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2014 DIGILAW 294 (AP)

V. Eswara Rao v. V. T. Sharat Chandra Thotraj

2014-02-25

M.S.RAMACHANDRA RAO

body2014
JUDGMENT 1. This appeal is filed challenging the judgment and decree dt.19.12.1992 in OS.No.15 of 1987 on the file of the Sub-Ordinate Judge, Parvatipuram. The appellants are Defendant Nos.6, 7, 8, 9, 23-31 in this suit. 2. Heard Sri K.V. Subrahmanya Narasu, counsel for appellants and Smt. Lalitha, representing Sri D. Ramalingaswamy, counsel for 1st respondent. 3. The said suit was filed by 1st respondent/plaintiff through his GPA holder seeking partition of plaint ABCD schedule properties into two equal shares and for delivery of one such share to plaintiff after evicting defendants therefrom, for partition of e schedule movables into two equal shares and for possession of such share or value thereof from 2nd respondent/1st defendant, for profits and costs. 4. By judgment and decree dt.19.12.1992, the suit was decreed for partition of plaint ABCD schedule properties, except items 1 and 2 of Lot I of plaint C schedule into 4 equal shares and to put plaintiff in possession of one such share. Mesne profits were directed to be enquired into on a separate application. Suit as against D-2 was dismissed as per a compromised recorded in IA.No.482 of 1992. 5. Defendant Nos.23 to 31 are the legal representatives of the deceased 3rd defendant. Pending appeal the 5th appellant/defendant No.23 died but her legal representatives are already on record as appellant Nos.6 to 13. THE SCOPE OF THIS APPEAL 6. The counsel for appellant stated the contest in the appeal is only in respect of item Nos.1 and 2 and lot II of the plaint ‘C’ Schedule and that he is not agitating in respect of any other item of the plaint schedule property. 7. In view of this submission, only the pleadings and evidence in respect of this item of the property will be considered in the appeal and I find it unnecessary to deal with the pleadings and evidence regarding the other items in the property. THE PLAINT 8. The 1st respondent/plaintiff is the son of D.21 in the suit. The 1st defendant and 21st defendant and another by name Bhagavathi Prasad Thotraj are the sons of one Narasimha Narayana Thotraj. 9. Bhagavathi Prasad Thotraj died unmarried in or about 1970 and Narasimha Narayana Thotaj died in 1977. 10. THE PLAINT 8. The 1st respondent/plaintiff is the son of D.21 in the suit. The 1st defendant and 21st defendant and another by name Bhagavathi Prasad Thotraj are the sons of one Narasimha Narayana Thotraj. 9. Bhagavathi Prasad Thotraj died unmarried in or about 1970 and Narasimha Narayana Thotaj died in 1977. 10. The plaintiff contended that his father D.21 was mentally unsound and had been hospitalized; that D.21, D.1 and Bhagavathi Prasad Thotraj and their father Narasimha Narayana Thotraj are members of a Hindu Mitakshara Joint Family; that after the death of Bhagavathi Prasad Thotraj in 1970 D.21, D.1 and their father Narasimha Narayana Thotraj continued to be joint family members owning the plaint ‘A’ to ‘E’ schedule properties and Narasimha Narayana Thotraj was acting as family manager; that after hospitalization of D.21, his share in the property was also managed by Narasimha Narayana Thotraj; and that he died in 1977. 11. He further contended that during his lifetime Narasimha Narayana Thotraj and the deceased Bhagavathi Prasad Thotraj executed two registered sale deeds dt.23.03.1969 and 19.04.1969 for Rs.20,000/- and Rs.5,000/-, respectively in favour of 2nd defendant in respect of items 1 and 2 of lot I of plaint ‘C’ schedule; that these sales made in favour of 2nd defendant are not for family benefit or for legal necessity and are not valid and binding on the plaintiff’s share. He also contended that item Nos.1 and 2 of lot II of plaint ‘C’ schedule were granted on a permanent lease under a document dt.26.11.1957 in favour of the 3rd defendant ignoring the rights of D.21 and in derogation of the rights of the plaintiff in the plaint schedule property. The plaintiff also alleged that properties in the other schedules were also sold away by the Narasimha Narayana Thotraj or the 1st defendant; in al the properties covered by the sale deeds executed by Narasimha Narayana Thotraj or 1st defendant, he had a right, title and interest which has been ignored by 1st defendant and his father Narasimha Narayana Thotraj. He contended that he and 21st defendant are entitled for half share in the entire property mentioned in the schedules since both D.1 and D.21 admittedly have a half share each in