Balu alias Balakrishnan vs B. Sasikumar and Others

E. Padmanabhan, J.—This appeal has been preferred by the writ defendant in O.S.No. 136 of 1984 on the file of the Sub Court, Madurai.

Heard Mr. T.R. Rajaraman, learned Counsel appearing for the appellant Mr. R. Dhamodharan, learned Counsel appearing for the respondents 1

and 2, M/s. Iyer and Dolia appearing for the 7th respondent Mr. S. Sundaragopal, learned Counsel appearing for the 8th respondent and Mr. N.

Visakamurthy, learned Counsel appearing for respondent No. 11.

For convenience, the parties to this appeal shall be referred as arrayed before the trial Court.

The case of plaintiffs: The minor plaintiffs 1 and 2 through their mother and next friend instituted the suit O.S.No. 136 of 1984 seeking the relief

of partition and separate possession of 2/5th share in items 1 and 2, 2/3rd share in items 3 and 4 of the plaint schedule and for a direction to pay

mesne profits. The first defendant is the father of the plaintiffs. The minor plaintiffs and defendants 1 to 5 are members of the joint family who

belong to Ramayana Chavadi Yadava community in Madurai Town, their family occupation being agriculture and trading in milk, cows and

buffaloes. The 5th defendant is the mother of defendants 1 to 3. The 4th defendant is the daughter of the 5th defendant and sister of defendants to

Mieyana Konar father of defendants 1 to 4 and husband of the 5th defendant died intestate and the properties left by him is governed by

intestate succession under the Hindu Succession Act, 1956.

The defendants 1 to 4 entered into a partition arrangement of the house properties alone under a registered partition deed dated 30th

September, 1982. The 5th defendant abandoned her claim of share in the said house property and was content with the right to be maintained by

the defendants 1 to 3. The agriculture lands were partitioned under the registered deed dated 30.9.1982 which are described as suit items 1 and 2.

The defendants 1 to 4 are each entitled to 1/5th share in those items and the plaintiffs being the sons of the first defendant, are each entitled to

1/15th share in items 1 and 2 of the plaint schedule.

Items 3 and 4 are the house properties allotted to the share of the first defendant as per the partition deed dated 30.9.1982 which is described

in C Schedule to the partition deed. The property allotted to the share of the defendants 2 and 3 have not been included in the present suit claim. A

sum of Rs. 18,464 being the fixed deposit with the 8th defendant, which is suit item No. 5. So also the 7th item which is a fixed deposit with the

9th defendant- Bank which stands in the joint names of the first defendant and his wife. They are also joint family properties in which the plaintiffs

are entitled to a share.

The 6th item is a Matador van acquired by the first defendant after partition from and out of the income of the joint family properties viz., items 1

to 4 in which the plaintiffs are also entitled to 1/15th share each. It is further pleaded that the first defendant had abandoned the family and is

leading immoral life and was closely associated with one Thiagarajan in his immoral pursuits. Items 1 and 2 are valuable and extensive properties

and the first defendant is in receipt of share of income from the house and landed properties.

The plaintiffs alleged that the first defendant had executed a mortgage deed on 23.4.1983 within seven months from the date of partition in

favour of the 6th defendant, which mortgage is not supported by consideration and which encumbrance is not for the benefit, nor for any necessity,

nor it is binding on the plaintiffs. Hence, the plaintiffs are entitled to ignore the existence of the said mortgage and also claimed 1/3rd share each in

plaint item 3. Closely following the mortgage on 23.4.1983, the first defendant on 8.7.1983 had purported to have executed a sale deed for a

consideration of Rs. 48,000 in respect of item 4 of the plaint in favour of the 7th defendant. The market value of the property is more than Rupees

two lakhs and the consideration mentioned in the sale deed is the entire loan and there is no adequate consideration for the sale. The sale is

extremely fraudulent brought into existence at the instance and with the assistance of Thiagarajan. The sale is not for the benefit of the minors, nor it

binds them, nor it is for binding necessity, nor it is for the purpose of the family. The sale deed is not binding on the plaintiffs. In fact in the sale deed

the second defendant had not even referred to the birth of the second plaintiff on 26.6.1983 in the sale deed of alienation as he was not aware of

the birth of the second plaintiff, having already abandoned the family resident in the pursuit of his immoral habits. The sale deed is not binding.

The first defendant is not doing any business either manufacture or sale of soap and he was in need of funds. The first defendant had not

confined himself to the Kulachara of the family, but had burdened the family estate for new or speculative venture. The van in plaint item No. 6 was

purchased from the income of the family properties and the recitals there are false. The sale of valuable immovable properties in a very prosperous

locality in the heart of Madurai Corporation for an utterly inadequate consideration is not binding on the plaintiffs and the plaintiffs are entitled to

ignore the said sale deeds and they are entitled to claim 1/3rd share each in item No. 4 as well.

