Chandrasekara Naik vs Ishwara Bhat and Others

S. Marinuthu

Plaintiff is the appellant. Plaintiff filed the suit in O.S. No. 139 of 1987 before the Sub Court, Kasaragod for partition on the following gronds: Plaint B schedule property item No. 1 measuring 1.15 acres and item No. 2 measuring 33 cents along with yet another item were allotted as B schedule in Ext. B1 partition deed dated 1-2-1971 to the appellant, his father and brothers, who are respondents 4 to 6 (defendatns 5 to 7). At the time of Ext. B1 partition, appellant and his brothers, respondents 5 and 6 were minors. The father sold the plaint items to respondents 1 to 3 (defendants 1 to 3) representing minors, namely the appellant and respondents 5 to 6 under Ext. A1 dated 26-10-1973, detrimental to their interest. There was no necessity to sell the shares of the minors, the sale was not for the welfare of the family nor was it for discharging the antecedent debts. And the value of the property sold for a sum of Rs. 7,000/ - is too low. Therefore, the appellant is entitled for partition of his one fourth share in the suit property being a co-owner.

Suit was resisted by respondents 1 to 4 on the ground that the sale deed was executed for the family necessity, that there was a debt payable by the family, that they have effected improvements in the property and that the appellant is not entitled to a partition ignoring Ext. A1 sale deed.

The trial court dismissed the suit holding Ext. A1 is a true and genuine document and that has been executed by the father for the welt are and legal necessity of the family.

Learned counsel appearing for the appellant would contend that practically there was no legal necessity or any benefit to the family estate or any antecedent debt of the family to be discharged, to sell the property. Further, when the appellant is a co-owner of the property, allotted to him along with his father and brothers (respondents 4 to 6), so far as the sale deed Ext. A1 is concerned, it may bind the share of the father. His brothers and the purchasers, respondents 1 to 3, become the co-owners of the property and in that circumstance, the suit for partition will lie. Further, non-examination of any of the creditors to the family is sufficient to conclude that the necessity, such as to discharge the antecedent debt the property was sold, is not established. Further, the sale consideration of Rs. 7000/- for 1.38 acres with a building is too low and that also indicates that the property was sold not for the benefit of the family.

In support of their respective submissions, both sides placed reliance on the following citations: The Rajasthan High Court in Girdhar Singh and Another Vs. Anand Singh and Others, held thus:

In a ease where any immovable property of minor members of a Joint Hindu Family is sold by a natural guardian in order to pay off debts of the father or minor plaintiffs, it is not only necessary to prove convincingly the existence of such debts, but it has also to be proved that demands were made by the creditors and there was pressing need for the payment of such debts.

The Supreme Court in Ratnam Chettiar and Others Vs. S.M. Kuppuswami Chettiar and Others, has held thus:

"Where, however, a partition effected between the members of the Hindu Undivided Family wich consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place.

In case reported in Krishnarajan v. Doraswamy Cheltiar, 1966 KLT 1129 this court has held thus:

In Hindu Law a father in his capacity as manager can validly sell or mortgage the family property including the son''s interest either for family necessity or for the benefit of the estate or for the discharge of his own antecedent debts which are not tainted with illegality or immorality. In such cases when the alienation is impeached by the sons the burden of proof is one the alienee to show that there was in fact legal necessity or benefit to the family or the alienation was for discharging antecedent debts justifying the alienation or that the alienee honestly satisfied himself after proper and bona fide enquiries as to their existence.''

The Supreme Court in Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, has held thus:

Legal necessity does not mean actual compulsion. It means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee; by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals got to his aid with greater force and the court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.

This court in a case reported in Vusudevan v. Ponnukutty (1983 KLT SN 17 28) has held thus:

In the Hindu Joint Family, it is for the Manager to decide how the situation that has arisen at a particular time should be met. It is not for the court in retrospect to evaluate and weigh things in golden scales and substitute its own wisdom and decide as to whather the necessiry could have been met in any other way. Once the legal necessity is made out, it is certainly a matter for the decision of the managing member, whether the money should be raised by way of mortgage or sale.

A Full Bench of this court in Mathew v. Ayyappankutty (1962 KLT 61 (FB)) has held thus:

The next case is of an alienation coupled with transfer of possession. The tarwad having lost the property has to regain the same by a suit for its recovery. Every suit has its own period of limitation prescribed by the law of limitation. Section 28 of the Limitation Act goes further and says that the right to the property shall be extinguished at the expiry of the period prescribed for a suit for its recovery; and as a consequence courts have held that the title will then vest in the alienee in possession. It then follows, as a corollary, that, if possession passed with the alienation, the tarwad has necessarily to institute a suit fur recovery of the property within time allowed by law.