them. He contended that he and 21st defendant are entitled for half share in the entire property mentioned in the schedules since both D.1 and D.21 admittedly have a half share each in them. He stated that he was all along living in Dhantari Town in Madhya Pradesh but he has been in possession and enjoyment of the plaint schedule properties along with 1st defendant and is, thus, in joint possession along with 1st defendant. THE WRITTEN STATEMENT OF D-3 12. The 3rd defendant filed a written statement denying that the plaintiff is the son of D.21 and contending that the plaintiff is an imposter. He also pleaded that the General Power of Attorney/Ex.A.1 alleged to have been executed by the plaintiff in favour of V.T. Satya Prasad Thotraj is not true and valid; that the suit is speculative since previously the General Power of Attorney had filed OS.No.54 of 1976 against three defendants herein and others in respect of plaint ‘C’ Schedule House property; that the said suit was dismissed with costs and appeal preferred against the judgment and decree was also decreed. He contended that the judgment in OS.No.54 of 1976 operates as res judicata with regard to the house property. He further contended that a registered permanent lease dt.26.11.1957 was executed by D.1 and Narasimha Narayana Thotraj and others in favour of the 3rd defendant and subsequently, a registered sale deed 19.09.1964 was executed in favour of D.23, the wife of 3rd defendant by Janardhana Thotraj and the plaintiff had no right to question the permanent lease deed and the sale deed. 13. The Defendant No.21 submitted that he had no written statement. THE ISSUES 14. The Trial Court framed the following issues and additional issues: “1. Whether the plaintiff is the son of 21st defendant Harichandra Thotraj, entitled to ask for partition ? 2. Whether the genealogy shown in the plaint is correct ? 3. Whether the plaintiff has got title to and possession of the plaint A B C D schedule properties at any time within the statutory period of limitation. If so, whether he is entitled half share to the suit property ? 4. Whether the E Schedule moveables are in existence ? 5. 3. Whether the plaintiff has got title to and possession of the plaint A B C D schedule properties at any time within the statutory period of limitation. If so, whether he is entitled half share to the suit property ? 4. Whether the E Schedule moveables are in existence ? 5. Whether the plaintiff is entitled to question the validity or otherwise of the sale deeds dated 22-3-69 and 19-4-69, 9-7-75, 19-6-74, 20-3-74, 3-4-84, 6-7-81, 23-4-80, 5-9-56, 26-2-77, 9-7-75, the lease deed dt.26-11-57 and the sale deeds dated 19-9-84, 20-9-69, 20-3-69 and 22-9-69 ? 6. Whether the Judgment in OS.54/76 operates as res judicata? 7. Whether there are any vitiating circumstances in all the impugned alienations made in favour of the defendants 2 to 20, if so, whether these alienations can be set at naught without paying Court fee for each document of sale questioned by the plaintiff ? 8. Whether the plaintiff is entitled to mean profits ? 9. Whether the plaint A B C D schedule properties are correct? 10. Whether the suit is bad for non-joinder of partition as claimed in the Written Statement ? 11. To what relief ? Addl. Issue Dated : 27-10-1992:- 1. Whether the contesting defendants are bonafide purchasers for value without notice of the alleged claim and whether they have entitled to the benefit of Sec.41 of T.P. Act?” 15. When the suit came up for trial, the plaintiff and 2nd defendant entered into compromise in respect of item Nos.1 and 2 of lot I of plaint ‘C’ Schedule properties, filed a compromise petition IA.No.482 of 1992 under Order XXIII Rule 3 CPC and the said compromise petition was allowed. As per the terms of the said compromise, the 2nd defendant paid Rs.10,000/- to the General Power of Attorney holder of the plaintiff in open court and the plaintiff did not press the claim further against the 2nd defendant and this is recorded at para 9 of the judgment of the trial court. 16. Before the Trial Court, the plaintiffs examined PWs.1 to 6 and marked Exs.A.1 A.12. The defendants examined DWs.1 to 7 and marked Exs.B.1 to B.14. 17. As stated supra, by judgment and decree dt.19.12.1992, the trial court granted a preliminary decree. 18. 16. Before the Trial Court, the plaintiffs examined PWs.1 to 6 and marked Exs.A.1 A.12. The defendants examined DWs.1 to 7 and marked Exs.B.1 to B.14. 17. As stated supra, by judgment and decree dt.19.12.1992, the trial court granted a preliminary decree. 