First defendant''s case: The first defendant filed a written statement denying the plaint averments while admitting the earlier partition deed dated

30.9.1982 in respect of suit items 3 and 4 of the suit properties and another vacant site measuring 1301 sq.ft., allotted in his favour. The first

defendant further denied the allegation made against him with respect to his proliferate habits in spending huge money in pursuit of immoral habits

and his intimacy with immoral women and maintaining them at No. L.S.C. 30, K.K. Nagar, Madurai. The first defendant further denied that he had

not abandoned the family residence, nor he was living permanently in immoral intimacy with those women and he was not associated with

Thiagarajan.

The first defendant pleaded as an young man with an intention to get more income for himself and his family he had started a soap factory and

was doing business. Further the first defendant incurred heavy loss in his business due to heavy competition in the business and to discharge the

liability he mortgaged item No. 3 of the suit properties and sold item 4. Out of the said sale consideration, the first defendant purchased a van for

business which has since been disposed of. The entire sale consideration and mortgaged money were invested by the first defendant for the said

business venture. The first defendant further claimed that as a kartha of the family he has got every right to start and conduct any business for the

benefit of the family. It was further pleaded that the alienations by the first defendant are for necessity and the averment to the contra is false. It is

further claimed that the first defendant lived with his wife peacefully with love and affection. The present suit has been instituted at the instigation of

his father-in-law and brother-in-law and his wife had also deserted him without reasonable or probable cause. His wife had refused to live with him

and her parents also did not allow her to join the first defendant.

The first defendant was threatened and therefore he has to naturally to live with his uncle at Door No. 33, Nallammadan Kovil Street, North

Masi Street. The defendant is ready and willing to live with his wife and children and he had prayed for dismissal of the suit.

Case of the second defendant: The second defendant had filed a separate written statement admitting the averment set out in paras 5 and 6 of

the plaint and stated that only house property alone was partitioned as per partition deed dated 30.9.1982. It is the plea of the second defendant

that landed properties and Schedule 1 and 2 were orally partitioned between the defendants 1 and 2 and defendants 2 to 5 at the first instance.

Subsequently by means of a registered deed, the landed properties were also divided equally. As per the partition deed the first defendant got his

share in respect of the landed properties as well. The defendants 2 to 5 are not connected with the other dispositions with the first defendant and

the plaintiffs. The defendants 2 to 5 are not interested in the internal dispute between the first defendant and the plaintiffs. The defendants are not in

possession of any other properties of the first defendant and prayed for dismissal of the suit.

Case of the sixth defendant: The 6th defendant filed a written statement denying the averments set out in the plaint and pleading that the first

defendant after receipt of valid consideration mortgaged item 3 of the suit property on 23.4.1983 and the said mortgage is binding on the plaintiffs

as it is for necessity. The mortgage is binding on the plaintiffs. The suit has been instituted by the plaintiffs at the instance of the first defendant and it

is a collusive suit.

Case of the second defendant: The 7th defendant while denying the suit claim and contending that the plaintiffs'' suit is vexatious and is an

attempt to extract more money, the 7th defendant contended that the plaintiffs are not entitled to any relief and that he had purchased the 4th item

for valuable consideration of Rs. 48,000. The seventh defendant denied that the suit property is more than Rupees two lakhs. The 4th item of the

suit property is located in a very narrow lane and not in the heart of the city, besides the building is very old and therefore the sale is for a real value

and not for a lesser value as alleged by the plaintiffs. The first defendant after sale had purchased the Matador van and had invested the same in his

soap business. The said defendant further pleaded that he is a bona fide purchaser of item No. 4 for valuable consideration and the plaintiffs are

not entitled to any relief in respect of the property purchased by him.

Case of the tenth defendant: The 10th defendant- Bank had filed a written statement disputing the suit claim and also pointed out that the

plaintiffs had not furnished any details of the alleged deposit in the joint names of the first defendant and his wife and the 9th defendant prayed for

dismissal of the suit claim.

Case of the eleventh defendant: The 11th defendant pleaded that door No. 67, East Perumal Maistry Street, Madurai was leased out in his

favour which figured as item No. 4 in the 1st of properties attached to the plaint on a monthly rent of Rs. 10,000. The 1st defendant had also

instituted a rent control proceedings to deposit the rent with respect to the tenancy premises under his occupation. The 11th defendant further

pleaded that he was not aware of any of the dispute between the parties and only from the plaint the 11th defendant came to know about the

dispute between the parties.

