T.J. Jagadeesha vs T.H. Yashvantha

A.S. Pachhapure, J.—The appellants have challenged the judgment and decree of the Trial Court dismissing their suit for the relief of declaration and possession and also dismissal of their appeals filed before the First Appellate Court.

The matters are taken together for consideration as there are common facts and common question of law in all these appeals.

The brief facts relevant for the purpose of these appeals are as under:

The appellants who are the sons, daughters and wife of T.N. Jayaswamy, the 2nd defendant in OS instituted the suit seeking aforesaid relief''s on the ground that the suit properties were sold by 2nd defendant, T.N. Jayaswamy the father of appellants 1 to 5 and husband of 6th appellant herein in favour of 1st defendant/respondent herein. As T.N. Jayaswamy the 2nd defendant died during the pendency of suits, he is not arraigned as a party in these appeals. The family of plaintiffs and 1st defendant was a joint family and it is the grievance of plaintiffs that under three sale deeds as per Exs. P. 11, P. 12 and P. 21, Jayaswamy the 2nd defendant sold the suit properties to the 1st defendant/respondent herein and that the sale was not for legal necessity. It is their contention that the 2nd defendant was in bad habits and had kept a mistress. In the circumstances, the sale of suit properties was only to fulfill his needs and that the sale transactions are not binding on the interest of plaintiffs on the suit properties and contended that all the plaintiffs have 7/9th share in the suit properties. Alternatively, they sought for possession of their share in the suit properties.

The 2nd defendant died during the pendency of suits. The 1st defendant in the suit who has purchased the suit properties have filed the written statement denying the averments made contending that the present suit is not maintainable in law and that the sale transactions are for legal necessity for the reason that in order to discharge the liability, the 2nd defendant had sold the suit properties in favour of 1st defendant under the aforesaid sale deeds.

The Trial Court framed the issues and permitted the parties to produce their evidence. The case is that initially the suits were instituted in the year 1987 and due to the change in the pecuniary jurisdiction, the suits were transferred to different courts and ultimately, the cases were registered as O.S. Nos. 191, 192 and 193 of 1989. It appears, even prior to that, the Courts had recorded the evidence and later in pursuance of direction, the Trial ''Court recorded common evidence and on behalf of the plaintiffs P.Ws. 1 to 4 were examined and in their evidence, Exs. P1 to P26 were marked''. On behalf of the defendants, DWs. 1 to 3 were examined and in their evidence, Exs. D1 to D31 were marked. Later the trial Court'' heard the counsel and on appreciation of the evidence on record held that the suit is not maintainable both on the grounds that it is barred by time and that the suit has to be for reopening of partition. Further it has held that the sales are for legal necessity. Aggrieved by the judgment and decree of the trial Court, the plaintiffs approached the First Appellate Court in RA. Nos. 105 to 107 of 2009. The appeals came to be dismissed on merits. Aggrieved by the concurrent findings of the courts below, the present appeals are filed.

I have heard the learned counsel for both the parties.

The learned counsel for the appellants submit that the findings of the Courts below holding that the suits are barred by time is improper for the reason that some plaintiffs have not attained the age of majority even on the date of filing of suits. The Courts below could have their shares in the suit, properties. It is also his submission that much prior to the partition, the father of 2nd defendant has made a paper publication regarding the bad conduct of 2nd defendant and that there is oral evidence to prove his bad conduct and therefore, he submits that the letters at Exs. P. 15 to P. 17 and the paper publication made in the life time of grand father have not been considered in a proper perspective and therefore, he submits that the approach of Trial Court is both erroneous and illegal. He submits that there was no legal necessity for the family and as the 2nd defendant was staying with mistress, he spent the money for his bad character. The counsel submits that bad conduct is established from the voter list produced. On these grounds, he prays to raise the substantial question of law and seeks to admit these appeals.

On the other hand, learned counsel for the respondent supports the judgment and decree of the Courts below and submits that the sale transactions were for the legal necessity and therefore, the decrees of Courts below will have to be confirmed.

As could be seen from the prayer made in the suit, the relief sought is for declaration that the alienation made in favour of 1st defendant by the 2nd defendant under the sale transactions is not for legal necessity or any benefit to the estate of plaintiffs as they are the joint family properties and further in clause-B, the appellants pray for "recovery of the possession of the plaintiffs'' share of 7/9th as not binding on the plaintiffs". Thirdly, there is prayer for court costs. So far as the relief of recovery of 7/9th share in the suit properties, is a peculiar prayer, sought for and at the most, the appellants could have sought for partition, but there is no specific plea in this regard in the prayer column. It is only for recovery of 7/9th share in the suit properties or at the most, it could be said that the only relief is for declaration that they have 7/9th share in the suit properties.