18. In the said judgment it held that plaintiff is the son of D.21 and rejected the contention of the 3rd defendant that the plaintiff is not the son of D.21. It relied upon Ex.A.4, declaration filed under the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 on 03.11.1981 by D.1 showing that plaintiff as the son of D1’s brother D.21. It held that PW.6, the maternal uncle of D.21 had stated that D.21 was suffering from a mental disease for a long time and no adverse inference can be drawn for his non-examination. It also held that even for non-examination of the plaintiff no adverse inference can be drawn because the evidence of PW.6 coupled with Ex.A.4 would be sufficient to prove that the plaintiff is son of D.21. It held that the judgment in OS.No.54 of 1976 does not operate as res judicata because the judgment and decree therein were not marked as exhibits in this suit. It held that the defendants did not dispute that plaintiff was aged twenty years on the date of filing of the suit, i.e., 16.09.1987 and as the suit was filed within 3 years from the date of his attaining majority, the suit is not barred by limitation. It held that since the 1st defendant, 21st defendant and Late Bhagavathi Prasad Thotraj are the sons of Narasimha Narayana Thotraj who died in 1977, they constitute Hindu Joint Family and the 21st defendant, who was a major , did not join them in execution of any of the sale deeds mentioned in the plaint, and therefore, the plaintiff is entitled to 1/4th share in the plaint schedule properties. 19. 19. Coming to Issue No.5 and additional issue, it held that the plaintiff had pleaded that his interest and his father’s interest had been completely ignored by 1st defendant and Narasimha Narayana Thotraj, and they had indulged in indiscriminate sales in derogation of their rights; that the defendants had ever contended that the sales were made by 1st defendant and his father Narasimha Narayana Thotraj as managers of the family to discharge antecedent debts; that a coparcener can challenge an allegation made by Karta; that an issue as to existence of legal necessity/benefit to an estate ought to have been framed by the trial court; that the burden of proof lies on the alienee to make proper enquiries as to legal necessity and benefit to the estate. It held that the defendants did not produce any cogent evidence to prove that the 1st defendant and his father sold away lands for legal necessity and benefit to estate. It also held that defendant Nos.2 to 7 did not state in their evidence that they made enquiries as to the legal necessity and benefit to the estate. It, therefore, held that the contentions raised by 1st defendant and Narasimha Narayana Thotraj cannot be sustained. 20. Challenging the said judgment, this appeal has been filed by the appellants only in relation to item Nos.1 and 2 of lot II of plaint ‘C’ Schedule. 21. There is no dispute that the permanent lease deed dt.26.11.1957 (Ex.B.5) was executed by Narasimha Narayana Thotraj in favour of the father of 3rd defendant by name Kodidasu Paradesi. It is also not disputed that Ex.B.7-sale deed dt.19.09.1964 was executed in favour of D.23, the wife of D.3, by Janardhana Thotraj, the brother of Narasimha Narayana Thotraj, in respect of lot II of plaint ‘C’ Schedule. In the plaint, the pleading of the plaintiff as regards item Nos.1 and 2 of lot II of plaint ‘C’ Schedule is as under: “In respect of Items (1) and (2) of Lot II of plaint ‘C’ schedule property, the aforesaid V.T. Narasimha Narayana Thotraj appears to have ignored the rights of the plaintiff’s father and executed a permanent lease deed dated 26-11-1957 in favour of the 3rd defendant. The said transaction is in derogation of the valid rights of the plaintiff in the said property.” 22. The said transaction is in derogation of the valid rights of the plaintiff in the said property.” 22. Thus, in the plaint there is no allegation that the sale in favour of D.23 under Ex.B.7 of lot II of plaint ‘C’ Schedule is not binding on the plaintiff as it was made without any legal necessity. 