Kempamma and Others vs Muniswamy M.

K. Sreedhar Rao, J.—The Appellants-Plaintiffs filed a suit in OS No. 181 of 1990 on the file of Additional City Civil Judge, Bangalore for cancellation of the sale deed Ex.P.4 dated 16.11.1980 and seek mandatory injunction for removal of the structures and delivery of possession from the Respondent-Defendant.

In this appeal the Appellants would be referred as Plaintiffs and Defendant as Respondent for convenience as ranked in the suit.

Chikka Kempaiah and B. Kempaiah are two brothers and they constituted a joint family. Plaintiffs 1 to 4 are the wife and children of B. Kempaiah. The Plaintiffs 5 to 9 are the widow and sons of Chikka Kempaiah. The Plaintiffs 4, 6 to 9 are minors on the date of suit. The family owned agricultural lands to an extent of 5 acres and odd and house sites including the suit property. According to Plaintiffs Chikka Kempaiah and B. Kempaiah sold substantial extent of agricultural lands and that family as on the date of suit retained 1 acre 10 guntas of agricultural land bearing Sy. Nos. 47/7 and 50/2 of Amruthahalli Village. But according to Defendants all the agricultural lands have been sold. The controversy whether the family retained any land is irrelevant for adjudication in this proceeding. The suit site is sold in favour of the Defendant under registered sale deed Ex.P.4.

The Plaintiffs contend that the sale made under Ex.P.4 is not an out and out sale, Ex.P.4 is executed only as a security for the loan borrowed. The Plaintiffs offered to discharge the loan amount. The Defendant refused to receive the money and refused to reconvey the property. The Plaintiffs further contend that the sale made under Ex.P.4 is not for any legal necessity nor for the benefit of family, as such the sale does not bind them. The Plaintiffs also plead that the sale deed Ex.P.4 is vitiated by fraud.

The Defendant denies contentions of fraud, and that Ex.P.4 is executed only as collateral security for the loan borrowed. The Defendant asserts that the sale is indeed for the family necessity and pray for dismissal of the suit.

In the first instance, the trial Court found that the Plaintiffs have failed to prove that the sale deed Ex.P.4 is vitiated by fraud and failed to prove that Ex.P.4 is executed only as a collateral security. Thus dismissed the suit. In appeal this Court found that an issue regarding legal necessity is not framed. Hence remanded the matter for fresh disposal after giving finding on the plea of legal necessity.

The trial Court after remand found that the sale is for legal necessity and confirmed the dismissal of suit. Hence this appeal.

Sri Yoga Narasimha learned Counsel for the Defendant canvassed the following reasons to support the judgment and decree of the trial Court.

1) The plea of want of legal necessity, fraud and the sale is only as a security for the loan borrowed are mutually inconsistent and cannot co-exist. In this regard relied on the ruling of the Supreme Court in Arundhati Mishra v. Sri Ram Charitra Pandey 1994 2 SC 29 and Prem Raj Vs. D.L.F. Housing and Construction Pvt. Ltd. and Another, .

2) The sale is made for discharge of untainted family antecedent debt therefore the sale is very much for legal necessity and binds the Plaintiffs on the ground of pious obligation.

3) The Plaintiffs had filed O.S. 182 of 1990 on the file of City Civil Judge, Bangalore challenging the sale of an agricultural land by B. Kempaiah and Chikka Kempaiah along with their mother. On the similar and identical grounds urged in this suit. The said suit is dismissed. The appeal in RFA 165 of 2000 is also dismissed confirming the validity of sale of the land made in the year 1973.

The contention that the findings in OS 182 of 1990 and RFA 165 of 2000 should bind the Plaintiffs in this proceeding is untenable. The subject matter and facts and circumstances relating to sale are different. The findings in the said proceedings does not act as estoppel or as res judicata. Therefore the decision in RFA 165 of 2000 is in no way applicable to the facts of the case.

The contention of Sri Yoga Narasimha, that the alternative pleas of fraud, want of legal necessity and the sale only as a collateral security are mutually cannot co-exist is an untenable contention. Each of the pleas are distinct, mutually exclusive based on different set of facts and rights. At any rate, the plea of want of legal necessity is a distinct alternative and tenable plea in law. The evidence adduced by the Plaintiffs discloses that Chikka Kempaiah and B. Kempaiah had borrowed a loan of Rs. 300/- dated 23.3.1979. Further they executed an agreement to sell a portion of the suit property under Ex.D.2 dated 24.9.1979. Again agreed to sell the remaining portion of the suit property under Ex.D.3 dated 12.11.1979 for a total consideration of Rs. 3,000/-.

It is in the evidence that Chikka Kempaiah and B. Kempaiah wanted to sell the portion of the property covered under Ex.D.3 to a stranger for a lesser amount of Rs. 1,000/-. The elders of the village intervened in the matter prevailed on the Defendant to purchase the remaining portion of the suit property covered under Ex.D.3 for a fair market price. In this regard Sri Yoga Narasimha argued that in the context of such evidence it cannot be said that Defendant played fraud. On the other hand the facts and evidence supports the bonafides of the Defendants and validity of transaction.

On the question of legal necessity evidence is let in the second round of trial after remand. The witnesses speaking for the Plaintiffs have stated that the family had sufficient income and there was no need to borrow loan and no need to sell the properties.

The DW.1 per contra in the examination-in-chief recorded on 17.7.2002 deposed to the following effect.

The land in Sy. No. 50/2 is in possession of my brother Beerappa since the year 1978. Earlier in that land the said Kempaiah and Chikkakempaiah were growing Raagi. My brother Beerappa had planted flowering plants in that land. The said land is presently a barren land. In the middle of Sy. No. 50/1 and 50/2 there is a well. The water of that well is taken from my brother Beerappa. The said Kempaiah and Chikkakempaiah had not installed pump set to this well and they were not drawing water through this pump set. They were not growing crops from the said well water. At that time said Kempaiah and Chikkakempaiah had no source of income. They were leading life by borrowing money from others.