On the said pleadings, the trial Judge framed the following nine issues for consideration:

(1) Whether the encumbrance and alienations of items 3 and 4 of the plaint schedule are not for family necessity and so are not binding on the

plaintiffs?

(2) Whether the 1st defendant had mortgaged item 3 of the plaint schedule and alienated item 4 of the plaint schedule for family necessity and so

they are binding on the plaintiffs?

(3) Whether items 1 and 2 were partitioned between defendants 1 to 3 as alleged by defendants 2 to 5?

(4) Whether the 6th defendant is a bona fide mortgagee for value without notice of defective title of the first defendant?

(5) Whether the 7th defendant is a bona fide purchaser of item 4 for value without notice of defective title of the first defendant?

(6) Whether this suit is bad for partial partition as alleged?

(7) Whether this suit is bad on the ground that no prayer to set aside the mortgage and sale is asked for?

(8) Whether the plaintiffs are entitled to costs and, if so, against whom?

(9) To what reliefs, if any are the plaintiffs entitled?

The plaintiffs examined their mother as P.W.1 and marked Exs.A-1 to A-14, while the first defendant had examined himself as D.W.1 and the

7th defendant as D.W.2. The defendants marked Exs.B-1 to B-9.

The trial Court on issues 1 and 2 held that the encumbrance created by the first defendant in respect of times 3 and 4 are not binding on the

plaintiffs. On the 4th issue, the trial Court held that the mortgage by the first defendant in favour of the 6th defendant is not binding on the plaintiffs

and the sale by the first defendant in favour of the 7th defendant is not binding on the plaintiffs. While issues 1, 2, 4 and 5 were answered in favour

of the plaintiffs, on the third issue, the trial Court held that the plaintiffs are entitled to 2/3rd share and also held that the partition of suit items 1 and

2 between the brothers under Ex.B-1 is true and in the light of the said findings, held that the plaintiffs 1 and 2 are each entitled to 1/3rd share in

1.40 cents allotted to the share of the first defendant in the said partition Ex.B-1, dated 1.7.1984. The 6th issue had been answered in favour of

the plaintiffs and it has been held that the suit is not bad for partial partition.

On the seventh issue the trial Court held that the plaintiffs are entitled to avoid the mortgage and sale as they are not binding on them and that

they need not specifically seek for setting aside the said transaction namely, Ex.B-8 of Ex.A-2 sale deed. On the 8th and 9th issues the trial Court

held that the vehicle Matador van is not available with any one of the defendants and the plaintiffs have failed to prove the existence and disallowed

their claim in respect of the van. On the 5th item, deposit of Rs. 18,464, the defendant has already withdrawn the amendment and the Court below

held that the plaintiffs are not entitled to 2/3rd share in respect of 5th item.

The Court below held that the alienation under Ex.B-8 is binding only on the first defendant in respect of his share and not the plaintiffs and

further directed that in the final decree proceedings the suit item No. 1 may be allotted to the share of the first defendant so that the third party,

purchaser of the 4th item of the suit property, would retain the same as far as possible. The Court below relegated the inquiry into mesne profits

under Order 20, Rule 12(2) of the Code of Civil Procedure.

Being aggrieved, the first defendant alone had preferred the appeal and the other defendants have not chosen to prefer appeal presumably

because they have either accepted the decree passed by the trial Court or they were not aggrieved by the decree already granted in favour of the

plaintiffs 1 and 2.

In this appeal, the counsel for the appellant contended that the suit as instituted by the plaintiffs through their mother and natural guardian is not

maintainable, that the suit instituted without seeking to set aside the encumbrance made by the first defendant under Ex.A-2 and A-8 is not

maintainable and that the alienations and encumbrances are for binding necessities and they are being on the plaintiffs. It was further contended that

there is no evidence to show that the first defendant was leading an immoral life and in the absence of such an evidence the Court below ought not

to have surmised that the first defendant was leading an immoral life.

It is further contended that the business carried on by the first defendant is for the benefit of the family and it cannot be held to be a new

venture, nor it could be held that the first defendant has no authority to enter or undertake a new venture.

Per contra, Mr. Dhamodharan, learned Counsel appearing for the plaintiffs contesting respondents contended that the appeal is not

maintainable as other defendants have not preferred any appeal and they have accepted the decree. Hence the appeal itself is not maintainable. It is

further contended that it is not necessary to seek for a specific relief to avoid the sale or encumbrance and it is sufficient if necessary averments are

made in a suit for partition setting out the immoral illegal debts in the encumbrance incurred as well as alienations and it is not necessary to seek for

setting aside the sale or encumbrance. The other respondents also have not supported the first defendant.