23. In PandurangMahadeo Kavade (dead) by his legal representative and others v. Annaji Balwant Bokil and others ( AIR 1971 SC 2228 ), the Supreme Court held that although an alienee from a Karta of a Joint Family will have to establish that the transaction in his favour is for legal necessity and, as such, binding on the minor members of a family, unless there is a pleading about lack of legal necessity and an issue framed in that regard by the trial court, it was unnecessary for the alienee to lead any evidence to prove that the transaction in question was in fact supported by legal necessity. It held:- “14. The second contention of the learned counsel for the appellants does not require any serious consideration. It is no doubt true that an alienee from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family. But in this case, both the trial court as well as the High Court have concurrently held that the appellants did not plead that Ex.78 is not binding on them on the ground that it has not been executed by their father Mahadev for legal necessity. It has been found both by the trial court as well as the High Court that in the absence of such a plea it was unnecessary for the plaintiff to have adduced evidence on this aspect. 15. Mr. Sarjoo Prasad pointed out that the plaintiff himself has specifically referred in the plaint to the finding given in Civil Suit No.80 of 1941 that Ex.78 has not been executed for legal necessity and as such was not binding on the appellants. In view of this specific statement, the counsel urged, it was the duty of the plaintiff to have adduced evidence to prove that Ex.78 had been executed by Mahadev for purposes binding on his sons, the appellants. We are not inclined to accept this contention of the learned counsel. In view of this specific statement, the counsel urged, it was the duty of the plaintiff to have adduced evidence to prove that Ex.78 had been executed by Mahadev for purposes binding on his sons, the appellants. We are not inclined to accept this contention of the learned counsel. The recitals relied on by the appellants in the plaint have been made with reference to the plaintiff’s plea that the decision in Civil Suit No.80 of 1941 is not binding on him and that the appellants cannot rely on the same. In answer to this plea it is insignificant to note that the appellants did not raise any objection that Ex.78 is not valid and binding on them as it has not been executed for legal necessity. On the other hand, their plea was that the decision in Civil Suit No.80 of 1941 and the finding recorded therein operate as res judicata. Apart from these circumstances we also find that no specific issue has been framed on this point. On the other hand, issue No.3 to the effect:- “Do defendants prove that the sale-deed, dated 9th January, 1926, is not binding upon them?” Clearly cast the burden on the appellants. They never asked for recasting the issues and they went to trial on the above issue. Here again, both the trial court and the High Court have recorded a finding that the sale deed is binding on the appellants. In view of these circumstances the finding of the trial court as well as of the High Court that it was unnecessary for the plaintiff to lead any evidence on this aspect is correct. In fact we find from the judgment of the High Court that a request was made by the appellants to frame an issue on the question of legal necessity and remit the case to the trial court. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejected.” 24. This proposition of law is not disputed by counsel for 1st respondent. The counsel for 1st respondent has also not placed on record any judgment taking a contrary view. 25. But this request was in our view rightly disallowed. Therefore, the second contention has to be rejected.” 24. This proposition of law is not disputed by counsel for 1st respondent. The counsel for 1st respondent has also not placed on record any judgment taking a contrary view. 25. Therefore, in view of the above decision of the Supreme Court, I am of the opinion that in the absence of any specific pleading by plaintiff as to absence of legal necessity for sale of lot II of plaint ‘C’ Schedule property under Ex.B.7 and in the absence of an issue framed as to existence of legal necessity by the trial court in that regard, it was not necessary for D.23 to lead any evidence as to existence of legal necessity for the sale of this item of property to her. The court below without noticing the above decision of the Supreme Court and lack of proper pleading by plaintiff and absence of issue on the aspect of legal necessity erred in holding that D-23 failed to prove the existence of legal necessity for Ex.B.7 transaction. 26. Therefore, the judgment of the trial court with regard to this aspect cannot be sustained. The appeal is partly allowed with costs and the judgment of the trial court insofar as it held that 1st respondent/plaintiff is also entitled to a share in item Nos.1 and 2 of lot II of plaint ‘C’ Schedule is set aside. 27. Miscellaneous applications, pending if any, shall stand closed.