The Full Bench has relied on the earlier decisions of the Privy Council and the Madras High Court, which can be referred to hereunder. The Privy Council has held that in such cases, the suit cannot be for possession merely. The cause of action is not the transfer of possession; and therefore the suit be to set aside the alienation itself with a prayer for possession as a consequential or acessory relief. In Rajeswara Dorai v. Arunaelialan Chettiar (ILR 38 Mad. 321) the principle is in the following words:

Section 28 of the Limitation Act...... shows that it is only where a person is under a necessity to institute a suit for possession of the property to which he lays a claim (and where the time for instituting such suit has lapsed) that this title to the property is extinguished. But if he is himself in possession and it is only his right to sue as plaintiff to set aside or declare invalid the deed or title set up by another man.

On the footings of the above principle of law, the contentions of both sides can be examined. As I have pointed out above, it is the submission of the learned counsel for the appellant that there was no legal necessity for executing Ext. A1 sale deed. And it was not for the benefit of the family.

Learned counsel further contended that the evidence would go to show that there was a debt to one Subaraya Bhat, who was admittedly not examined and therefore it was not established by respondents 1 to 4 that the sale was for discharging the antecedent debt. Further, the appellant, his father and brothers were allotted the suit property along with yet another item in Ext. B1 partition as co-owners. There itself their shares are fixed and therefore as a co-owner, the appellant can file the suit for partition and in such situation there is no necessity for setting aside Ext. A1 sale deed or to seek for recovery. No doubt, the above contentions were opposed by the learned counsel for the contesting respondents 1 to 4. Learned consel for the contesting respondents would submit that a reading of Ext. B1 would to show that the property was jointly allotted to the appellant, his father and two of his brothers (were minors then). One of the items allotted to them in Ext. B1 was already sold by the father on behalf of the minors under Ext. B2. That is not challenged by the appellant. A reading of Ext. B2 would go to show that the property measuring 70 cents was sold for a sum of Rs. 500/-. There the reasons stated are that the property is far away, that it is a dry land, no sufficient income is available from the said property, etc. The reasons stated in Ext. Al are that the property is away, building therein could not be repaired and it is for discharging the family debt and for the benefit of the family, and the property was sold for a sum of Rs. 7,000/-. The price is reasonable and it is for the benefit of the family. Therefore, the suit for partition will not lie in the light of the principles laid down by the Privy Council, this court and the Madras High Court stated supra. Learned counsel for the contesting respondents also placed reliance on the latest decision in this aspect reported in Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, . The principle therein is that when a property of the minor has been alienated by the natural guardian, the document is voidable one and the minor on attaining majority within the period of limitation can institute the suit to set aside the same.

Learned counsel appearing for the appellant, on the other hand, referred to the judgment of the Madhya Pradesh High Court in Lalita James v. Ajit Kumar, AIR 191 MP 15) which has followed the earlier decision of the Full Bench of that court reported in Ramdayal Vs. Manaklal, . There the principle laid down is as follows:

A purchaser from co-owner of a portion of undivided property is not entitled to possession of any particular part of joint property. His right, if any, would be to joint ownership or co-ownership and not to exclusive ownership of any particular part of joint property. Purchaser is only entitled to enforce a pnnition of joint estate and nothing more.

The principle in this decison is that a purchaser from co-owner of the uedivided property can rightly file a suit for partition without any further relief. In the present case on hand, as I have noticed above, the principle of law involved is entirely different. Therefore, the above judgment of the Madhya Pradesh High Court does not extend its hand to the help of the appellant. I carefully examined the submissions of both the learned counsel on the prinriple of law stated supra. On my examination. I am of the clear view that suit for partition will not lie. for. Ext. B1 is clear that the allotment to the appellant, his father and his brothers is a joint allotment. So the lather being the Manager or Karanavan can mortgage or sell the property for the family necessity or for the benefit of the family estate or for the discharge of antecedent debts which arc not tainted with illegality or immorality. However, a sale by the father can be questioned by the minors after attaining majority within the period of limitation. In case the property was sold without obtaining sanction of the court, such sale can be avoided by the minors as void and there arises no necessity for setting aside the sale when, possession is not passed to the alienee. But when possession is passed to the alienee on the date of sale, necessarily court has to be approached to set aside the sale. Thus viewed from any angle, in the instant case, as I have pointed out above, the suit has to be one for setting aside the sale, recovery of possession, etc. That alone will be a comprehensive suit for proper adjudication. The contentions whether there was a family necessity or the benefit of the family estate or an antecedent debt to he discharged and whether the price of the property sold is too low, etc., need no consideration in this suit. Those aspects can be rightly taken up for decision in the comprehensive to be filed. In these circumstances. I have to necessarily uphold the judgment and decree delivered by the court below disallowing the suit.

In the result, the appeal is dismissed and the appellant can file a comprehensive suit for the purposes stated supra, if he chooses so.