Manju vs Manjunath

A.V. Chandrashekara, J.—This appeal is filed by defendant No. 1 of original suit bearing O.S. No. 319/1990 which was pending on the file of the Addl. Civil Judge (Jr. Dn.), at Srirangapatna, of Mandya District. Respondent Nos. 1 and 2 are plaintiffs 2 and 3 in the said suit. Respondent No. 3 was the fourth defendant in the said suit. Respondent No. 4 was defendant No. 5 in the said suit. Respondent No. 5 was the plaintiff No. 1 in the said suit. Respondent No. 4 died during the pendency of this appeal and his legal representatives were already on record as respondent Nos. 1, 2, 3 and 5. Suit filed by plaintiffs 1 to 3 for the relief of partition and separate possession seeking 1/4th share each share came to be dismissed after contest.

Appeal filed under Section 96 of CPC by plaintiffs 2 and 3 has been allowed by the learned Civil Judge (Sr. Dn.), Srirangapatna. It is this divergent judgment which is called in question on various grounds as set out in the appeal memo. Parties will be referred to as plaintiffs 1 to 3 and defendant Nos. 1 to 5 as per their ranking given in the Trial Court.

Facts leading to the filing of the present suit are as follows:

Suit schedule item No. 1 is an agricultural land measuring 37 guntas in Sy. No. 28/K of Mogarahalli Village, Srirangapatna Taluk. Suit schedule item No. 2 is a residential house situated in Kallu Manti Village of Srirangapatna Taluk. These properties are the ancestral properties of defendant No. 4 and plaintiffs 1 to 3. Defendant No. 4 Raju sold item No. 1 agricultural land measuring 37 guntas in favour of defendant No. 1 -the appellant herein through a registered sale deed dated 06.06.1990 for valuable consideration and that the said alienation is contrary to the legitimate share of the first plaintiff. Defendant Nos. 2 and 3 who are the brothers of the first plaintiff, were transposed as plaintiffs 2 and 3 during the pendency of the suit, since the first plaintiff did not prosecute the suit. Since the alienation was made by their father Raju, does not bind their share, they chose to file a suit for partition and separate possession.

First defendant chose to file a detailed written statement denying all the material averments. Plaintiffs have been called upon to prove the contents of the plaint. According to the first defendant, fourth defendant, being the Manager of the joint family sold the schedule property for a sum of Rs. 13,000/- on 06.06.1990 through a registered sale deed and that the said sale deed is not the outcome of any fraud, undue influence or coercion, as averred in the plaint. Fourth defendant Raju is stated to have set up the plaintiffs to file a suit and hence the suit is not maintainable either in law or on facts. Suit is stated to be collusive in nature.

After defendant Nos. 2 and 3 were transposed as plaintiffs 2 and 3, first defendant chose to file additional written statement. On the basis of the above pleadings following issues came to be framed:

Whether the plaintiff proves that they are the sons of 4th defendant?

Whether the plaintiffs prove that they are entitled to 3/4th share in suit properties?

Whether the I defendant proves that he is a bonafide purchaser of item No. 1 without notice of plaintiffs right in it?

Is the court fee paid is sufficient?

Is the plaintiff entitled to the reliefs sought for?

Additional issue:

Whether the suit is bad for non-joinder and mis-joinder of parties?

Third plaintiff is examined as PW1 and Appadoraih is examined as PW2. Kamalamma, the mother of plaintiffs is examined as PW3. First defendant who is the appellant herein is examined as DW1. DW2 is none other than the husband of the first defendant. DW3 is one Thimmappa, resident of Mogerahalli Village. Shivegowda is examined as DW4. Copy of the RTC is marked as Ex. P1 and the copy of the sale deed is marked as Ex. D1.

After hearing the arguments and analyzing the evidence, the learned Civil Judge (Jr. Dn.), Srirangapatna, chose to answer issues 1, 3 and 4 in the affirmative and issue No. 2 and additional issue No. 1 in the negative. Ultimately, suit came to be dismissed.

