Devraj and Others vs Ramrao and Others

A.V. Chandrashekara, J—Heard the learned counsel for the appellants. Perused the records.

The divergent judgment passed by the Judge of the Fast Track Court at Basavakalyan in R.A. No. 12/2006 is called in question. The appellants are the plaintiffs in a suit bearing O.S. No. 62/2003 which was pending on the file of the Court of Civil Judge (Sr. Dn) at Basavakalyan.

The appellants had filed a suit for the relief of partition and separate possession in respect of suit properties described as schedule ''A'', i.e. 5 acres 39 guntas of land in Sy. No. 443/A of Narayanpur village and a house bearing TMC No. 24/11 as described in schedule ''B''. The said suit had been decreed, granting 1/7th each share to the plaintiffs, i.e. 5/7th share to the plaintiffs together. The sale deed executed by defendant No. 1/Ramrao in favour of defendant No. 3, vide document No. 2812/99-00 is held to be not binding on the plaintiffs'' share and it is held to be null and void. Sale consideration is order to be returned by the plaintiffs to defendant No. 3.

Against the said judgment and decree 3rd defendant in O.S. No. 62/2003, the purchaser has chosen to file an appeal in terms of Section 96 of CPC before the Court at Bidar, which was withdrawn and transferred to the Fast Track Court Basavakalyan, Dist: Bidar and numbered as R.A. No. 12/2006. Ultimately, the said appeal has been allowed and following order is passed.

"In the result, the R.A. filed by the appellant/Defendant No. 3 praying to set aside the judgment and the decree of the Trial Court in O.S. No. 62/2003, dated 28.03.2006 is allowed in part, the judgment and decree passed by Civil Judge (Sr. Dn) Basavakalyan with respect to the suit schedule ''A'' landed property is set aside and the judgment and decree of the Trial Court with respect to ''B'' House property is confirmed and the finding of the Trial Court on issue No. 2, 4 and Addl. Issue No. 1 is confirmed.

The plea raised in the cross objection filed by the Respondent/plaintiff regarding finding of the Lower Court on issued No. 2, 4 and Addl. Issue No. 1 is hereby set aside.

Under the circumstances, the parties are directed to bear their respective cost of this R.A. proceedings.

Draw decree accordingly,

Send the copy of the judgment along with the original file to the Lower Court to the Lower Court at an earliest date for further proceedings in accordance with law".

Plaintiffs are aggrieved by the judgment dated 17.04.2010, passed by the First Appellate Court. The cross objection had been filed by the plaintiff relating to the deletion of issued No. 2, 4 and additional issue No. 1 and the same is dismissed.

Admittedly, first defendant is the father of second defendant. First plaintiff is the son of first defendant and brother of second defendant. Second plaintiff is the wife of first defendant and mother of plaintiff Nos. 1, 3 to 5 and defendant No. 2 and plaintiff Nos. 3 to 5 are the daughters of second plaintiff and first defendant. The fact that the properties described in schedule ''A and B'' were the ancestral properties of Ramrao, the first defendant is not in dispute. Only 4 acres, out of entire extent of 5 acres 39 guntas in Sy. No. 443/A, as described in schedule ''A properties has been purchased by the defendant No. 3.

On re-appreciation of the evidence, the learned Judge of the First Appellate Court has come to the conclusion that other than this land, first defendant had no property to perform the marriages of his daughters and therefore he had to sell the suit schedule property. This aspect of the matter has been well considered by the First Appellate Court.

Admittedly, first defendant does not have any bad habits and therefore no amount was required for his personal use, as rightly pointed out by the learned First Appellate Court. No acceptable evidence is placed on record to show that the joint family consisting of plaintiffs and defendant Nos. 1 and 2 had sufficient income and the members of the joint family were otherwise engaged in avocation to earn sufficient income. The evidence of P.W. 1 discloses that he is a teacher earning @ Rs. 2,500/- per month.

In a Hindu joint family, normally father will be the Manager of undivided family. If the father is physically or mentally incapable of looking after the affairs of the joint family, the younger senior male member would look after the affairs. Normal presumption is that the senior most male member of the joint family would be the manager and nothing is placed on record to show as to how the plaintiff No. 1 could manage the property.