Points in this appeal: In this appeal, the following points arise for consideration:

(i) Whether this appeal preferred by the first defendant is maintainable and whether the first defendant is an aggrieved party?

(ii) Whether the alienations effected and encumbrances incurred by the first defendant are for necessity and binding on the plaintiffs?

(iii) Whether the plaintiffs could maintain the suit without seeking to set aside the alienations for encumbrances made by the first defendant?

(iv) Whether the mortgage in favour of the 6th defendant is bona fide and without notice of the plaintiffs'' rights and claims?

(v) Whether the 7th defendant is a bona fide purchaser of item No. 4 for value without notice of the plaintiffs'' rights and claims?

(vi) To what relief the plaintiffs are entitled to?

On the first point, Mr. Dhamodharan, learned Counsel appearing for the respondents 1 and 2/ plaintiffs 1 and 2 vehemently contended that the

appeal is not maintainable as the decree if any is against other defendants and they have not chosen to prefer appeal and therefore this appeal is not

maintainable. It is true that the ultimate decree is against the other defendants who are alienees or whose claims have been negatived by the Court

below. But on that score it cannot be held that the first defendant is not an aggrieved party or that he cannot maintain the present appeal. The first

defendant is an aggrieved party. Not only there are findings against him with respect to his conduct and with respect to his innateness or

encumbrances, but as a party to the said transactions he may have to sustain the alienations or encumbrances, unless the third parties may proceed

against him. The first defendant is interested in sustaining the encumbrances or alienations effected by him and his conduct had been challenged as

avyavaharika. Merely because the decree is against the other defendants, who are alienees, it cannot be held that the first defendant is not an

aggrieved party. The first defendant is entitled to maintain the appeal.

It may be that the persons presently affected would be the alienees or in whose favour the encumbrance were created, but on that score it

cannot be held that the first defendant is not an aggrieved party. It may be that the Court below had given a direction to allot the portion alienated

within the share of the first defendant as far as possible. But even this also will not disable the first defendant from preferring this appeal.

In terms of Section 96 of the CPC any person aggrieved by the judgment and decree who suffers a decree is entitled to maintain an appeal. u/s

96 of the Code, an appeal may lie from an original decree passed by any Court exercising original jurisdiction to the Court authorised to hear the

appeal from the decision of such Courts. It is true that this Court has held that a party not aggrieved by a decree is not competent to appeal against

the decree on the ground that an issue is found against him. But in the present case it is not mere finding alone which is against the first defendant,

but substantial portion of the decree and issues are against not only the defence but also the plea of the first defendant as his alienations and

encumbrances have been held to be invalid in so far as the plaintiffs'' share is concerned. Further the present appeal has been preferred as the

decree is against the first defendant as well and therefore the present appeal is maintainable. The objection raised by Mr. R. Dhamodharan in this

respect is overruled and this point is answered in favour of the appellant.

All the other points framed could be considered together as they are interrelated and material evidence to be considered are the same. The

plaintiffs are brothers and Vasanthadevi through whom the suit has been instituted is their mother. The first defendant is the father. The defendants

2 and 3 are the brothers of the first defendant. The 4th defendant is the sister of the defendants 1 to 3. The 5th defendant is the mother of the

defendants 1 to 4. Defendants 6 and 7 are third parties in whose favour the first defendant had mortgaged the properties. Defendants 8 and 9 are

the Banks where certain investments have been made. The 10th defendant is a lessee of the suit 4th item. The said relationship and the status of

mortgagees had not been controverted. It has been fairly admitted by either side in their pleadings that suit items 1 to 4 are joint ancestral family

properties and suit items 5 to 7 were acquired out of the income from items 1 to 4. It is also admitted that there has been no division between the

plaintiffs and their father the first defendant till the date of the suit. There is no dispute about the first defendant''s marriage with Vasanthadevi and

their begetting the plaintiffs 1 and 2 respectively during the year 1980 and 1983.

On 30.9.1982 under Ex.A-1 the first defendant and defendants 2, 3 and 4 effected a division in which division suit items 3 and 4 were allotted

to the first defendant. The first defendant was allotted C Schedule property as seen from Ex.A-1 which is shown as suit items 3 and 4. As seen

from Ex.A-1 the family had no debts as it is seen that there is no allotment of any debt to any of the sharers under Ex.A-1. It is further admitted

that the properties allotted in favour of the first defendant are income yielding and valuable properties.

