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Judgment
This second appeal raises a short but interesting question of Hindu law. The unsuccessful plaintiff in the suit is the appellant. He filed the suit for partition of the plaint schedule property into five equal shares and to allot one such share to him after ejecting the defendants therefrom and to award future profits on his share. The facts of the case are not in dispute. The first defendant is the father of the plaintiff and defendants 2 to 4. They originally constituted a Hindu Joint Family of which the first defendant was the Kartha. The 5th defendant is the alienee of the plaint schedule property under a sale deed dated 3-11-1963 executed by the first defendant. The sale deed was preceded by an agreement of sale dated 15-5-1963 executed by the first defendant in favour of the 5th defendant. After the said agreement of sale but before the execution of the sale deed, the plaintiff issued a notice to defendants 1 to 5 on 25-7-1963 demanding partition to which a reply was sent on behalf of defendants 1 to 5 on 3-8-1963 asserting that the agreement of sale dated 15-5-1963 was executed by the first defendant for legal necessity and family benefits, that the plaintiff also was a consenting party to the same as he signed as an attest or in the said agreement and that the same is valid and binding on him. The plaintiff filed the present suit on 17-9-1963 denying his signature on the agreement of sale dated 15-5-1963 ad assailing its validity and binding nature and claiming partition and separate possession of his share in the suit property. Thereafter, during the pendency of the suit, the 5th defendant obtained the sale deed dated 3-11-1963 from the first defendant and got it registered. Subsequently the 5th defendant died and defendants 6 to 10 were added as his legal representatives.
The first defendant filed a written statement which was adopted by defendants 2 to 4 contending that the suit property was his self acquired property in which the plaintiff and defendants 2 to 4 are not entitled for any share. It was alternatively pleaded that in any case the agreement of sale dated 15-5-1963 as well as the sale deed dated 3-11-1963 have been executed for discharge of antecedent debts which have been contracted by the first defendant for joint family necessity and benefit and as such they are perfectly valid and binding on the plaintiff. The 5th defendant also filed a written statement on the same lines.
The trial Court held that the suit property was the joint family property of the plaintiff and defendants 1 to 4 and that the agreement of sale dated 15-5-1963 does not appear to be genuine and that the defendants failed to establish that the sale of the suit property by the first defendant to the 5th defendant was justified by legal necessity or family benefit or that it was made for discharge of antecedent debts and accordingly decreed the suit by passing a preliminary decree for partition. On the appeal preferred by the defendants 6 to 10, the lower appellate Court while agreeing with the trial Court that the suit property was the joint family property of the plaintiff and defendants 1 to 4, however, held that the signature of the plaintiff on the agreement of sale Ex.B13 as an attest or is genuine and that the said agreement of sale as well as the sale deed Ex.B15 are executed for the discharge of antecedent debts incurred by the first defendant for the benefit of the family and they are, therefore valid and binding on the plaintiff. On the said findings, the lower appellate Court reversed the judgment and decree of the trial Court and dismissed the suit.
Sri V.L.N.G.K. Murthy, learned Counsel for the plaintiff-appellant assailed the judgment of the lower appellate Court by contending that the debts mentioned in the sale deed Ex.B15 are concocted as they are not mentioned either in the agreement of sale Ex.B13 or the reply notice Ex.A5, that the signature of the plaintiff on Ex.B13 is not genuine and even otherwise, the plaintiff cannot be imputed with the knowledge of the contents of Ex.B13 and that in any case the sale deed Ex.B15 is not valid and binding on the plaintiff as the same has been executed by the 1st defendant after disruption of the joint family and during the pendency of the suit. On the other hand, Sri R. Prasad, learned Counsel appearing for the defendants 6 to 10 has pointed out that the lower appellate Court on a consideration of the entire oral and documentary evidence on record and giving cogent reasons found as a fact that the plaintiff attested the agreement of sale Ex.B13 and that the agreement of sale as well as the sale deed Ex.B15 were executed by the first defendant for discharge of antecedent debts incurred by him for family benefit and that the said findings of fact are not amenable for interference in the second appeal.
While I find force in the submission of the learned Counsel for the respondents that there are no valid grounds to interfere with the findings of fact recorded by the lower appellate Court, the question still remains whether the sale deed executed by the first defendant after the plaintiff issued a notice demanding partition is valid and binding on the plaintiff. This question, no doubt, was not raised in the two Courts below. However, as it is a pure question of law arising on the facts admitted or proved, I am of the view that the same can be permitted to be raised for the first time at this stage. The appellant has also filed a formal application seeking permission to raise this question as an additional ground in the second appeal.
It is well known that under Hindu law, a coparcener acquires right in the joint family property by birth. The right to demand partition is an incidence of the said right. Hence there can be no answer to the demand for partition made by a coparcener. Relying on the decision of the Privy Council in 43 Ind. App 151 : AIR 1916 PC 104, the legal position has been stated in the Mayne ''s Hindu Law and Usage 11th Edn., at page 550 as follows :
"Separation in status, with all the legal consequences resulting there from is quite distinct from de facto division into specific shares of the property held jointly. The former is a matter of individual decision, and is effected by the unequivocal expression of a desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined and unspecified share separately from the others without being subject to the obligations which arise from the joint status. The latter is the natural resultant from his decision, the division and separation of his share, which may be arrived at either by private agreement of the parties or, on failure of that, by intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co-sharers, his right to obtain and possess the share to which he admittedly is entitled, is unimpeachable; neither the co-sharers can question it, nor can the Court examine his conscience to find out whether his reasons for separation are well founded or sufficient. The Court has simply to give effect to his right to have share allocated separately from the others."
