Khazanchi Mal vs Roop Chand etc.

G.R. Majithia, J.—This judgment will dispose of R. S. A. No. 2044 of (sic) and S. A. O. No. 77 of 1978 since common question of law arises for determination therein.

The facts :-

I have referred to the parties in the body of this judgment as they were described in the plaint. Khazanchi Mal, appellant/plaintiff (in R. S A. No. 2044 of 1978) filed a suit for declaration that the property mentioned in paragraph No. 2 of the plaint was joint Hindu family co-parcenary property and that he had 1/2 share in the properties mentioned in sub paras (d) to (o) of paragraph 2 of the plaint. He sought separate possession of his share in the property by partition. It was alleged that the plaintiff and defendants No. 1 to 15 were members of joint Hindu family governed by Mitakshara Law and that the joint Hindu family owned and possessed the properties the details of which were given in para 2(A to O) of the plaint. Defendant No. 1 was the Karta of the joint Hindu family and the plaintiff washes real son. He was adopted as a son by Chiranji Lal on October 24,1928 and, in the alternative, it was pleaded that Smt Dhipa widow of Chiranji Lal had bequeathed her entire half share in the propeities in dispute in favour of the plaintiff by a registered will on June 27, 1955 ; that he had l/2 share in all the properties mentioned in para 2 of the plaint; that the joint Hindu family was money lender and his properties mentioned in para 2 of the plaint were joint Hindu family co- parcenary properties which were acquired and created with the funds and income of the joint Hindu family that about a year ago. defendants No. 1 to 15 had started claiming that the agricultural land mentioned in para No. 2 Sub-Para A clauses I II, III, IV, sub-para B. sub- para C and half share mentioned in sub-para E and plot mentioned in sub para N were their self-acquired and separate properties; that this claim of defendants No. 1 to 15 was incorrect; defendants No. 16 to 51 claimed that defendants No I to 15 had at adverse time alienated parcels from agrcultural land owned by the joint Hindu family situate in village Hyatpur, tehsil and district Gurgaon, mentioned in para 2 of the plairt, in their favour that defendants No. 16 to 51 being in possession of the said properties had been impleaded as defendants in the present suit because they were bound by the rights of the plaintiff in the joint Hindu family properties and was, therefore entitled to get the same separated by partition free from any incumberances; that the said transfers, if established be held to be adjustable in the half share to which defendants No. 1 to 15 were entitled to in partition.

Defendants No. 1 to 15 in their written statement pleaded that the plaintiff and defendants No. 1 to 15 were not members of the joint Hindu family; that the parties were not joint in food, residence and business; that the transfers in favour of defendants No. 16 to 5l''were mostly made beyond twelve years and that the plaintiff never raised a finger against those transfers and he had no share in the suit property and consequently was not entitled to partition nor adjustment of sales in partition.

Defendants No. 25 to 38, 42 to 44 and 47 to 50 in their written statement, inter alia, pleaded that the suit of the plaintiff was not maintainable in the present form; that the plaintiff could not seek any relief unless he first sought a decree for declaration of the various sales made by defendant No. 1 in favour of vendee-defendants as null and void; that the vendee defendants were bona fide purchasers for value; in the alternative, it was also pleaded that the alienations were made by defendant No. 1 for the benefit of the estate and that of the plaintiff as well and the plaintiff never objected to those alienations nor did he claim any profit or income from defendants No. 16 to 51 and that vendee-defendants 16 to 51 were in actual possession of the lands purchased by them-and mutations had also been sanctioned in their favour.

On the pleadings of the parties, various issues were framed by the trial Judge and issue No. 2! vide order dated March 24, 1976 was treated as a preliminary issue it reads thus:-

"Whether the suit is not maintainable in the present form ? OPD"

The trial Judge found that the plaintiff had not challenged the alienations made by the Katta of the joint Hindu family in favour of defendants No. 16 to 51 and he could do so by filing a separate suit and the suit as framed was not maintainable.

The plaintiff challenged the judgment of the trial Judge in first appeal The first appellate Court partially reversed the judgment of the trial Court holding that the suit as framed was maintainable as the plaintiff had included two other properties, i.e. rural and urban immovable properties and no part of those properties was alienated by the Karta and there was no bar for the plaintiff to claim partition of those two properties. After so holding, the first appellate Court reversed the judgment of the trial Court and remitted the case to it for disposal in accordance with law and the observations made in the judgment. The plaintiff has come up in second appeal against the judgment of the first appellate Court to the extent it has upheld the judgment of the trial Court that the suit in the present form was not maintainable with respect to the agricultural lands out of which the sales were effected by the Karta of the joint Hindu family.

S.AO. No. 71 of 1978 has been filed by one of the defendants. He took exception to the order of remand made by the first appellate Court. According to him. the first appellate Court, after having upset the finding of the trial Judge under issue No. 21 relating to the maintainability of the suit, ought to lave dismissed the suit in toto

Mr. R. S Mittal, Senior Advocate, learned counsel appearing far the appellant/plaintiff, submitted that the Court, below did not comprehend the scope of the suit. He conceded at the Bar that the alienations made by defendants No. 1 to 15 be treated as valid. Ho further submits that the plaintiff does not dispute the correctness of the alienations, made by defendants No. 1 to 15.

Co-parcenary property can-be alienated to pass a good title to the alienee'' by the whole body of co- parceners where they are adults; the manager of a joint Hindu family can alienate the co-parcenary, property provided the same is for legal necessity or for the benefit of the estate. A Hindu father has special power to alienate the co-parcenary , property which no other co-parcener has. In the exercise of these, powers (i) he may make a gift of ancestral immovable property within reasonable limits; (ii) he may sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great grandsons, for the payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. The plaintiff can challenge'' the alienations made by the Karta or by other members of the joint Hindu co-parcenary, if permissible under the law. In the instant case, this question does not arise since the learned Counsel for the plaintiff concedes that the alienations made by defendants No. 1 to 15 be treated as good transactions. He submits that the alienees will get their shares which they are entitled to at the date of alienation on partition. The alienees will step into the shoes of the alienors. In view of the concession made by the learned counsel for the plaintiff, 1 thick it will meet the ends of justice if it is held that the shares of the alienee will be the share to which the alienors are entitled to at the date of alienations. In the light of the concession given by the learned counsel for the plaintiff, the finding recorded by the trial Court under issue No. 21 is reversed and it is held that the suit in the present form is maintainable. The plaintiff does not dispute the power of the alienors to alienate the property. The alienations are deemed to be valid since they have not been made in excess of the shares and are otherwise not found to be bad in law. If the partition takes place, the alienees will step into the shoes of the alienors and they will be entitled to the shares in the joint Hindu family to which their alienors would have been entitled to if the property had been partitioned before the alienation.

The view taken above also receives support from a decisions of the Nagpur High Court in Narayan Bhegwantrao and Anr. v. Namdeo Bal barao AIR 1955 Nag. 209, wherein it was held thus :-

"A co-parcener is entitled to alienate his undivided share in the co-parcenary property. The share of the alienee is the share to which the alienor is entitled at the date of alienation and it does not thereafter fluctuate though subsequent consent of co-parceners may cause it to increase."

For the reasons aforesaid, R S.A. No. 2044 of 1978 is allowed as indicated above. S.A O. No. 77 of 1978 is dismissed. However, these will be no order as to costs.