Ex.A-1 partition is dated 30.9.1982 and within few months, the first defendant mortgaged the suit third item to 6th defendant to secure a loan

of Rs. 7,000. Under Ex.A-5, Ex.B-8, dated 8.7.1983 the first defendant alienated the 4th item of the suit property on 8.7.1983 for a sum of Rs.

48,000. This alienation under Ex.A-5 had been effected within few months from the date of partition under Ex.A-1 by the first defendant. Ex.A-2

mortgage as well as Ex.A-5 alienations have been effected within few months from the date of partition.

On facts there is nothing to show that there was any compelling necessity to raise a loan or to encumber, or alienate the suit property, which is

income yielding city property. One of the items of the property had been let out to the 10th defendant and there was considerable income by the

said lease. That apart the first defendant had sold one of the items allotted in his favour in the partition for Rs. 58,000 which amount has been

invested with the 7th and 8th defendants-Banks in the joint names of the first defendant and P.W.1, the mother of the plaintiffs 1 and 2. The

investment was only Rs. 47,000 and balance amount of Rs. 13,000 was with the first defendant. This is the evidence of P.W.1 and that of D.W.1.

In the light of the financial condition also, it is to be considered, whether the defendant had any necessity much less, compelling necessity to

alienate or encumber the properties?, and whether the alleged manufacturing business was actually carried on or not?, and whether the first

defendant has suffered loss within a short period?

Before taking up the factual aspect of the matter it is essential to trace the legal position as to the binding nature of alienation effected by the

father of the joint family and the burden of proof. In P.B. Ramjee and Others Vs. P.B. Lakshmanaswamy Naidu and Others, Srinivasan, J.,

speaking for the Bench after referring to the earlier Division Bench judgments of this Court in Sampoorna Ammal Vs. Asokan and Others, held

thus:

Learned Counsel for the appellants places reliance on the Division Bench judgment of this Court reported in Sampoorna Ammal Vs. Asokan

and Others, . In that judgment, the Division Bench held that an alienation by the father of the joint Hindu family which is either for antecedent debt

or for legal necessity, will bind the son''s interest in the property and that the burden of proving is on the alienee. The Bench observed that where

the manager or a father of the joint Hindu family alienates the joint family property, the alienee is bound to inquire into the necessity for the sale and

the burden lies on him to prove either there was a legal necessity in fact or the alienation by the father was for the discharge of an antecedent debt

or that he made proper and bona fide enquiry as to the existence of such necessity. But in the same paragraph, the learned Judges observed that if

the challenge to the alienation is on the ground that the antecedent debts incurred by the father were tainted by immorality, it is for the sons to

prove that the antecedent debts were immoral and also that the purchaser had notice that they were so tainted. The last proposition of the learned

Judges will apply on all fours in this case. The plaintiff has come to Court with a specific case that the debts incurred by his father, were tainted by

immorality. Hence, the burden is on him to prove the same.

In the very same pronouncement the Division Bench further referring to the earlier two Full Bench judgments in C.R. Ramaswami Aiyangar,

represented by his mother and next friend Lakshmi Ammal Vs. C.S. Rangachariar and Others, and Sankaranarayana Pillai and Another Vs.

Kandasamia Pillai, laid down that a minor need not seek for setting aside the sale if he is not an eo nominee party and if he is an eo nominee party

the minor co-parcener has to avoid or cancel the sale transaction by seeking for such a relief specifically. The Division Bench while overruling the

judgment of the single Judge in V. Nataraja Iyer and Others Vs. Arunachalam and Others, held thus:

We are of the opinion that that proposition has been too widely stated by the learned Judge in that case, and the two judgments of the Full

Bench referred to by the learned Judge, one in C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal Vs. C.S.

Rangachariar and Others, and the other in Sankaranarayana Pillai and Another Vs. Kandasamia Pillai, do not support the said proposition.

In the former case, namely, C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi Ammal Vs. C.S. Rangachariar and

Others, the Full Bench has gone one step further and held that in a case where possession has passed on to the alienee, there should be a prayer

for setting aside the transactions before the plaintiff could recover possession from the said alienee with regard to the decrees passed against the

minor children in which they had been eo nominee impleaded as parties, the Full Bench held that they should pay prescribed Court-fees u/s 7(iv-A)

of the Court-fees Act as amended in Madras and they must be held to have impliedly asked for their cancellation and must accordingly stamp the

plaint ad-valorem. Thus, the propositions laid down by the Full Bench do not go to the extent of saying that if an alienation is made by a

father/Manager describing himself as guardian of the minor children who are members of the joint family, there is ""no necessity to pray for setting

aside the transactions.

