Duggirala Sadasiva Vittal vs Bolla (sic)attain and others

Umamaheswaram, J.—The 2nd defendant is the appellant. The suit was filed by the 1st respondent herein for specific performance of an agreement of sale executed by the 1st defendant on his own behalf and also on behalf of his minor son, the 2nd defendant-appellant herein. The agreement was entered into on 22-8-1949 for a sum of Rs. 12,000/-The 1st, defendant agreed to sell the house situated in Eluru, West Godavari District. He raised various defences resisting the plaintiff''s suit.

He contended that the agreement of sale was not true. He further urged that under the contract of sale a sum of Rs. 12,000/- had to be paid in addition to the plaintiff discharging the mortgages due on the property. It was also stated that the plaintiff was not ready and willing to perform her part of the contract and that specific performance ought not to be decreed. His son, the 2nd defendant, represented by his mother''s aunt pleaded that the contract of sale was not for legal necessity and that the contract should not be enforced.

He also alleged that there was a prior oral partition between him and his father and that his share could not be agreed to be sold by his father. The 3rd defendant to the suit was the mother of the 2nd defendant and the 4th wife of the first defendant. Her case was that she obtained a maintenance decree against her husband and that a charge was created over the house. Defendants 4 and 5 were the tenants of the house.

The Subordinate Judge of Elueu framed nine issues in the suit. On the evidence he came to the conclusion that the suit agreement was true and not ante-dated as alleged by the defendants. He founded that the property was the self-acquired property of the father. He held that even assuming that it was joint family property, the contract of sale was executed to discharge the mortgages due on the property as also for the discharge of the debt due to the 3rd defendant.

He held that the plaintiff was ready and willing to perform her part of the contract and it was the 1st defendant that defaulted. He negative the case of the 2nd defendant that there was an oral partition between him and his father. In the result, he decreed specific performance of the contract of sale as prayed for. The 2nd defendant has consequently referred the appeal.

Sri Sankara Sastri, the learned Advocate for the appellant, contended that the Court below was wrong in holding that the suit property was the separate property of the father. He relied upon the terms of the agreement of sale in which it is recited that for the purpose of discharging the mortgage debt due to Jakka Balanjaneyulu and other sundry debts and for meeting other family expenses, the terraced house belonging to him and his son was sold.

He next invited our attention to partition deed executed between the 1st defendant and his son Rama Rao on 4-11-1935. A reference is made In the partition deed to the mediation effected on 14-9-1955 and the execution of partition lists between the 1st defendant and his son. The house fell to the share of the 1st defendant. Sri Sankara Sastri contended that the father treated the house as joint family property and took the house for his share.

The document that was relied on by the plaintiff for proving that the property was the self-acquired property of the father was Exhibit A-14, a mortgage executed by the 1st defendant on 4-11-1935 in favour of Konduri Gangaiah. In describing the property it is stated that the terraced house was constructed by him personally with his own self-acquired funds on the site purchased by him on 18th November, 1923 from Basavaraju Venkatasubbammra. The sale deeds relating to the suit are marked as Exhibits A. 7 and A. 8.

They do not show whether the consideration was paid out of joint family funds or out of the self-acquisitions of the 1st defendant. The Subordinate Judge relied on the recital in Exhibit A-14 in coming to the conclusion that the property was the self-acquisition of the 1st defendant. He did not attach due importance to the partition deed or the agreement of sale. Under those documents the house was treated as joint family property and was allotted to the share of the 1st defendant.

It is clear law that a person might impress his self-acquired or separate property in whole or in part with joint family character. He might throw it into hotchpots or blend it with joint family property or by a declaration of clear intention convert the self-acquired property into joint family property. It is not necessary that he should convert the entire self-acquired property into joint family property or that he should own Joint family property in order to do so.

By a clear expression of intention such as by a statement in a deposition or by an affidavit or by executing a document or by course of conduct he may alter the character of the self-acquired or separate property into joint family property. No formalities, whatsoever, are required for impressing the self-acquired property with the character of Joint family property. In R. Subramania Iyer Vs. The Commissioner of Income Tax, Madras, a Bench of the Madras High Court has taken the same view and we agree with that decision. The relevant observations at page 407 (of Mad LJ) : (at p. 624 of AIR) are as follows:

Under the Hindu Law there is no necessity for joint family property to exist in order that there may be a joint family. The assessee and his son undoubtedly constitute members of a joint Hindu family. They might have started with no ancestral nucleus or other joint family property but there was nothing to prevent the assessed from impressing upon any self-acquired property belonging to him the character of joint family property.

No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separation property to abandon his separate rights and invest it with the character of joint family property.

We have no doubt, on the facts of this case, that even on the footing that the house was originally self-acquired property, the father treated it a joint family property by including it in the partition deed and taking it for his share and agreeing to pay a sum of Rs. 500/- to the son in lieu of the house. We are therefore of opinion, differing from the Subordinate Judge, that the suit house was joint family property.

The next question that arises for consideration is whether the father was competent to enter into the contract of sale and whether the contract was for purposes of legal necessity. It is admitted that there were two mortgages executed by the father over the property Ex. A-(sic) was executed by the father for a sum of Rs. 1,500/- on 15-5-1945. The amount was borrowed for the marriage of his daughter Sitharamamm(sic). He executed a further mortgage on this property on 15-1-1947 marked as Ex. A-l.

