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2017 DIGILAW 3155 (MAD)

B. Sugumar v. Karuppaiya Pillai

2017-09-14

R.M.T.TEEKAA RAMAN

body2017
JUDGMENT : R.M.T. Teekaa Raman, J. 1. The unsuccessful plaintiffs are the appellants herein. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court. 2. The plaintiffs filed the suit, in O.S. No. 540 of 1996, before the learned Subordinate Judge, Tiruchirappalli, for the relief of declaration to declare the decree passed in O.S. No. 12 of 1983, on the file of the Sub Court, Pudukkottai, in respect of 1st Item of the suit property, as illegal, void and not binding on them and to pass a preliminary decree dividing the suit properties into three shares by metes and bounds and to allot two shares and deliver possession of the same to them. 3. After contest, the learned Subordinate Judge, Tiruchirappalli, by Judgment and Decree, dated 10.10.2002, dismissed the suit. 4. Aggrieved by the Judgment and Decree passed by the learned Subordinate Judge, Tiruchirappalli, the plaintiffs preferred an appeal, in A.S. No. 5 of 2003, before the learned Additional District Judge, Fast Track Court No. II, Tiruchirappalli. 5. After contest, the learned Additional District Judge, Fast Track Court No. II, Tiruchirappalli, by Judgment and Decree, dated 21.02.2005, dismissed the appeal with costs and confirmed the Judgment and Decree passed by the learned Subordinate Judge, Tiruchirappalli. 6. Aggrieved by the dismissal of the first appeal by the Lower Appellate Court, the plaintiffs have preferred the present second appeal. 7. The brief averments of the plaint that are necessary to decide this appeal are as follows: The plaintiffs 1 and 2 are the son and daughter of the second defendant. They are members of Hindu Joint Family and the second defendant is the Kartha of the Joint Family. The first defendant is the holder of a Decree in O.S. No. 12 of 1983, on the file of the Subordinate Court, Pudukkottai. The suit in O.S. No. 12 of 1983 was filed by the first defendant for specific performance of sale of the 1st Item of suit property held by the second defendant as father of the plaintiffs. In the said suit, it is stated that the defendants 1 and 2 have entered into a sale agreement in respect of 1st Item of suit property. The second defendant has purchased the same in his name. The minor plaintiffs were taken care of by the second defendant as he was the Kartha of the joint family. In the said suit, it is stated that the defendants 1 and 2 have entered into a sale agreement in respect of 1st Item of suit property. The second defendant has purchased the same in his name. The minor plaintiffs were taken care of by the second defendant as he was the Kartha of the joint family. On 12.04.1972, a partition was taken place between the second defendant and his brothers and in the said partition, the 1st Item of the suit property was allotted to the second defendant. The suit properties of O.S. No. 12 of 1983 are ancestral properties. The 1st Item of the suit property in O.S. No. 12 of 1983 is in exclusive possession of the second defendant. Therefore, the plaintiffs are entitled to 2/3rd share in the said properties. Hence, the decree passed in O.S. No. 12 of 1983 in respect of 1st Item of suit property is illegal, void and not binding upon them. On 12.04.1972, in respect of other properties also, partition was took place between the second defendant and his brothers. Since each of the plaintiffs are having shares in the suit properties, the decree in O.S. No. 12 of 1983, in respect of 1st Item of the suit property is illegal, void and not binding upon them. Therefore, the plaintiffs filed the suit seeking the relief as stated above. 8. The brief averments of the written statement filed by the third defendant that are necessary to decide this appeal are as follows: The plaintiffs are not entitled to the relief sought for in the plaint. It is incorrect to state that the plaintiffs and the second defendant are members of Hindu Joint Family and the second defendant is managing the joint family as Kartha. The first defendant is the holder of a decree in O.S. No. 12 of 1983, on the file of the Sub Court, Pudukkottai. The first defendant purchased the suit properties through Court. It is incorrect to state that the second defendant has not conducted the case properly. It is incorrect to state that on 12.04.1972, under a partition, the 1st Item of the suit property was allotted to the second defendant and in which, the plaintiffs are having 2/3rd shares. The reliefs sought for by the plaintiff are not acceptable. It is incorrect to state that the second defendant has not conducted the case properly. It is incorrect to state that on 12.04.1972, under a partition, the 1st Item of the suit property was allotted to the second defendant and in which, the plaintiffs are having 2/3rd shares. The reliefs sought for by the plaintiff are not acceptable. Since decree has been passed in respect of major portions of the suit properties, the Trial Court has no jurisdiction to deal with the present suit. Therefore, the suit is liable to be dismissed. 