Alli Katteppa and Others vs Abdul Sab and Others

B.V. Nagarathna, J.—1. This second appeal is filed by the plaintiffs, assailing judgment and decree passed by the II Additional Civil Judge (Sr. Dn.), Bellary, in R.A. No. 71/2006 dated 06.03.2009, confirming the judgment and decree passed by the Principal Civil Judge (Jr. Dn.), Bellary, in O.S. No. 199/1985.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

The plaintiffs filed O.S. No. 199/1985, seeking cancellation of sale deed dated 13.06.1980 executed by defendant No. 2, father of plaintiffs, in favour of defendant No. 1 in respect of the suit schedule property measuring 11.50 acres. They also sought for partition and separate possession of said property demanding their 2/3rd joint share in the said property and for determination of past and future mesne profits and for other incidental reliefs.

It is the case of plaintiffs that the plaint schedule property was standing in the name of their father Alli Pompanna, defendant No. 2, that they have 2/3rd share in the said property, that the plaintiffs were in enjoyment of the said property along with their father as joint family property. When the plaintiffs were minors their father sold the said property on 13.06.1980 for a sum of Rs. 9,000/-. Plaintiff No. 1 was born on 01.07.1964 and the plaintiff No. 2 was born on 01.06.1967 and as such being minors, they were not really aware of the nature of transaction when the suit schedule property was sold to defendant No. 1. After they attained majority they learnt that the defendant No. 2, their father had executed a sale deed in favour of defendant No. 1 and after obtaining the necessary documents they filed the suit.

It is the case of plaintiffs that the plaintiff No. 2 has been represented by the guardian, who is plaintiff No. 1 that he has not executed the sale deed along with his father nor did he put his left hand thumb impression on the original document nor was he present before the Sub-Registrar at Bellary, when the document was executed. According to the plaintiffs, the alienation made by their father is not binding on them, as there was no legal necessity for the said alienation. In fact, their father was addicted to vices such as drinking, gambling and debauchery and taking advantage of the tender age of plaintiffs he sold the suit schedule property for a meagre consideration. In the circumstances, they sought for cancellation of the sale deed dated 13.06.1980 and sought for partition and separate possession as well as mesne profits.

On issuance of suit summons and notices by trial Court, the defendant No. 1 appeared through his counsel and filed his written statement. He is the purchaser of the suit schedule property, who denied the allegations made in the plaint. He, however, admitted that the plaintiffs and defendant No. 2 constituted a Hindu joint family and defendant No. 2 was the kartha of said family. The said property was purchased by defendant No. 2 from the previous owner on 31.03.1973 for a sum of Rs. 4,000/-. The said property became the joint family property of the plaintiffs and defendant No. 2, that the defendant No. 2 sold the said property on 13.06.1980 to defendant No. 1 for a valuable consideration of Rs. 9,000/-. That the sale deed executed by defendant No. 2 in favour of defendant No. 1 is a valid transaction and binding on the plaintiffs. That defendant No. 2 sold the suit schedule property as the kartha of the family, and therefore, the sale is binding on the plaintiffs. Denying the other allegations in the plaint, defendant No. 1 sought for dismissal of the suit. Defendant No. 2 did not file any written statement.

On the basis of the aforesaid pleadings, the trial Court framed the following issues for its consideration--

1) Whether the plaintiffs prove that the suit schedule property was in possession and enjoyment in their own right as co-owners since 31.03.1973?

2) Whether plaintiffs prove that the defendant No. 2 as guardian was looking after the said property?

3) Whether plaintiff No. 1 proves that he is 20 years old and plaintiff No. 2 is 17 years as on the date of filing of the suit?

4) Whether plaintiff No. 1 proves that sale deed dated 13.06.1980 is forged one and is not binding on him as he has never executed the same by affixing LTM?

5) Whether plaintiffs 1 and 2 prove that the sale deed dated 13.06.1980 is not supported by consideration and is not binding as no permission was obtained for such alienation from appropriate authority and further there was no legal necessity for such alienation and has came into existence as alleged in para 6 of the plaint?

6) Whether plaintiffs prove the said sale deed dated 13.06.1980 is void and is liable to be set aside?

7) Whether plaintiffs are entitled to mesne profits?

8) Whether court fee paid by the plaintiff is correct?

9) What order or decree?

10) Whether defendant proves that the suit is bad for nonjoinder of necessary and proper parties as alleged in para 4(a) of the written statement?

In support of their case, plaintiffs examined themselves as P.Ws. 1 and 2, and one witness was examined as P.W. 3. Ten documents were produced and marked as Exs. P-1 to P-10. Defendant No. 1 examined five witnesses. The defendant No. 1 was examined as D.W. 1. He produced 13 documents, which were marked as Ex. D-1 to Ex. D-13. On the basis of the said evidence, the trial Court answered issue Nos. 1, 2, 4 to 6 in the negative. Issue No. 3 in the affirmative, insofar as plaintiff No. 2 and in the negative as regards the age of plaintiff No. 1. Issues No. 8 and 10 in the affirmative and Issue No. 7 as not surviving for consideration, and dismissed the suit.

