the joint family properties for his immoral and illegal expenses and there were no antecedent debts to be discharged and there was no justification for the alienation of the joint family properties by the first defendant. The alienations were not for family benefits and fictitious recitals were made in those sale deeds and therefore, the plaintiffs are not bound by the sale deeds and they filed the suit for partition and separate possession. 6. The first defendant filed a detailed statement stating that to discharge the loan incurred by him in connection with business, various properties were sold and properties were also sold for maintaining the family and to provide education to the children and he also spent money for the marriage of his only sister and all the sale deeds were for the family necessities and they are binding on the plaintiffs. The 13th defendant purchased the suit property under a registered sale deed dated 24.5.1967 and it was sold for the maintenance of the family and and therefore, it is binding on the family. 7. In this appeal, I have not dealt with the statements filed by the other defendants as the appeal was filed only by the appellant in respect of the property purchased by him. 8. On the above pleadings, the following issues were framed:- "1. Whether the suit is barred by limitation? 2. Whether the alienations made by the first defendant are not binding on the family? 3. Whether plaintiffs are entitled to claim partition? 4. What are the properties available for partition? 5. To what relief, is the plaintiff entitled?" 9. The first plaintiff examined himself as PW1 and marked 16 exhibits and defendants 2, 5, 7, 10 and 11 were examined as defendants' witnesses and two more witnesses were also examined on the side of the defendants and 27 exhibits were marked on the side of the defendants. 10. The Trial Court tried issue No.2 and held that the sale in favour of the second appellant in this appeal was not for legal necessity and it was not binding on the plaintiffs. 10. The Trial Court tried issue No.2 and held that the sale in favour of the second appellant in this appeal was not for legal necessity and it was not binding on the plaintiffs. Issue No.1 was decided in favour of the plaintiffs and the Trial Court held that the suit was not barred by limitation and issues 3 and 4 were also decided in favour of the plaintiffs holding that the plaintiffs are entitled to the relief of partition and preliminary decree was passed granting 2/3 share in items 1 to 6, 8 to 12, 14, 15, 18 and the portion sold to the 7th defendant, the present appellant under Ex.B21 in item 13. 11. Mrs.P.T.Asha, learned counsel for the appellant submitted that the Trial Court erroneously placed the burden on the alienee and held that the sale in favour of the appellant was not for legal necessity and the sale was not binding on the appellant and the Trial Court ought to have placed the burden on the plaintiffs to prove that the joint family mortgaged the assets and they generated income and there was surplus income from the properties and there was no necessity for the first defendant to sell the properties and in the absence of any evidence let in by the plaintiffs, the Trial Court ought to have accepted the recital in the sale deed and held that the property was sold for legal necessity and dismissed the suit in respect of the appellant concerned. She further submitted that in the sale deeds itself, it has been specifically stated that the property was sold for discharging the agricultural loan and payment of kist and that has to taken into consideration in the absence of any other contra evidence and also relied upon the judgment reported in S.V.GOPALAKRISHNAN v. VENUGOPAL (1976 II MLJ 134) in support of her contention. 12. 12. The learned counsel further submitted that the first defendant filed a statement, but, deliberately he did not enter into the the box and did not give evidence and the first defendant colluded with the plaintiffs and the purchaser cannot be expected to know about the reasons for the sale of the properties belonging to the family and therefore, the law places the burden on the plaintiffs who challenge the alienation to prove that the sales were not for legal necessity and in this case, the respondents/plaintiffs miserably failed to prove the same and therefore, the sale in favour of the appellant has to be upheld and the property has to be excluded from the suit. 13. Point for consideration that arise in this appeal is whether the sale in favour of the appellant was for legal necessity and whether the respondents/plaintiffs discharged the burden that the sale was not for legal necessity. 14. I am unable to accept the contention of the learned counsel for the appellant. In the judgment reported in 1976 II MLJ 134, the Honourable Division Bench relied upon the judgment of the Honourable Supreme Court reported in RADHAKRISHNADAS v. KALURAM ( AIR 1967 SC 574 ) wherein the Supreme Court laid down as follows:- "Where an alienation, by way of sale of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the alienee is required to establish is his 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. The reason 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 management himself." 15. The Trial Court also relied upon the same judgment and also relied upon the judgment in GOPALAKRISHNA PILLAI AND ANOTHER v. MARUTHAPPAN ALIAS SUSINTHARAN AND OTHERS ( 1974 2 MLJ 345 ) and also the decision in MEENAKSHI ACHI v. N.M.MANIKKAM CHETTIAR AND OTHERS ( 1960(1) MLJ 89 . The Trial Court also relied upon the same judgment and also relied upon the judgment in GOPALAKRISHNA PILLAI AND ANOTHER v. MARUTHAPPAN ALIAS SUSINTHARAN AND OTHERS ( 1974 2 MLJ 345 ) and also the decision in MEENAKSHI ACHI v. N.M.MANIKKAM CHETTIAR AND OTHERS ( 1960(1) MLJ 89 . A reading of the above judgments would make it clear that the alienee is required to establish the legal necessity for the transaction and it is not necessary for him to establish the application of money. In this case, it is admitted by DW7 that he did not know the interest due to be paid by the first defendant. Therefore, when the alienee did not make any enquiry while purchasing the suit property, it cannot be stated that the sale was for legal necessity. 16. Further, admittedly, the first defendant was owning three velies of nanja lands and house properties and was doing business and therefore, a presumption can be drawn that he was getting good income from those properties and the business and in such circumstances, there is no need for the plaintiffs to prove that the properties yielded income and there was surplus income in the family. The fact that the family was in possession of sufficient properties and the absence of any loans, leads to the presumption that the properties of the family yielded income and that was sufficient to meet the expenses and there might be surplus income. Considering all these aspects, the Trial Court has rightly held that the sale in favour of the appellant was not for legal necessity and the sale in favour of the appellant was not binding on the plaintiffs. Hence, I do not find any infirmity in the findings of the Trial Court in that regard. 17. I, therefore, hold that the appellant, by not making any enquiry regarding the necessity for the sale, has failed to discharge the burden that the sale was for a legal necessity and having regard to the fact that the family was in possession of large extent of punja lands and house properties and business, the plaintiffs/respondents have discharged the burden that there was no necessity to incur loans and the point for consideration is answered against the appellant. 18. In the result, the appeal is dismissed and the judgment and decree of the Trial Court is confirmed. 18. In the result, the appeal is dismissed and the judgment and decree of the Trial Court is confirmed. However, it is made clear that the appellant has purchased item 13 having a larger extent and admittedly, the first defendant was entitled to 1/8 share in the property and therefore, while passing the final decree, the appellant can pray for allocating the property purchased by him towards the share of the first defendant and at that time, equity can be invoked and while passing the final decree, the court below can consider the allotment of the property purchased by the appellant towards the share of the first defendant. No costs.