9. The brief averments of the additional written statement filed by the third defendant that are necessary to decide this appeal are as follows: The plaintiffs are not entitled to the relief sought for in the plaint. After purchasing the 1st Item of the suit property from the first defendant for valuable consideration, he has reclaimed and brelled about 9 Acres of land and made it fit for cultivation and he has deepened three Wells of a cost of Rs. 2,00,000/- during 1996-1997. He has also raised Mango and Guava Trees numbering 700 and spent a sum of Rs. 70,000/-. Further, he has also raised 300 Coconut Trees at a cost of Rs. 30,000/-. He has also constructed side Walls in respect of one of the Wells at a cost of Rs. 50,000/- in 1998. In addition to that he has also laid a foundation for a residential building, which has been raised upto basement level at a cost of Rs. 85,000/- during 2000. As such, he has invested a sum of Rs. 4,35,000/- in respect of 1st Item of suit property. He and his predecessor-in-title have been in possession of the suit property for more than 12 years before the suit. The plaintiffs have been ousted from the possession of the suit properties. He has also perfected his title by adverse possession. Hence, the plaintiffs have to be non-suited and their suit is liable to be dismissed. 10. Based upon the above pleadings, the Trial Court had framed as many as many as eight issues for consideration. 11. On the side of the plaintiffs, the first plaintiff was examined as P.W. 1 and marked Exs. A1 to A6 and on the side of the defendants, the third defendant was examined as D.W. 1 and marked Exs. B1 to B5. 12. 11. On the side of the plaintiffs, the first plaintiff was examined as P.W. 1 and marked Exs. A1 to A6 and on the side of the defendants, the third defendant was examined as D.W. 1 and marked Exs. B1 to B5. 12. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiffs are not entitled to the reliefs sought for and hence, dismissed the suit. 13. As stated supra, the unsuccessful plaintiffs have preferred first appeal in A.S. No. 5 of 2003, before the learned Additional District Judge, Fast Track Court No. II, Tiruchirappalli. 14. After contest, the learned Additional District Judge, Fast Track Court No. II, Tiruchirappalli, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Subordinate Judge, Tiruchirappalli. 15. Aggrieved by the dismissal of the suit as well as first appeal, the plaintiffs are before this Court. 16. Pending Appeal, as the suit property was purchased by R. 4, he was impleaded as fourth respondent. 17. At the time of admission, the following substantial questions of law were framed for consideration: "(1) Whether the decree and judgment of the courts below have to be set aside as it has wrongly placed the burden on the appellants? and (2) Whether the alienation made by the second defendant is for the family benefit or necessity?" 18. As stated supra, the unsuccessful plaintiffs are the appellants herein. The plaintiffs have filed the suit for declaration that the decree passed in O.S. No. 12 of 1983 by the Sub Court, Pudukkottai, in respect of Item No. 1 of the suit property is void not binding upon the plaintiffs and for preliminary decree of partition in respect of the suit property on the ground that the above said suit in O.S. No. 12 of 1983 for specific performance of sale of agreement filed by the first defendant against the second defendant (father of the plaintiffs) is not binding upon them and the property is a joint family property. As a co-parcenar, the father has no right to sell the property and there is no legal necessity for family benefit. As a co-parcenar, the father has no right to sell the property and there is no legal necessity for family benefit. In this suit, the second defendant (father of the plaintiffs) remained ex-parte while the first defendant, who is the agreement holder of the Item No. 1 of the suit property with the second defendant and subsequently obtained Sale Deed from the Court and he also remained ex-parte. The third defendant P. Sugumar, who is a purchaser from the first defendant, even before filing of the suit, has filed written statement contending that the second defendant is the Karta of the family and there was a loan in the agricultural development bank and land development bank for the purpose of cultivation of the Item No. 1 of the suit property and in order to discharge that amount, the second defendant has entered into an agreement