Of course, in the case of a minor coparcener, the Court can examine whether the notice demanding partition issued on behalf of the minor or the suit demanding partition instituted on behalf of a minor is in the interests of and beneficial to the minor and if the Court comes to the conclusion that it is in the interests of the minor, severance takes place not from the date of decision of the Court but from the date of the expression of the intention in the first case and from the date of the institution of the suit in the 2nd case. (See P.M. Ramaswamy Chettiar Vs. Raja Kuppa Chetti and Others,
In Rathna Naidu Vs. P.R. Aiyanachariar and Others, , a Division Bench of the Madras High Court held that it is not open to a Hindu father to deal with the property of his divided son so as to bind the latter even though it be in respect of an antecedent debt.
In Official Assignee, Madras v. Ramachandra Aiyar AIR 1928 Mad. 735 (FB), after referring to the relevant decisions on the point it was pointed out-
"All these decisions necessarily imply that the right of the father to sell was dependant on the property continuing to be joint ancestral property up to the date of the sale."
In K.R. Subramania Aiyar and Others Vs. Sabapathi Aiyar and Another, , Srinivasa Ayyangar, J., stated :
"On a partition of the family property there is a disruption of the family and the managership of the father ceases and with the managership being lost, the power is also lost of the father to effect an alienation of the family property not only for purposes of family necessity but also far his own antecedents debts."
In Pannalal and Another Vs. Mst. Naraini and Others, , the Supreme Court had to consider this question elaborately and after having stated that it is well settled that the pious liability of the son to pay the debts of his father exists whether the father is alive or dead, and therefore, it is open to the father during his life time, to effect a transfer of any joint family property including the interests of his sons in the same to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality and it is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father''s but also the son''s interest in the joint estate, the Supreme Court observed:
"All of them, however, have reference to the period when the estate remains joint and there is existence of copartnership between the father and the son. There is no question that so long as the family remains undivided, the father is entitled to alienate, for satisfying his own personal debts not tainted with immorality the whole of the ancestral estate. A creditor is also entitled to proceed against the entire estate for recovery of a debt taken by the father. The position is some what altered when there is a disruption of the joint family by a partition between the father and the sons."
In Varadammal and Another Vs. Ambalal J. Vyas and Others, , Ismail, J., after considering all the above authorities observed as follows:
"Thus the position is clear that once severance in status has taken place between the third defendant and the second defendant by the institution of OS No.32 of 1957 on the file of the Sub-Court, Salem, which was ultimately decreed, the third defendant had now power to alienate the ancestral properties so as to bind the second defendant herein even though the debts in respect of which the third defendant executed the composition trust deed, Ex. A19, were binding on the second defendant, because it is one thing to say that the debts incurred by the Kartha of a joint family for the purpose of the family are binding on the coparceners or the debts incurred by the father, not tainted with illegality or immorality, are binding on his sons, and it is entirely another thing to say that the Kartha of a Hindu Joint Family or the father is entitled to alienate the joint family properties so as to bind the other coparceners or the sons as the case may be even after severance in status between them. Notwithstanding the disruption of the joint status, the debts may be binding on the other coparceners or the sons and the creditors may have appropriate remedies for realisation of their debts. But the right to alienate the property so as to bind the interests of the other coparceners or the sons comes to an end with the disruption of the joint status."
It follows from these authoritative pronouncements that the first defendant had no power to alienate the joint family property so as to bind the plaintiff after the disruption of the family which resulted from the notice issued by the plaintiff on 25-7-1963. On this short ground it must be held that the sale deed Ex.B15 executed by the first defendant in favour of the 5th defendant is not valid and binding on the plaintiff. The plaintiff is, therefore, entitled for a decree for partition and separate possession of his share in the suit property. However, as it is found by the lower appellate Court that the debts mentioned in Ex.B15 were all true and they were incurred by the first defendant for joint family necessity and benefit and they are all pre-partition debts, the plaintiff is liable to bear his share of the said debts.
In Srinivasa Ayyangar v. Kitppuswami Ayyangar (1921) 44 Mad. 801 and Lingayya v. Punnayya ILR (1942) Mad. 502 (FB), it was held that:
"Where an alienation made by a father or other managing member is set aside on the ground that there was no such necessity, complete or partial as will justify it, is made conditional on the refund to the alienee of such part of the consideration as is shown to have been advanced by him for necessary purposes or for the discharge of antecedent debts or as is proved to have been carried to the joint family assets."
The total consideration for the sale deed Ex.B15 is Rs.12,000/-. Out of the said sum, a sum of Rs.7,928/- was applied for discharge of antecedent debts and the balance of Rs.4,072/- was paid to the first defendant in cash at the time of registration of the sale deed. So the plaintiffis liable to refund 1/5th of the amount which was applied for discharge of the antecedent debts which comes to about Rs.1,580/- together with interest thereon at 12% p.a., from the date of the sale deed i.e., 3-11-1963 till date of payment to defendants 6 to 10.
The second appeal is accordingly allowed granting a decree for partition and separate possession of 1/5th share in the suit property in favour of the plaintiff subject to the condition that the plaintiff shall pay to defendants 6 to 10 a sum of Rs.1,580/-together with interest thereon at 12% p.a., from 3-11-1963 till date of payment. Since it is stated that the plaintiff alone is now in possession of the entire suit property, I think it will be just and proper to direct the plaintiff to pay the said sum to defendants 6 to 10 within three months from the date of receipt of this order. In default of such payment, the second appeal stands dismissed and the judgment and decree of the lower appellate Court will stand. Each party do bear its own costs.