Plaintiffs 2 and 3 chose to file an appeal before the Court of Civil Judge (Sr. Dn.), at Srirangapatna in R.A. No. 46/1999 and cross-appeal was also filed under Order 41 Rule 22 of CPC challenging the finding on issue No. 1. Regular appeal has been allowed and cross-examined has been dismissed vide considered judgment dated 05.07.2006. It is this judgment which is called in question on various grounds as set out in the appeal memo.

After hearing the learned counsel for the appellant, this Court has framed the following substantial question of law for consideration on 07.01.2011:

"Whether the Lower Appellate Court was justified in granting a decree for partition and separate possession of 1/3rd share to the plaintiffs holding that there was no legal necessity to sell the suit property, by reversing the judgment and decree of the Trial Court which held that there was legal necessity for the sale of the joint family property on the basis of the recital in the agreement of sale deed -Ex. D.1 and other materials placed on record?"

Heard the learned counsel appearing for the parties and perused the original records.

What is argued before this Court by the learned counsel for the appellant is that the First Appellate Court has a greater responsibility while upturning the considered judgment of the Trial Court and that the First Appellate Court has not properly reassessed the entire evidence. It is argued that the First Appellate Court has not assigned valid reasons to upturn the well-considered judgment.

The learned counsel has relied upon the decision reported in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., to contend that if the First Appellate Court wants to upturn a well considered judgment, it has come to close quarters and assign its own reasons indicating as to where the Trial Court has gone wrong. He has argued that the contention of the plaintiffs will have to be viewed in the light of the specific averment found in the plaint.

He has further argued that the case of the plaintiffs is one of the first defendant obtaining a sale deed from Raju the fourth defendant by playing fraud and misrepresenting facts. Therefore, he has argued that more acceptable evidence is required in regard to the proof of serious allegations of fraud, coercion and undue influence and misrepresentation. He has argued that the degree of evidence required to prove such special plea is almost akin to the proof beyond reasonable doubt as insisted in criminal cases.

Per contra, the learned counsel for respondent Nos. 1 and 2 has vehemently argued that the plaintiffs have legitimate 1/4th share each and that this alienation so made by father Raju does not take away their legitimate share. It is argued that it was incumbent upon the alienee i.e. first defendant to prove that there was legal necessity for the Manager of the joint family to alienate the property.

Learned counsel for the plaintiffs has relied upon a decision reported in the case of Muniyappa Vs. Ramaiah, to contend that the coparcener can avoid the alienation made by the Manager of the joint family if the same is not for legal necessity.

He has relied upon another decision in the case of Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, to contend that the recitals in a deed of conveyance executed by the Manager of a joint family would not dispense the purchaser to prove the factum of legal necessity.

It is argued that the burden is always upon the purchaser of a joint property to prove the existence of legal necessity for alienation. It is argued that bonafide enquiry is not made in regard to the consideration received by the father while executing the sale deed. It is in this regard, he has relied upon another decision of this Court in the case of Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, . He has further relied upon a decision of a Division Bench of this Court in the case of Ningegowda and Others Vs. K.B. Doddegowda and Others, to contend that onus is on the alienee to prove the reasonable and bonafide enquiry as to the existence of necessity for alienation.

The fact that schedule properties are the ancestral properties of plaintiffs and their father Raju is not in dispute. As a Manager of the joint family, father has every right to alienate the undivided share of a minor. The privilege that a Manager of a joint Hindu family to alienate the undivided share of minors is unquestionable, provided there exists legal necessity for such alienation. On the other hand, the purchaser can also establish that there was pressure on the estate and therefore alienation was made in his favour. Unless the initial burden cast upon the purchaser is effectively discharged, onus does not shift on the plaintiffs. Plea of fraud being played on their father will be of no consequence, whenever a suit is filed to avoid the alienation made by the Manager of the joint family.

In Ex. D1 the copy of the sale deed obtained by first defendant from Raju, father of the plaintiffs, there is a specific reference to the effect that the amount was required for putting up a house. Whether there was absolutely any necessity to put up a house by selling the only agricultural land available for the plaintiffs is not made out. Admittedly, the land in question is an agricultural land and that was the only source of income for the family. Plaintiffs have undivided share in the schedule property. What is argued before this Court is that the purchaser cannot have control over the vendor in regard to the money paid as consideration subsequent to the execution of the sale deed. This Court is unable to accept the said contention. A reasonable and bonafide enquiry is to be made about the existence of the actual legal necessity of the family. Suffice to state that nothing has been culled out from the mouths of PWs. 1 to 3 examined in the present case.