of sale with the first defendant and part payment has also been made. Since the outstanding loan amount repaid by the second defendant at the time of the agreement is found to be low, while an enquiry with the agricultural development bank and land development bank, the outstanding amount to be paid towards both the loans are more than the amounts mentioned in the suit sale agreement and hence, the first defendant called upon the second defendant to accept the balance amount and as he did not turn up, the first defendant has filed the suit in O.S. No. 12 of 1983 on the file of Sub Court, Pudukottai, for specific performance of the agreement which was hotly contested by the second defendant, and finally ended in favour of the first defendant and as the second defendant has failed to execute the Sale Deed, the first defendant has moved the execution petition and through Court, he obtained the Sale Deed. Ten years thereafter, in the year 1993, the third defendant had purchased the property and made several developments by investing several lakhs of rupees. The second defendant has set up his minor son and filed the suit in order to get additional amount from the third defendant and prayed for dismissal. 19. Pending trial, as the plaintiffs attained majority on discharge of their mother, the plaintiffs were brought on record. The second defendant has set up his minor son and filed the suit in order to get additional amount from the third defendant and prayed for dismissal. 19. Pending trial, as the plaintiffs attained majority on discharge of their mother, the plaintiffs were brought on record. Mother was discharged and they were declared as major and first plaintiff examined himself as P.W. 1 and marked documents as stated above while the third defendant examined himself as D.W. 1 and marked Exs. B.1 to B.5. 20. The trial Court, on consideration of both oral and documentary evidence, has come to conclusion that the agreement of sale between the second defendant and the first defendant is to discharge the outstanding loan with the agricultural development bank is for the family benefit and it was duly contested by the second defendant herein and also observed that decree in the said suit is binding upon the plaintiffs herein and dismissed the suit. The Lower. Appellate Court also categorically held that it is handy work of the second defendant in institution of the suit and the Sale Deed executed by the Sub Court, Pudukkottai, in O.S. No. 12 of 1983 is binding upon the plaintiffs and rejected the appeal by confirming the order of the trial Court. Hence, the Second Appeal. 21. The above Second Appeal has been admitted on the above said substantial questions of law:- 22. Substantial question of law No. 2 Whether the alienation made by the second defendant is for the family benefit or necessity.? 23. As stated supra, the first plaintiff examined himself as P.W. 1. During the cross examination, he was specifically confronted with the recital in Ex. A.2, judgment in O.S. No. 12 of 1983, wherein, the recitals of the agreement of sale entered between the second defendant/father of the plaintiffs and the first defendant, the vendor. The recitals of the agreement as extracted in Ex. A.2 read as follows:- "He has agreed to sell the properties to the plaintiff on 15.07.82 for a sum of Rs. 1,35,000/- and he received a sum of Rs. 5000/- as part payment of the sale price. He has agreed to receive the balance at the time of the execution of the sale deed, deducting the amounts payable by the defendant to the Land Development Bank and to the Co-operative Agricultural Bank at Viralimalai. 1,35,000/- and he received a sum of Rs. 5000/- as part payment of the sale price. He has agreed to receive the balance at the time of the execution of the sale deed, deducting the amounts payable by the defendant to the Land Development Bank and to the Co-operative Agricultural Bank at Viralimalai. The amounts payable by the defendant as roughly estimated by him was Rs. 35,000/-. ..................... The plaintiff paid a sum of Rs. 39000/- towards the said Loan as part payment. Likewise the plaintiff learnt that the amount due to the Co-operative Agricultural Bank was Rs. 15352.48." 