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Judgment
Anand Byrareddy
Heard the learned counsel for the appellants and the learned counsel for the respondents. The appellants were the plaintiffs before the trial court in a suit for partition and separate possession of one-fourth share each in the suit schedule properties. Respondent No. 1, who was defendant No. 1 before the trial court, is the father of the plaintiffs. It is their allegation that respondent No. 1 was allotted certain ancestral properties by virtue of a registered partition deed dated 29.5.1972, which was entered into between the first responded herein, his father, or the grand-father of the plaintiffs, and the uncles of the, plaintiffs. The appellants claimed that they were coparceners and were entitled to a share in the family properties by birth. The suit schedule properties, according to the plaintiffs, were comprised in Survey Nos. 39 and 41 of Akkithimmanahalli village, which was subject to acquisition by the City Improvement Trust Board (Hereinafter referred to as the ''CITB'' for brevity), the predecessor-in-interest of the present Bangalore Development Authority (Hereinafter referred to as the ''BDA'' for brevity) and the same was allotted to the first respondent at the family partition, as already stated. Upon such acquisition, the first respondent having applied for reconveyance of the same, the Bangalore Development Authority had agreed to reconvey item No. 1 of the suit schedule property in his favour. The first Respondent -defendant No. 1 was prohibited from alienating the property for a period of ten years from such allotment. In violation of the same, it is the case of the plaintiffs, that defendant No. I had alienated the suit schedule properties in favour of respondents 2 to 5, who were the defendants. It was recited in the sale deeds in favour of those defendants that the alienations were made for a legal necessity and the sale deeds were being executed by defendant No. 1 on behalf of the plaintiffs, who were minors at that point of time. Acting, on that representation, the sale transactions were completed as of the year 1991 and 1995, respectively. It is that which was sought to be questioned in the suit, ostensibly termed as a suit for partition.
Defendants 2 to 5 had contested the suit and significantly, defendant No. 1 had remained ex-parte and did not choose to contest the suit. On the basis of the pleadings of both the parties, the court below has framed the following issues:
Whether plaintiffs prove that they along with the first defendant constituted an undivided Hindu joint family?
Whether plaintiffs prove that the suit schedule properties are the joint family properties of themselves and first defendant?
Whether plaintiffs prove that first defendant has addicted to vices like alcohol and to meet immoral habits, he sold portions of suit schedule items 1 to 3 properties to defendants 2 to 5?
Whether plaintiffs prove that the sale deeds executed by first defendant in favour of defendants 2 to 5 do not bind their share?
Whether defendants 2 to 5 prove that registered sale deeds executed by first defendant in their favour on 29.10.1991 and 31.3.1995 was for the legal necessity and benefit of the join: family?
Whether defendants 4 and 5 prove that they are the bonafide purchasers of properties under the registered sale deed dated 31.3.1995?
Whether plaintiffs prove that they are entitle for share in the suit schedule properties? If so, what is the quantum of then share and in which item of the properties?
Whether plaintiffs are entitled for inquiry in to mesne profits?
What order or decree the parties are entitled to?
Additional Issue:
Whether defendant Nos. 4 and 5 prove that the suit is not maintainable as all the properties belonging to the joint family are not included in the suit?
And the court answered the issues in favour of defendants 2 to 5 and has dismissed the suit. It is that which is under challenge in the present appeal.
The learned counsel for the appellants would submit that the plaintiffs, who were minors as on the date the sale deeds were executed the law enables the plaintiff''s to question the sale transactions as being voidable in the eye of law, since there was no legal necessity for which the sale transaction could have been executed and a mere recital in the sale deeds by itself is not proof of the alleged legal necessity. There was no evidence placed before the court below by the defendants to establish that there was a legal necessity, for which the sale transactions had taken place. In the absence of which, it cannot be said that defendants 2 to 5 had discharged the burden of establishing the legal necessity and in sustaining the sale transactions and on that ground alone, the learned counsel would submit that, the suit ought to succeed and would take this court through the material on record, pleadings as well as the judgment of the court below, to point out that the court has not addressed this aspect of the matter namely, whether there was legal necessity and defendants 2 to 5 had established the same in holding that the sale transactions ought to be sustained.