The DW.4 in the examination-in-chief recorded on 24.7.2002 has deposed to the following effect:

I know the Plaintiffs and Defendants, since my child hood. I was born in Amruthahalli. About 20 or 30 years ago deceased Kempaiah and Chikkakempaiah were doing coolie work. I was also doing coolie work in garden lands. I was working in the garden lands of Chikadadappa, Munigurappa and others. In those lands the said Kempaiah and Chikkakempaiah were also doing coolie work. The said Kempaiah and Chikkakempaiah were doing coolie work in the said lands for about 2 or 3 days in a week. Except coolie work they were not doing any other work. Formerly they were owing lands. Even at that time they were not working in their lands. As I have seen the said Kempaiah and Chikkakempaiah since last about 30 years their financial position was not good. They used to do coolie work for their livelihood. They also used to dispose off their lands to meet their necessities. They had contracted debts, and to discharge those debts they disposed their properties. The said Kempaiah and Chikkakempaiah had sought my help in securing one loan to the tune of Rs. 5,000/- from one Pillaramappa of Gangenahalli. I brought the amount of Rs. 5,000/- from Pillaramappa and gave it to Kempaiah and Chikkakempaiah. The said persons had also borrowed monies from several other persons from Munigurappa, Chikkadadappa, Anagadi Kempaiah and Chikkakallappa. They cleared the said loans by disposing of one of their lands. Gradually they have disposed of their other lands also.

The above extracted evidence categorically suggests that Chikkakempaiah and B. Kempaiah were indolent, barely attended regularly to coolie work and failed to explicit the potential of family lands, making earnest efforts to realise possible lucrative income from the lands which had a possible water source. On the other hand, as lazy lubbers connived together to resort to easy way of living by selling the share of women and minors in family properties under the pretext of family maintenance. The legal obligation of maintenance of women and minors places a duty on the person to support the family with his own earnings and not by sale of the properties of women and minors. There is utter failure and abdication of responsibility by the brothers. Therefore the sale made at Ex.P.4 under the above stated circumstances and conditions cannot be considered as one for legal necessity for maintenance of the family.

In the present case, the antecedent debt was only Rs. 300/-. The brothers'' later on agreed to sell half portion of the suit property to the Defendant. The other half portion was initially agreed to be sold for inadequate consideration of Rs. 1,000/- to a third party. It is the argument of Sri Yoga Narasimha that the elders intervened to prevail on the Defendant to purchase the other half portion for a market price for Rs. 3,000/-. Therefore, the property is purchased for market price cannot be countenanced to legalise and to legitimise the sale effected under Ex.P.4.

The law places onus on the purchaser to make bonafide enquiries about the existence of legal necessities. The Defendant had full knowledge of the indolent and reckless conduct of the vendors and their family affairs. The antecedent debt is a paltry sum of Rs. 300/- which did not warrant the sale of entire property. Therefore, the facts and the conditions under which the sale is effected cannot be justified as one for legal necessity. The conduct of indiscriminate sales effected by the brothers'' is nothing short of reckless squandering of the property and amounts to in law an illegal and an immoral sale. The Defendant was fully aware of the fact situation. Therefore, the purchase made by the Defendant cannot justified one towards discharge of antecedent debt to bind the Plaintiff on the ground of pious obligation. However, the sales effected to the extent of individual share of Chikkakempaiah and B. Kempaiah and their mother under Ex.P.4 is valid and binding on the Plaintiffs.

The Plaintiffs 7 to 9 are born subsequent to the sale, therefore, they are not entitled to any share. In view of the decision of this Court reported in Smt. Puttamma and Others Vs. H.K. Ramegowda, and as per Section 8 of Hindu Law Women''s Right Act of 1933, at a partition the widowed/mother is entitled to half that of a son. The Plaintiffs 1 to 5 who are the heirs of Chikka Kempaiah''s branch got 2/5th share, the other Plaintiffs who are heirs of B. Kempaiah''s get 2/5th share and mother of Chikka Kempaiah and B. Kempaiah will get 1/5th share. In the share allotted to Chikka Kempaiah and B. Kempaiah further notional partition is to be effected between the heirs inter se.

In the result, in the 2/5th share allotted to B. Kempaiah should be distributed between, B. Kempaiah and his three sons and his widow. The widow getting one half of the son and in the rest B. Kempaiah and his three sons to be allotted equal shares, as per Section 8(1)(b) of the Hindu Law Women Rights Act, 1933. Similarly in the 2/5th share allotted to Chikka Kempaiah, the 5th Plaintiff would be entitled to one half to that of a son and 6th Plaintiff and Chikka Kempaiah would be entitled to share in equal parts. Therefore the share that is legally allowable to late B. Kempaiah, Chikka Kempaiah and 1/5th share allotted to their mother in the suit property could be validly sold, but the shares of the Plaintiffs 1 to 6 cannot be justified as valid sales in law. In that view, the finding of the trial Court that the sale under Ex.P.4 is for the legal necessity is bad in law. Accordingly, the same is set aside.

The Plaintiffs have sought for recovery of possession. The Plaintiffs are not entitled to possession of the entire property but to the extent of their share in the property they are entitled to the relief. In view of the ruling of the Division Bench of this Court in Neelawwa v. Shivamma AIR 1979 Kar 45 and in order to avoid multiplicity of proceedings, a preliminary decree for partition is granted as indicated above. The parties to work out the further remedy by way of final decree proceedings.

The appeal is allowed in part. The suit is decreed as indicated above.