24. The plaintiffs have not answered the above question. However, evaded by saying that the plaint was signed by their mother. The suit was instituted by the mother while the plaintiffs were during the minority and on attaining majority, the mother was discharged. The plaint was signed and verified by the mother. Though a specific question has been put to P.W. 1 regarding the recital in the agreement entered into between the second defendant and the first defendant which has resulted in O.S. No. 12 of 1983 which was decreed in favour of the first defendant and now, a prayer is made by the plaintiffs to set aside the decree. In other words, the prayer is to the effect declaring that the decree in O.S. No. 12 of 1983 is not binding upon the plaintiffs. Admittedly, the mother of the plaintiffs, who had instituted the suit as a natural guardian, has not entered into the witness box also assumes significance. P.W. 1 was confronted in the cross-examination regarding the address of the second defendant, though the plaintiffs have averred that their father is living separately and the plaintiffs and their mother are living separately. P.W. 1 has admitted that there is no divorce between the mother of the plaintiffs and her husband, the second defendant. Curiously, the plaintiffs have chosen to give the business address of the second defendant and not disclosed the residential address of the second defendant. P.W. 1 has admitted that there is no divorce between the mother of the plaintiffs and her husband, the second defendant. Curiously, the plaintiffs have chosen to give the business address of the second defendant and not disclosed the residential address of the second defendant. On this point, viz., non disclosure of the residential address of the second defendant in the plaint was confronted with P.W. 1, he has evaded to answer and he has categorically admitted that the Advocate, who had conducted the case on behalf of his father viz., second defendant in O.S. No. 12 of 1983 is also an Advocate representing him in this case also. Though not the above factor makes any impact individually however a cumulative reading of all these three factors caused serious doubt as to the bona fide nature of the suit being instituted after thirteen years of the passing of the decree, this Court is of the considered view that the concurrent finding given by both the Courts below that the plaintiffs have instituted the suit at the instigation of the second defendant/father of the plaintiffs, is tainted with mala fide intention is found to have force and the same is hereby concurred. In view of the specific recitals in the agreement of sale entered into between the second defendant and the first defendant, as extracted above from Ex. In view of the specific recitals in the agreement of sale entered into between the second defendant and the first defendant, as extracted above from Ex. A.2, judgment in O.S. No. 12 of 1983 on the file of Sub Court, Pudukkottai, both the Courts below have concurrently held that on the date of entering into the agreement of sale, there is a pre-existing debt borrowed by the second defendant/father of the plaintiffs from the land development bank and primary agricultural bank to the extent indicated above in the judgment, 'besides, there was an undertaking by the purchaser namely first defendant herein that he has to pay the outstanding loan amount to the land development loan and then has to pay the balance of the amount to the vendor namely, the second defendant (father) and the outstanding loan amount has been duly paid by the second defendant and those receipts have been, filed in the above said suit in O.S. No. 12 of 1983 as exhibits and both the Court also taken note of the discharge of the agricultural loan and land loan availed by the second defendant on the suit property as a part payment of the suit sale agreement have rendered a positive finding that the first defendant herein has made the payment pursuant to the sale agreement entered into between the parties and accordingly, decreed the suit. The suit is fully contested by the second defendant herein as could be seen from Ex. A.2, judgment copy in the suit in O.S. No. 12 of 1983. 25. In the decision reported in (1984) 97 L.W. 217 : 1984 MLJ 66 [Sampoorna Ammal Vs. Asokan and others], this Court has discussed about the "antecedent debt" which is as follows:- (i) "Antecedent debt" means a debt which is antecedent in fact as well as in time. In other words the debt must be independent of and not part of the transaction impeached. A borrowing made on the occasion of the execution of a mortgage cannot be said to be an antecedent debt. It is equally clear that an alienation by the father in a Hindu joint family neither for legal necessity nor for the payment of an antecedent debt does not bind the son's interest in the property. The burden of proof is on the alienee. It is equally clear that an alienation by the father in a Hindu joint family neither for legal necessity nor for the payment of an antecedent debt does not bind the son's interest in the property. The burden of proof is on the alienee. (ii) It is trite in law that where a manager or a father in the Hindu joint family alienates joint family property, the alienee is bound to inquire into the necessity for the sale and the burden lies on him to prove either that there was legal necessity in