While the learned counsel for the respondents would seek to justify the judgment and would point out that the suit, which is filed in the nature of a suit for partition, has significantly excluded all the properties that are available to the family of the plaintiffs alongwith their father and in the absence of the entire extent of the properties that were available to the plaintiffs and their father, determination of the share as being one-fourth in each of the suit schedule properties is an incomplete partition suit and therefore, the motive in preferring the present suit is apparent and it is only with the sole objective of defeating the sale transaction, which is entered into with defendants 2 to 5, who are bona fide purchasers for value and on the express rejection that the sale transactions are being executed for a legal necessity of the family of the defendant No. 1 and his children, it cannot be said that the burden is not discharged by the defendants. The defendants would also be handicapped in ascertaining the extent of properties available to the plaintiffs, in the absence of any particulars forthcoming apart from the partition deed. Even otherwise, defendant No. 1 had categorically furnished the particulars of the various properties available to the plaintiffs'' family, out of which, they could claim their share and even if the alienation, insofar as the suit properties are concerned, are to be held as voidable, it would still be open by virtue of equalisation of the shares of defendant No. 1 and the plaintiffs to apportion shares out of the properties still held by the family without disturbing the sale transactions, which would, at best, be to the disadvantage of defendant No. 1 whereas the interest of the plaintiffs would be well-protected having regard to the admitted fact that there we several properties available to the plaintiffs and their family and which have been highly developed and highly valued as on date. It is also pointed out that it is incorrect to hold that the trial court has not assigned any reasons nor has not addressed the circumstance as to there being a legal necessity. The admitted position that several properties were available to the plaintiffs as on the date of the suit, is not seriously disputed and therefore, the court below has reasoned that the sale transaction could not be negatived on the ground that there was no legal necessity.
The learned counsel for the plaintiffs, on the other hand, would submit that though the partition deed of the year 1972 would indicate that there were several items of property which were allotted to the share of defendant No. 1, in view of the fact that there was acquisition of the said properties by the CFTB subsequently and that the suit items were allotted to defendant No. 1 by reconveyance deed, it is not apparent that other items of properties were still available to the family of the plaintiffs and therefore, he would seek time to ascertain the particulars of such items of property which are still available. On the above facts and circumstances, it is noticed that though the trial court has framed several issues, the court below has not chosen to answer issue No. 7. In the usual course, it would have been appropriate for this court to have remanded the matter on that ground alone and to have directed the trial court to render its findings on issue No. 7 though it has been held in the negative. There is no reasoning forthcoming in the body of the judgment on issue No. 7. However, it is to be accepted that the suit, claiming to be one for partition of the family properties of the plaintiffs, is certainly incomplete. There is evidence to indicate that the properties other than the suit properties are certainly available with defendant No. 1 and to which, the plaintiffs may have right to claim a share. If this be so, it was appropriate for the plaintiffs to have included all the items of property including the present suit properties in claiming partition and then it would have been convenient for the court to have directed partition and to equalise the shares setting off the suit properties against the share of defendant No. 1 and thereby protecting the interest of the plaintiffs and ensuring an equitable partition. This not having been done, even a remand on the ground that there is no finding on issue No. 7 would only result in the trial court expressing an opinion that in the absence of material particulars of all the properties of the family of the plaintiffs and defendant No. 1, it would not be possible to workout, equities as between the plaintiffs and defendant No. 1 and merely to target the suit properties which have been sold in favour of defendants 2 to 5, may result in a miscarriage of justice. For if defendant No. 1 is to blame for executing a sale deed without there being a legal necessity and in violation of the express prohibition under the reconveyance deed executed by the BDA, it is appropriate that defendant no 1 suffer the consequences insofar as the allotment of shares are concerned. This not having been done, it would be a travesty of justice if the suit is to be reconsidered on the basis of the incomplete pleadings, as it were, since the plaintiffs have not chosen to indicate all the items of property, to which they were entitled. In that light of the matter, even at present, the plaintiffs would not be prejudiced if they are afforded liberty to file a comprehensive suit for partition including all the properties that are available for partition and to workout the share of defendant No. 1 keeping in view the alienation made in favour of defendants 2 to 5 of the suit properties in order to setoff the same against the share that would be allotted to defendant No. 1. That remedy being available to the plaintiffs, there is no injustice caused if the judgment and decree of the trial court, though imperfect in certain particulars, is affirmed. Accordingly, the appeal stands dismissed.