On the other hand, the subsequent Full Bench judgment in Sankaranarayana Pillai and Another Vs. Kandasamia Pillai, has placed the matter

beyond doubt by answering two questions referred to them in the following manner: ""Our answer to the first question is that if the minor is an eo

nominee, a party to a sale deed or other document of alienations, he must sue for the cancellation of the document u/s 7(iv-A) of the Court-fees

Act and it is not enough if he applies for possession u/s 7(iv) of the Act; and to the second question our answer is that there can be distinction

whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to

be set aside."" There is no doubt whatever that the Full Bench has decided against the propositions now contended for by learned Counsel for the

appellant on the strength of the judgment in V. Nataraja Iyer and Others Vs. Arunachalam and Others, .

A Division Bench of this Court, in which one of us was a party, had recently on occasion to consider the question in Sridharan and Others Vs.

Arumugam and Others, and it has held that in so far as the documents in which the minor children are made parties, they are bound in law to pray

for setting aside the same and without such prayer, the suit is not sustainable in relation to those documents.

In fact the earlier Full Bench of this Court in Sankaranarayana Pillai and Another Vs. Kandasamia Pillai, laid down, where a minor is not an eo

nominee, a party to the transaction and the transaction is on behalf of a joint family of which the minor is a member, he could always ignore the

transaction as not binding on the family and can seek to recover possession.

The Full Bench also laid down that where a minor is an eo nominee, a party to a sale or other document of alienation by a guardian which he

seeks to avoid it is not enough for him to merely sue for possession and pay Court fee only for possession, but it is essential that he should seek for

cancellation of the document and pay appropriate Court-fees, while pointing out that it makes no difference whether the sale deed is executed by

the guardian of the minor as guardian or as manager of the joint family and in either case the transaction has to be challenged and set aside. In other

words, when he is an eo nominee party, it is not open to the minor to ignore the transaction and seek possession of the property. The legal position

as held in the pronouncements holds the field as no dicta to the contra had been cited at the hearing.

Alienation made by father neither for legal necessity nor for benefit of the estate, nor for payment of antecedent debts is not valid and not

binding on the minor. For judging the validity of such transactions or alienations each transaction should be examined independently.

If the alienation is not avyavaharika or tainted with immorality or illegality and the debts were antecedent in fact as well as in time to the

alienation, then the alienation made by father will be binding and not otherwise. In Hindu Law, the Manager of a joint Hindu family has power to

alienate the joint family property for value so as to bind the interest of both adult and minor coparceners in the property, provided the alienation is

made for legal necessity or for the benefit of the estate. Further, whether a transaction is for the benefit of the family or not, it would depend upon

the facts and circumstances of each case. It should be of a defensive character or it could be one for the benefit of the family.

In Controller of Estate Duty, Madras v. Alladi Kuppuswami (1977) 3 S.C.C. 385, the Apex Court while referring to six essential

characteristics of a coparcenary held that there can be no alienation of the properties without the concurrence of the other coparceners unless it is

for legal necessity.

In the present case on 30th of September, 1982 by Ex.A-1 the defendants 1 to 4 affected a division among themselves. As seen from the

partition the properties are not only income yielding properties, but no debt has been allotted to the share of the first defendant. The family of the

first defendant on the date of partition consisted of the first defendant, his wife and the first plaintiff, only minor son who is of tender age. However

on 23.4.1983, the first defendant under Ex.A-2 mortgaged one of the city properties in favour of the 6th defendant to secure repayment of Rs.

7000. The second plaintiff was born on 25.6.1983. Even before the mortgage the first defendant was living away and he was not living in the family

house much less with his wife. On 8.7.1983 within two weeks from the date of birth of the second plaintiff, the first defendant had alienated the

very same mortgaged property in favour of the 7th defendant for himself and on behalf of the minor first plaintiff. On 30.7.1 983 as well as on

12.8.1983 Exs.A-6 and A-7 publications have been effected to the effect that the alienation by the first defendant is not binding on the minors or

their share. Ex.B-1 is dated 1.7.1984 which is a partition deed among defendants 1 to 5. Even here also only valuable income yielding city

properties were allotted to the share of the first defendant and no debit was allotted to his share.

On 10.7.1983 immediately after Ex.B-7 the first defendant had entered into a partnership with one Thiagarajan to carry on the manufacture of

soap as seen from Ex.B-7. Just before B.7 on 8.7.1983 under Ex.A-5, Ex.B-9, the defendant alienated valuable city property allotted to him in the

partition in close proximity for the alleged new business. The alienation does reflect the conduct of the first defendant. The first defendant married

the plaintiffs mother Vasantha Devi during 1971. The first plaintiff was born during the year 1980 and the second plaintiff was born during the year

1983. Till 30th September, 1982, the first defendant and his brothers were living jointly and only under Ex.A-1 on 30th September, 1982 a

division was effected between first defendant and his brothers. The first defendant was allotted suit item 3 and 4 in the said partition.