Being aggrieved by the said judgment and decree of the trial Court dated 26.09.1998, plaintiffs preferred Regular Appeal No. 71/2006 before the I Appellate Court. The I Appellate Court after hearing the learned counsel on both sides framed the following points for consideration:

1) Whether the trial Court is erred in holding that, the plaintiffs failed to prove that they are in possession and enjoyment of the property as co-owners and the sale made by the defendant No. 2 in favour of defendant No. 1 through sale deed dated 13.06.1980 is without any family necessity and not binding on plaintiffs?

2) Whether the impugned judgment and decree needs to be interfered with?

3) What order or decree?

The I Appellate Court answered points No. 1 and 2 in the negative and dismissed the appeal. Being aggrieved by the judgment and decree of the courts below, plaintiffs have preferred this second appeal.

I have heard the learned counsel for appellants.

At the outset, it is submitted that the courts below were not right in appreciating the evidence on record. It was categorically proved that both the plaintiffs were minors, when the alienation was made by the 2nd defendant-their father on 13.06.1980. The said alienation made in favour of the 1st defendant was neither for legal necessity nor for the benefit of the estate. The suit schedule property was the joint family property and therefore, the plaintiffs have right, title and interest in the said property. But their father, the 2nd defendant, sold the suit property for a meager consideration of Rs. 9,000/- and as a result, the family did not benefit from the said alienation. On the other hand, plaintiffs have lost their valuable right, title and interest in respect of the said property. Both the courts below were not right in holding with regard to the left hand thumb impression of the 1st plaintiff on the said document i.e. sale deed dated 13.06.1980. In that regard it was submitted that the thumb impression found on the said sale deed Ex. D. 3 and the thumb impression on the plaint differed. This was established before the trial court. However, the said fact was not taken into consideration by both the courts. Further, the courts below ought to have taken note of the fact that the plaintiffs being minors, their interest in the suit schedule property was jeopardised on account of the impugned sale. The trial court as well as the first appellate court have simply proceeded on the basis that there was thumb impression of the 1st plaintiff on Ex. - D. 3 and therefore, came to the conclusion that there was tacit concurrence of plaintiff No. 1, vis-a-vis, impugned sale. It is submitted, the courts below ought to have annulled the sale deed dated 13.06.1980 and granted partition and separate possession in the suit schedule property to the plaintiffs and therefore, substantial questions of law would arise in this appeal, requiring admission for a detailed hearing of the matter.

Having heard the learned Counsel for the appellants and on perusal of the material on record, it is noted that the suit schedule property was the joint family property of the plaintiffs and defendant No. 2. Defendant No. 2 sold the suit property on 13.06.1980 under registered sale deed in favour of defendant No. 1. In this regard, it is also admitted that the plaintiffs and defendant No. 2 were not residing together as on the date when the alienation took place. It is also noted that the suit schedule property was purchased by defendant No. 2 on 31.03.1973 for a consideration of Rs. 4,000/- and the suit schedule property was sold on 13.06.1980 under Ex. D. 3 for a sum of Rs. 9,000/-. Therefore, it cannot be contended that the sale consideration was inadequate, having regard to the fact that the property was purchased in the year 1973 for a sum of Rs. 4000/- and having regard to the escalation of the price of the land in 1980, i.e. about seven years later, it was sold for Rs. 9,000/-. Thus, the contention that the plaintiffs were prejudiced on account of the sale of the property by their father for a meager consideration is not correct.

The next contention raised on behalf of the plaintiffs/appellants is that the trial court as well as the First Appellate Court proceeded on the basis that the thumb impression on Ex. D. 3 was that of plaintiff No. 1 and therefore, he had concurred and given his consent to the said sale transaction. In this regard, it was contended that, firstly, plaintiff No. 1 was minor and therefore, his concurrence is of no value and secondly, the thumb impression on Ex. D. 3 was not that of plaintiff No. 1. Therefore, there was neither any concurrence of plaintiff No. 1 in this regard nor could he have in fact given any such concurrence to the said transaction.

In answer to this contention, it can be held that even eschewing the fact that there was any such thumb impression of plaintiff No. 1 on the sale deed, the sale transaction could be considered dehors the said thumb impression. Even if plaintiff No. 1 had not put his thumb impression on the sale deed the same could be assailed. The fact that there was some thumb impression which was referable to the plaintiff No. 1, makes no difference to the question of validity of the sale deed which is to be considered on the aspect as to whether the Kartha of the joint family had indeed the right to alienate the property. In this regard, the 1st defendant in his written statement has categorically stated that there were grave reasons, on account of which the sale transaction was made by the father, in his favour. It has also come on record that the sale consideration was to be utilised by the 2nd defendant for his purposes as there was need for the same. The fact that the plaintiffs and defendant No. 2 were not residing together for several years prior to the sale impugned in the suit is also a matter which is to be taken into consideration. It appears that the 2nd defendant was constrained to sell the suit schedule property owing financial necessity and constraints. The plaintiffs have not let-in any contra evidence to the fact that there were no such financial constraints which were faced by the family. In this regard it is necessary to note that when the father, as Kartha of the joint family alienates the joint family property, the said prerogative or right to alienate is also inherent in the Kartha. In this view of the matter, the trial court as well as the I Appellate Court were right in not interfering with the alienation dated 13.06.1980. Both the courts have held that the alienation was valid and that it was made by the 2nd defendant as there was legal necessity to do so.

There is no substantial question of law which arises in the appeal. The appeal is dismissed.

In view of dismissal of main appeal, Misc. Cvl. No. 104186/2009 for grant of stay does not survive for consideration. Accordingly, it is dismissed.