It is well established principle of law that under the provisions of Section 34 of the Specific Relief Act, a suit only for relief of declaration cannot be maintained and it is necessary for the parties to seek further relief. The provisions of Section 34 provides that "no court shall make any such declaration where the plaintiff, being able to seek further relief than, a mere declaration of title, omits to do so". So the further relief which the appellants ought to have sought for is the partition of 7/9th share in the suit properties./In the aforesaid circumstances, the further prayer is only for recovery of 7/9th share which cannot be granted in law and it is not a prayer at all. What remains is only a suit for declaration.

Ex. P. 14 is the copy of the notice which was published in a news paper in the year 1976. The certificate is at Ex. P. 14 certified by the editor of Janamitra newspaper to the effect that the aforesaid notice was published in the Janamitra newspaper.

When the paper publication is produced in the Court, it is necessary for the parties to establish the contents of this publication by examining the persons who published the notice--The plaintiffs have not taken any such steps to examine the editor who issued the certified copy. Therefore, the said paper publication cannot be led in evidence.

It is not in dispute that after the sale transactions, there was a partition in the family and P.W. 1 has admitted this fact in the cross examination. At the time of this partition, which was held in the year 1985 prior to the institution of suit, some properties fell to the share of plaintiffs and those properties were not included in this suit. If this suit is to be treated as for partition in addition to the declaration, then all these properties could have been included by the plaintiffs in the suit for the reason that even the purchaser who purchased the joint family property would have sought for adjustment of their share under the principle of equity. Therefore, in the absence of inclusion of said properties, the suit cannot be maintained.

That apart, once there is a partition in the family, then the only ground left is that they should request for reopening of the partition except for the relief that the sale is not for legal necessity. The Courts below have held that this relief is essential and the suit cannot be maintained.

To prove that the 2nd defendant was addicted to bad habits, learned counsel for the appellants have referred to three letters-Exs. P. 15 to P. 17 addressed by the father of 2nd defendant to his grand children who are some of the plaintiffs. It appears that he was paying the school fees at the relevant point of time and there is no wrong for the grand parent to pay fees of the grand children. Except these three letters there is no evidence to show that the grand father was paying the fees all along till there was break up in the-joint family between the parties, which made them to approach the Court for the relief''s sought for in the plaint.

It is not in dispute that in the year 1985 there was a partition. The voter list produced, reveals the name of Rangamma as the wife of Jayaswamy that is the 2nd defendant. The said voter list is of the year 1988 and no voter list earlier to that is produced by the parties. This voter list pertains to the year subsequent to partition in the family. Even subsequent to the sale transaction. So, even if he was staying with Rangamma, it has no relevance with the transaction in question which was in the year 1983. Therefore, the aforesaid voter list for the subsequent period was also not accepted by the Courts below.

Learned counsel for the appellants would submit that the Trial Court did not consider the evidence of Parvathamma, the wife of Jayaswamy. I do not think there is any error or illegality in not considering the evidence of Parvathamma, which is recorded earlier to the transfer of the case. This Court had ordered de-novo trial and for this reason the evidence of Parvathamma recorded earlier for direction was rightly not considered.

That apart, the Courts below have taken into consideration the mortgage transaction; loan in the Canara Bank and loan in the Co-operative Bank which was prior to the transaction in question and on consideration of the aforesaid material, the Courts below have come to the conclusion that the sale transaction was for legal necessity. It is pertinent to note that there was a partition in the year 1985. The persons who had attained the age of majority and their guardians did not the file the suit in time and they contend that the sale of properties by Jayaswamy was not for legal necessity. This conduct on their part appears to be not bonafide. Having kept quite all along, the suit came to be filed in the year 1987.

So far as the plaintiff who had the majority the claim is not in time. At the same time when the minors are represented by guardian they have also a duty to establish that the suit instituted is in time.. Any how when the appellants have to avail on other grounds, dismissal of suit on this ground may not make much difference.

Considering the submissions made by the learned counsel for appellants in the context of materials placed on record, I am of the opinion that no substantial question of law arises for consideration in these appeals. The Courts below on appreciation of the evidence on record have held that the suit for declaration cannot be maintained and that the sale is for legal necessity.

Consequently the appeals deserve to be dismissed, and are accordingly dismissed.