This mortgage was for the discharge of two promissory notes executed by him one on 21-1-1945 marked as Ex. 6 and another permission note dated 14-9-1946 marked as Ex A-5. Exhibit A-6 was executed by him for discharging a promissory not debt due to Gandikota Sobhanachlapathi Rao. The amount due under Ex. A-3 w(sic) borrowed for discharging debts contracted by hi(sic) for his daughter''s nuptials. The interest d(sic) under Ex. A-5 was also included as part of the consideration for Ex. A-4.

The contention of Sri Sankara Sastri w(sic) that Sitaramamma, for whose marriage the de(sic) was contracted under Ex. A-3, was a minor ag(sic) 12 and that the mortgage contravened the provisions of the Child Marriage Restraint Act X of 1929. There is no evidence that the mortgage was ever aware that Sitaramamma was a min(sic). It cannot therefore be said that his object lending the amount was unlawful or that the provisions of the Act were intended to be contravened.

There is also no force in the contention the amount lent for discharging the debt contracted for the daughter''s nuptials is invalid. The plaintiff''s husband stated that he was not aw(sic) that the mortgage amount was borrowed for unlawful purpose The 1st defendant has not a deposed that either the lender under Ex. (sic) or the plaintiff was ever aware of the illegal unlawful object. We are therefore clearly of (sic)nion that the mortgages are valid and bind upon the 2nd defendant. The amount due under he two mortgages amounted to Rs. 36,757-8-0 and was paid by the plaintiff''s husband.

It is also in evidence that a sum of Rs. 4,000/- was due by the 1st defendant to his (sic), the 3rd defendant. The 1st defendant examined as D.W. 4 deposed that he utilised the (sic)ewels of his wife for his own purposes ana that the executed a promissory note for the monies due (sic) her. The appellant herein did not cross-examine his father or contend that no such money was due to her. The 3rd defendant examined herself as D.W. 14. She deposed how her husband (sic)ld her bangles, Kasulaperu and a gold chain and how he executed a promissory note in her (sic)vour.

Though the plaintiff cross-examined her establish that the oral partition was false, the appellant herein did not cross-examine her that amount was payable under the promissory (sic)te. There are no sufficient reasons to disbelieve evidence of D.w. 4 and D.W. 14 that a sum Rs. 4,000/- was due to the 3rd defendant. The (sic)int urged by Sri Sankara Sastri was that there as no reference to this promissory note debt in (sic)e agreement of sale or in the plaint. We are (sic)t prepared to take the view that from the omission to refer to this debt in the agreement of (sic)e or in the plaint this debt is not true.

It is clear from the records that the father, (sic)o is an experienced and clever Karnam, set his wife and son to issue registered notices him so as to avoid the contract of sale. The maintenance suit brought by his wife appears to a collusive one. It is established beyond doubt at the father, the mother and the 2nd defendant are living together and that the oral parti(sic) set up by them is absolutely untrue. In the circumstances, we have no hesitation in coming the conclusion that the debt due to the mother a true one.

In this view, it is established beyond doubt recording to the plaintiff, it was fetching Rs. (sic)00/-. The house, was, according to the 1st defendant fetching, only a rent of Rs. 45/- though (sic)ording to the plaintiff it was fetching Rs. (sic). There were two mortgage debts due on the property. There, was no other method of discharged the mortgage debts except by the sale of the (sic) property i.e., the house. The mortgagee under A-3 was examined as P.W. 3 and he deposed (sic) he pressed the 1st defendant to pay off the mortgage debt due to him as also to his mother (sic)er Ex. A-4. In the circumstances, there was other alternative left to the father except to the house.

Sri Sankara Sastri contended that the (sic)er need not have sold the entire house but only a portion. There is no evidence that the (sic)se is in two separate portions or that it could (sic)old in two convenient lots. The house appears (sic) a single and indivisible one. The father was (sic)fied in entering into a contract of sale of the (sic)re house though there was legal necessity to the extent of Rs. 7,700/-. Though for the poses of the suit, it is made to appear that father the mother and the son are not on (sic)pable terms there can be no doubt that they all living together and that the defence is out (sic)erd with a view to defeat the rights of the plaintiff. The agreement of sale is consequently (sic)ing on the 2nd defendant.

Having carefully perused the Judgment the relevant evidence, we have no doubt that oral partition set up by the appellant is not (sic). The ration card Ex. A-15 clearly shows that this and defendant and his mother were living with the 1st defendant. The Subordinate Judge has discussed this question in paragraphs 25 to 28 and found that the oral partition is not true. There is, also no force in the contention that the plaintiff was not ready and willing to perform her part of the contract and that she had not the money to pay in accordance with the terms of the contract.

She issued notices to the 1st defendant and even purchased stamp papers for the document being executed. In the plaint, she clearly set out all these facts and stated that she was willing to deposit the balance, the Subordinate Judge has accepted the evidence of the plaintiff and found these issues in her favour. We therefore agree with the conclusion of the Subordinate Judge that the plaintiff is entitled to a decree for specific performance as against defendants 1 and 2.

In the result the appeal fails and is dismissed with costs of the 1st respondent.