It is the case of the plaintiff that immediately after the partition the first defendant was leading an immoral life, deserted his wife and children and

was living at Karunanidhi Nagar, in fact with other women of infamous character. The suit properties allotted to the first defendant admittedly, are

income yielding properties.

As already pointed out the first defendant mortgaged the property on 23.4.1983 for a sum of Rs. 7,000 in favour of the 6th defendant. The

mortgage was in respect of family house. Closely following thereon, the first defendant had alienated the 4th item in favour of the 7th defendant for

a consideration of Rs. 48,000. According to the plaintiff the said mortgage and alienation are not binding on the minors and therefore Ex.A-2 and

A-3 are not binding on the share of the plaintiffs. It is the contention of the 7th defendant that the first defendant was carrying on business in soap

while the plaintiffs denied the same.

Under Ex.A-1 partition the first defendant was given cash or Rs. 18,464 and it was in deposit with the 8th defendant- Bank. On the date of

partition the first defendant was allotted a house in Pacharisikara Street valued at Rs. 58,000. The plaintiffs have not included the house property

located in Pacharisikara Street as the sale proceeds have been investigated along with the sum of Rs. 40,000 in the suit names of the first defendant

and his wife P.W.1. After the said investment a sum of Rs. 13,000 was available with the first defendant.

D.W.1 admitted investment of Rs. 37,000 in the Bank in the joint names of the first defendant and P.W.1 his wife. Thus the first defendant was

in possession of substantial cash on the date when he encumbered the property under Ex.A-2 mortgage and obviously there was neither a

necessity much less a compelling necessity for the first defendant to mortgage or to sell the property under Ex.A-2 and the sale under Ex.B-8 for

Rs. 48,000 as well.

It is the evidence of P.W.1 that after the alienation of Pacharisikara house, the defendant left the family. Ex.A-2 is silent about the requirement

for raising a mortgage loan. The second plaintiff was born on 24.8.1983 as seen from Ex.A-4. The first defendant was not even aware of the birth

of second plaintiff when he alienated the suit first item in favour of the 7th defendant under Ex.B-8. The alienation by the first defendant was after

his leaving the family while he was leading a wayward life. On the date of mortgage was well as the alienation the Bank deposit was available and

apart from that there was income from the family properties. Therefore it is clear that the alienation as well as the encumbrance is not for binding

necessity.

The alienation not being one for necessity, nor to discharge the binding antecedent debts, it is clear that alienation of encumbrance is not

binding on the share of the plaintiffs. It is the evidence of P.W.1 that D.W.1 had been leading an immoral life, there is nothing to show that the

alienation or encumbrance is for necessity. Further within few months it is no known as to how the first defendant had incurred heavy debt or loss

in the alleged soap manufacturing business carried on by him even assuming that the new enterprise is not an avyavaharika act.

It is the evidence of P.W.1 that the first defendant was spending his time with Thiagarajan in the company of women besides he was addicted

to drinks and which has lead to closure of the business. It is the conduct and wayward He which the first defendant was leading which had made

him to incur debts which are avyavaharika and they are not binding on the share of the plaintiffs.

In fact as seen from Ex.A-3 a letter written by the first defendant while he was in judicial custody he had expressed unconditional regret for all

his activities besides intimating that he has been arrested by the local police and requested P.W.1 to arrange for his bail, besides requesting her to

bring the first plaintiff to the jail. In the said letter the first document had admitted his misdeeds and misadventures as well. It is seen that the first

defendant was living away from the family and he had not only deserted the plaintiff, but also the plaintiffs 1 and 2 and the evidence of D.W.1 also

to a greater extent supports the plaintiff case.

On the facts and evidence, the trial Court had rightly held that the first defendant was leading an immoral and wayward life. The first defendant

had not produced any account or any books of account of documents to show that he had sustained loss in the soap business carried on by him

which had lead to his alienating the properties. Thus the alienation is not for binding necessity and the said alienation by the first defendant is binding

only on his share and not on the share of plaintiffs 1 and 2. It is admitted that the family had agricultural income yielding properties besides house

property yielding rental income, besides they had considerable amount in deposit with the bank. The defendant alone was living separately and he

did not even care either for his wife P.W.1 and his two young sons.