It is true that some useful answers have been culled out from the mouth of PW1 to show that defendant Nos. 2 and 3, who were subsequently transposed as plaintiffs 2 and 3 had coaxed Subramanya to file a suit for partition and separate possession. PW1 has further admitted that his father had also told him to file suit. Whether such an answer would really decide the case of the plaintiffs is the question?

As already discussed, the initial burden is upon the purchaser to show that the Manager had legal necessity to alienate the property or there was pressure on the estate. In the absence of the same, the allegations of fraud, undue influence or misrepresentation of facts found in the plaint will not be of much significance.

What is held by the Hon''ble Supreme Court in the decision of Smt. Rani And Another Vs. Smt. Santa Bala Debnath And Others reported in AIR 1971 SC 1078 is that legal necessity does not mean actual compulsion. It means there must be pressure upon the estate which in law may be regarded as serious and sufficient. It is made clear that onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. It is also clearly enunciated that recitals in a deed of legal necessity do not, by themselves, prove legal necessity, though recitals in a deed are admissible in evidence. But their value vary according to the circumstances in which the transaction was entered into. The recitals found in such a sale deed may be used to corroborate other evidence of the existence of legal necessity.

Admittedly, item No. 1 was the only agricultural land available to the family of plaintiffs and their father Raju. Nothing is forthcoming as to what was the pressure on the family to alienate the only source of income. In this view of the matter, it can be held with certainty that the first defendant did not make any proper or bona fide enquiries about the existence of legal necessity or existence of any pressure on the estate of the joint family.

Admittedly, third plaintiff was a minor when the alienation took place. There is no necessity to seek to set aside the alienation. It is sufficient to seek share and possession thereof with a declaration that he is not bound by the alienations.

It is reiterated by a Division Bench of this Court in the case of Ganapati Santaram Bhosale and Another Vs. Ramachandra Subbarao Kulkarni and Others, that burden of proving legal necessity is on the alienee and recitals in deeds are not sufficient evidence of such a legal necessity.

The cross-objections filed under Order 41 Rule 22 CPC by this appellant before the First Appellate Court in regard to finding on issue No. 1 has been dismissed. Therefore, plaintiffs have been able to exclusively prove that they are the sons of Raju and that the properties in question are their ancestral properties. It is to be reiterated that the alienation so made by Raju, the father of the plaintiffs binds the share of the father only i.e., to an extent of 1/4th share.

The First Appellate Court, being the Final Court of facts, has re-assessed the entire evidence in the light of law governing the alienation of a joint Hindu family property by a Manager. Few words found in the plaint cannot be blown out of proportion to non-suit them. The pith and substance of the plaint filed before the Trial Court and the evidence adduced by the parties would be sufficient to know as to what exactly was the scope and nature of the suit. Suffice to state that the First Appellate Court, being the final Court of facts, has reassessed the entire evidence on the touchstone of intrinsic probabilities by framing proper points for consideration.

The First Appellate Court has not committed any illegality or perversity in allowing the appeal. It has assigned cogent reasons as to where exactly the Trial Court has gone wrong. It has come to close quarters while upturning the well considered judgment. The First Appellate Court has held that if really amount of Rs. 13,000/- had been used to put up a house, some material could have been placed, and the same is not forthcoming.

In this view of the matter, the First Appellate Court has adopted right approach to the real state of affairs. No grounds are made out to interfere with the well considered judgment of the First Appellate Court. No illegality or perversity is found in the judgment of the First Appellate Court.

Accordingly, the appeal is liable to be dismissed.

ORDER

Appeal is dismissed upholding the judgment of the First Appellate Court passed in R.A. No. 46/1999 by the Additional Civil Judge (Sr. Dn.), Srirangapatna.

Parties to bear their own costs.