fact or the alienation by the father was for the discharge of an antecedent debt or that he has made proper and bona fide enquiry as to the existence of such necessity. (iii) Equally, it is also clear that the purchaser is not bound to see that the money advanced by him was actually applied to meet the necessity. This is on the principle that the purchaser can rarely have the means of having control and directing the actual application of the money. It is also equally well-settled that where the existence of family necessity is established the manner in which it should be met and the manner of the application of the money for the purpose of meeting the necessity is a matter entirely for the manager to decide and so long as he does it, honestly in the interests of the family the fact that another person in the position of a manager could have or would have made a better arrangement for meeting the necessity is not an argument available to invalidate the actual arrangement made by the manager. (iv) Of course, if the challenge to the alienation is on the ground that the "antecedent debts" incurred by his father, were tainted by "immorality", it is for the son to prove that the antecedent debts were immoral and that the purchaser had notice that they were so tainted." 26. It remains to be stated that during trial, the third defendant has successfully demonstrated the existence of the debt on the suit property having been availed the loan for the development of the land from the land development bank and primary agricultural bank as evidenced under Ex. B.2 and further, in discharge of the outstanding loan, the specific clause has been incorporated in the suit sale agreement as extracted in Ex. B.2 and further, in discharge of the outstanding loan, the specific clause has been incorporated in the suit sale agreement as extracted in Ex. B.2 and further, in pursuance of the discharge of the outstanding loan, the first defendant, being an agreement holder, has also paid the amount to the bank and obtained valid discharge of the pre-existing loan namely, the antecedent debt on the suit property and the same is also marked as exhibit in that suit which has resulted in decreeing the specific performance suit against the second defendant. It is also seen from Exs. B.1, B.2 and B.3 that after the decree in O.S. No. 12 of 1983, the second defendant has not executed the Sale Deed and hence, execution proceedings have been initiated and consequently, the Court has executed the Sale Deed in favour of the first defendant which would go to show that it is a fully contested suit and there is an antecedent debt for the legal necessity and family benefit, the suit sale agreement was entered into and has been sold in pursuance of the suit decreed by the Court and therefore, on factual position, both the Courts below have come to a conclusion that the alienation made by the second defendant is for the family benefit and for the necessity does not warrant any interference by this Court and the substantial question of law No. 2 is held against the appellants herein. 27. Substantial question of law No. 1 Whether the decree and judgment of the Courts below have to be set aside as it has wrongly placed the burden on the appellants.? 28. As discussed in the preceding paragraphs, following the decision of this Court reported in (1984) 97 L.W. 217 : 1984 MLJ 66 [Sampoorna Ammal Vs. Asokan and others], the burden of proof to prove the existence of antecedent debt is upon the alienee and whether he has conducted an enquiry as to the family necessity, from the evidence adduced before the trial Court, both the Courts below have concurrently held that there is a family necessity resulted in entering into an agreement of sale has been duly discharged by the third defendant by documentary evidence Exs. A.2, B.1, B.2 and B.3. A.2, B.1, B.2 and B.3. Thereafter, whether that amount has been utilized by the second defendant/father for immoral purpose, the burden lies upon the plaintiffs, except mere oral assertion that the amount is not utilized for the family benefit and no other evidence is let in by the plaintiffs, both the Courts below observing the fact that a mere assertion made by P.W. 1 that his father was living separately is not believable and also commented upon the official address given in the plaint for the second defendant/father and non mentioning of the residential address of the father and also the fact that mother has not entered into the witness box to speak about the alleged strained relationship between the second defendant/father and the mother, taking note of all these factors, this Court finds that the plaintiffs have miserably failed to prove the plea of immorality on the part of the second defendant. It remains to be stated that on consideration