Further it is extraordinary for the first defendant to contend that he was not aware of the birth of the second plaintiff on the date when he

executed the sale deed, which would show that he had been living on his own and away from the family and leading an immoral life as deposed by

P.W.1. In the family partition the first defendant was allotted valuable properties in the city of Madurai. The properties are situate in the heart of the

town, besides they are income yielding. Therefore it is clear that neither there was any necessity at all much less binding necessity for the defendant

to raise a loan or to alienate or encumber the joint ancestral family properties. There is nothing to show that in the business carried on by the first

defendant he had incurred huge loss. The evidence of D.W.1 in this respect is very scanty, highly insufficient and unsatisfactory. The first defendant

and P.W.1 had made investments in the Bank and they are lying to their credit, besides rental income from the house which are in the occupation

of the two of the defendants. The first defendant had also income yielding agricultural lands. Thus, it is clear that the encumbrances and alienations

effected by the first defendant are not for binding necessity are tainted with illegality immorality and the same will not bind the minors share.

On the date of alienation to the 7th defendant the plaintiffs were born and the contention that the second plaintiff was not born on the date of

sale cannot be sustained it is of no consequence as he could always challenge the same. The value for which the property had been sold also is

admittedly far below the market value as spoken to by P.W.1 and the evidence of D.W.1 had been rightly rejected by the trial Court. Though Mr.

R. Dhamodaran learned Counsel for the appellant sought to rely upon the evidence of D.W.1, the said evidence of D.W.1 had been considered by

the trial Court elaborately and he is no reason for this Court to take a different view.

It is true that Ex.A-2 has been acknowledged by the first defendant for himself as well as on behalf of the minor plaintiff when he mortgaged

one of the items of the suit property to secure repayment of Rs. 7,000. Ex.A-4 is the birth extract of the second plaintiff and it would show that he

was born on 26th June, 1983. Ex.A-5 is the sale deed which was executed by the first defendant for himself and on behalf of the first defendant

Sasikumar as his guardian. Hence, in respect of the encumbrance and alienation the first plaintiff is an eo nominee. The first defendant had executed

those two documents.

Admittedly on the date of execution of the mortgage deed as well as the sale deed, P.W.1 was living away along with plaintiffs 1 and 2 in her

mother''s place and the first defendant was not in custody of the minor children. Ex.A-6 is the notice caused on behalf of the plaintiffs 1 and 2 as

well as on behalf of their mother warning the public about the alienation if any effected by the first defendant and putting the public on notice that

the sale deed if any by the first defendant is not binding the share of the minor plaintiffs 1 and 2. To the said notice the first defendant had issued a

reply. Closely following this paper publication Ex.A-9 notice has been issued on 10.8.1983 to which under Ex.A-1, a reply had been sent under

Ex.A-13 the tenant of one of the suit properties viz., the 10th defendant, had filed a deposit application before the Rent Controller impleading the

plaintiffs as well as their mother and the first defendant.

A perusal of the above exhibits as well as evidence of P.W.1 would show that Exs.A-2 and B-8 have been executed by the first defendant for

himself and as the guardian of the minor first plaintiff. It is therefore clear the first plaintiff is a eo nominee party.

As seen from the plaint averments, the plaintiffs 1 and 2 have merely sought for partition of their respective shares while pleading that the

alienations by the first defendant is avyavaharika and not being on their shares.

The first plaintiff being an eo nominee party as has been held by the Full Bench and Division Bench judgments, referred to above, should have

sought for setting aside the alienations or should have sought for cancellation of the alienations as well as the encumbrances which he has miserably

failed. Therefore following the pronouncement referred to above in so far as the first plaintiff is concerned his failure to seek for cancellation of the

mortgage deed and sale deed is fatal to his claim and in other resort he will be entitled to a partition.

As regards the second plaintiff the said two transactions, namely encumbrance as well as the alienation are not binding on his share as he was

not an eo nominee party to the said two transactions and he is entitled to seek for partition of his share in respect of the suit property dealt under

Ex.B-9, Ex.A-5. To this extent, the judgment and decree of the Court below has to be modified.

As already pointed out it was contended that it is for the alienees to prefer an appeal and not for the first defendant and so far as the alienees

have not challenged the judgment and decree, there can be no interference in this respect. But the first defendant who is he alienor has to sustain

the alienations effected by him less he has to face action for breach or damages and therefore he could as well challenge the conclusion arrived at

by the trial Court. Excepting the above contentions no other contention has been advanced by the learned Counsel for the appellant as well as the

respondents.

In the result, this Court reject the first plaintiff''s claim of share in respect of the property covered by Ex.B-9, sale deed, allow the appeal only

to this limited extent and in other respects, this Court confirm the judgment and decree of the trial Court. All the points are answered in the above

terms. The parties shall bear their respective costs in this appeal.