Evidence of P.W. 1 discloses that earlier to the sale deed, marriages of his sisters were solemnized in the year 1996-1997 and marriage of another sister was performed in the year 2002. Nothing has been placed on record to show that first defendant was addicted to any vices so as to use the income generated from item No. 1 for his alleged vices. On the basis of broad preponderance of probabilities the learned Judge has come to the conclusion that 4 acres of land out of the entire extent of schedule ''A'' property was sold for legal necessity. Defendant Nos. 1 and 2 have not filed any written statement by taking a proper plea.

As rightly pointed out by the learned Judge of the First Appellate Court in paragraph No. 4 of the impugned judgment, no evidence is placed on record to show that the joint family had other sources of income than the one generated from schedule ''A'' property. It is not the case of the plaintiffs that the consideration shown in the sale deed is meager and quite inadequate. Even otherwise a sale deed cannot be set aside solely on the ground of inadequacy of consideration.

What is argued by Sri Ameet Kumar Deshpande, learned counsel for the appellants is that, at the best sale can be held to be valid in so far as share of the first defendant and that the alienation does not bind the share of the plaintiffs or defendant No. 2. It is argued that being a Manager of the joint family, the first defendant could not have sold 4 acres of land with definite boundaries since, the remedy is available to the purchaser to file a suit for general partition and to workout the remedies.

Normally, no person would come forward to purchase an undivided share of a joint family property, taking the risk of filing a suit for general partition. In the instance case, the father was expected to perform the marriages of his grown up daughters and he was in dire necessity of amount to perform their marriages. It is in this regard the father, being the Manager of the joint family, exercised his privilege to specifically demarcate 4 acres of land in order to alienate the same to the third defendant and to pool money for discharging the responsibility of performing marriages.

In the case of Muniyappa Vs. Ramaiah, AIR 1996 Kar 321 : (1996) ILR (Kar) 1883 : (1996) 2 KarLJ 563 , this Court has reiterated that a Manager of a Joint Hindu Family is entitled to alienate the joint family property and that the right of other coparceners is to file a suit for partition and recover possession of his share. It is further made clear that a sale being only voidable alienee can continue in possession only. It is properly avoided. Paragraph No. 12 of the said decision is applicable to the facts of the present case and is reproduced.

"The manager of a Joint Hindu Family is entitled to alienate the joint family property for joint family necessity or for the benefit of the estate, in certain circumstances. Whether the manager is the father or not, will not make any difference. If such an alienation is made by the manager of the Joint Hindu Family of joint family property, the sale would bind not only his share in the property but the share of other coparceners as well. No doubt, the other coparceners may be entitled to file a suit for partition and recover their share if the alienation was not for family necessity or for the benefit of the estate. The burden in such cases will also lie on the alienee to prove family necessity or the benefit to the estate to uphold the alienation by the manager. But that right of a coparcener does not affect competency of the manager to alienate the joint family property. When once such alienation is made, the alienee is entitled to be in possession of the property and right of any other coparcener is to sue for partition and recover possession of his share in the joint family properties. The sale being only voidable unless it is avoided by an action, the alienee is entitled to continue in possession. The position may be different if one coparcener alienates his share alone, but once the alienation is made by the manager of the property, it will be effective until it is properly avoided by the non-alienating coparcener by filing a suit for partition".

This Court does not find any reasons to interfere with the judgment of the First Appellate Court, which has reconsidered the entire evidence in right prospective. No perversity or illegality found in the approach adopted by the First Appellate Court. Accordingly, appeal is liable to be dismissed as unfit for admission, except holding that plaintiffs and defendant Nos. 1 and 2 are entitled are entitled for 1/7th share each in the remaining 1.39 acres in Sy. No. 443/A of Narayanpur village. But there should be a preliminary decree in so far as the remaining extent of land in Sy. No. 443/A of Narayanpur village granting 1/7th share each to the plaintiffs and defendant Nos. 1 and 2. The judgment of the First Appellate Court stands modified accordingly since defendant No. 3 had purchased only 4.00 acres of land in Sy. No. 443/A.

Appeal is dismissed as unfit for admission. In so far as remaining 1.39 acres of land in Sy. No. 443/A there shall be a preliminary decree to the extent of 1/7th share of the plaintiffs.

Parties to bear their own costs.