of both oral and documentary evidence, both the Courts below have concurrently held that the Sale Deed executed pursuant to the decree in O.S. No. 12 of 1983 for ten years, the plaintiffs have not taken any steps and only in the year 1993, the first defendant, who had obtained Sale Deed through Court process in execution of the specific performance decree had sold the property to the third defendant and thereafter, the plaintiffs have filed the suit through the mother seeking such a prayer for declaration of the suit decree is not binding upon them is only a hand work of the second defendant/father, who remained ex-parte and on entirety of the circumstances have clearly held that the Sale Deed executed in pursuance of the decree in O.S. No. 12 of 1983 is binding upon the plaintiffs and both the Courts below have appraised burden of proof on the respective parties and held that the defendants have initially discharged the burden of proof on the shoulder. The nature of the debt being antecedent debt and also for the legal necessity and however, the plaintiffs have failed to prove the amount sale consideration has been spent by the father for immoral purposes have not committed any error and hence, the substantial question of law No. 1 is held against the plaintiffs. Accordingly, both the substantial questions of law are answered in negative against the plaintiffs. Accordingly, both the substantial questions of law are answered in negative against the plaintiffs. The offshoot of the discussion leads to the irresistible conclusion that the second appeal is devoid of merits and the same is liable to be dismissed. 29. Before departing regarding the validity of the specific performance deed Ex. A.2, it is relevant to refer the following decisions:- (i) In the decision reported in (1996) 8 SCC 54 [Sri Narayan Bal and others Vs. Sridhar Sutar and others], the Hon'ble Apex Court has held as follows:- "Under Section 8 a natural guardian of the property of the Hindu minor, before he disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor's undivided interest in the joint family property, as provided under Sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in-view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property." (ii) In the decision reported in (2008) 3 Supreme Court Cases 87 [Bhanwar Singh Vs. Puran and others], the Hon'ble Apex Court has held that having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of B would succeed to his interest as tenants-in-common and not as joint tenants. Therefore, the properties developed upon them per capita and not per stirpes, each one of them was entitled to alienate their share, particularly when different properties were allotted in their favour. In a case of this nature, the joint coparcenary did not continue." (iii) In the decision reported in 2010-5-L.W. 329 [M. Kumaran and another Vs. Therefore, the properties developed upon them per capita and not per stirpes, each one of them was entitled to alienate their share, particularly when different properties were allotted in their favour. In a case of this nature, the joint coparcenary did not continue." (iii) In the decision reported in 2010-5-L.W. 329 [M. Kumaran and another Vs. J. Rajesh (Minor) and another], this Court has held as follows:- "When a divided son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self acquired property of the father, they become absolute owners of their respective shares and they can deal with the properties exclusively excluding their sons. The son of a divided son does not get right from his father by birth who is excluded by virtue of Section 8 of the Act and he cannot become a coparcener in the property in question. When a Hindu died intestate, the first class heirs namely, the heirs mentioned in Schedule-I, namely, son, daughter, widow and brother shall take equally to the exclusion of the other heirs, including son's son." (iv) In the decision reported in 2016-4-L.W. 309 [Uttam Vs. Saubhag Singh and Ors.], the Hon'ble Supreme Court has held as follows:- "When a male hindu dies after commencement of Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary. After joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants." and hence viewing from any stand point, the decree in Ex. A.2 specific performance suit is valid and binding on the plaintiffs herein. In the result, the second appeal is dismissed and the judgment and decree dated 21.02.2005, passed by the learned Additional District Judge, Fast Track Court No. II, Tiruchirappalli, in A.S. No. 5 of 2003, confirming the Decree and Judgment dated 10.10.2002 passed by the learned Subordinate Judge, Tiruchirappalli, in O.S. No. 540 of 1996, is confirmed. However, there shall be no order as to costs. The connected miscellaneous petition is closed.