IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.01.2010 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU A.S.No.1253 of 1994 1. Minor Narayanaswamy 2. Minor Menaka 3. Minor Santhalakshmi alias Saritha [Minors by mother and next friend Tamilarasi] ... Appellants/Plaintiffs vs. 1. J.Mani 2. Sakunthala Ammal 3. J.Kannan ... Respondents/Defendants Prayer: Appeal filed against the Judgment and decree of the Subordinate Judge of Dharmapuri made in O.S.No.35 of 1989 dated 05.04.1994. For Appellants : Mr.P.M.Baskaran Mr.V.Chandrasekaran For Respondents : No appearance. J U D G M E N T In the plaint, the following allegations are contained - 1 [a] The plaintiffs are the son and daughters of the first defendant. The suit properties are ancestral properties of first defendant. In a partition took place on 11.10.1994 between the first defendant and his brother third defendant, the suit properties were allotted to the share of the first defendant. The first defendant was enjoying the properties in the capacity of Karta of the Joint Hindu Family. Hence, the plaintiffs are entitled for 3/4th share and the first defendant has 1/4th share in the suit properties. For the past three years, the first defendant did not take care of the family, having contact with the women of immoral character and he also deserted the mother of the plaintiffs. At times, he used to harass and beat the plaintiffs and their mother at the instigation of his confederates. On 24.11.1984, he drove the plaintiff and his mother from the house. Hence, they are living in the father's house of their mother. For https://hcservices.ecourts.gov.in/hcservices/ the above said immoral activities, the first defendant is attempting to alienate the suit properties. On 22.11.1984, the mother of the plaintiffs demanded partition of their 3/4th share from the first defendant. [b] One Palanisamy, husband of the second defendant and the first defendant are close friends. In order to defraud the rights of these plaintiffs, first defendant approached the second defendant and they have created the sale deed as if it was in favour of the second defendant dated 10.12.1984. The second item was sold by the first defendant in favour of the second defendant for Rs.10,000/-. There is no consideration for the sale deed. The sale is not valid. Even after the execution of the sale deed, the first defendant has been in possession and enjoyment of the properties. There is no legal necessity for such alienation. In the second item, there are tamarind and coconut trees more than the value of Rs.45,000/- standing. In the said sale deed, the existence of trees are not mentioned. [c] Even if it is proved that the sale was effected for proper consideration, still it is not valid to the extent of 3/4th share of these plaintiffs since it was not for any legal necessity. The sale deed does not bind the plaintiffs. Further, as the sale deed was executed pending the suit, it is hit by the principles of lis pendens. Hence, the suit has been filed for partition and separate possession of plaintiffs 3/4th share in the suit properties and also for mense profits. 2.In the written statement filed by the first defendant, the following are alleged. [a] It is true that the properties are ancestral properties of this defendant and they came to the share of this defendant by virtue of the partition deed dated 11.10.1984. But it is not correct to state that the plaintiffs and this defendant were in possession of the properties and in joint possession of the properties as Joint Family members. This defendant sold the properties to discharge the loan obtained from one Pachaiyappa Chettiar of Marandahalli on 19.11.1984. Possession was also delivered to third defendant and this defendant has no interest in the properties. As the sale was effected for meeting the legal necessities of the family, it would bind upon the plaintiffs. It is false to state that this defendant had contacts with women of bad characters and he is a drunkard. It is also denied that he harassed and assaulted the plaintiffs' mother and that he drove the plaintiffs and their mother on 24.11.1984 from the house. https://hcservices.ecourts.gov.in/hcservices/ [b] The plaintiffs' mother without any reasonable cause is separately living. There is no necessity for partition and for rendition of accounts. There was no demand for partition. There is no cause of action. This Court has no pecuniary jurisdiction to try the case. The suit properties are worth about Rs.20,000/- in which the value of the plaintiffs' share would be Rs.10,000/- and hence the District Munsiff Court, Dharmapuri only has got pecuniary jurisdiction. Hence, the suit may be dismissed. 3. The written statement filed by the second defendant contains the following averments. [a] It is denied that the plaintiffs have got half share in the properties. The first defendant sold the properties in the capacity of the manager of the Hindu Joint family. It is not admitted that for the past three years the first defendant was spend-thrift who indulged in immoral activities with women of bad characters and that he is a drunkard. It is also denied that he did not care for the family members and maintain the plaintiffs. He did not drive out the plaintiffs and their mother from the house. [b] To the knowledge of this defendant, the plaintiffs and their mother are living in Marandahalli. This defendant does not know about demand of partition by the mother of the plaintiffs. It is also false to state that the husband of this defendant and the first defendant are friends and in order to defraud the plaintiffs, they conveyed and brought about a sale deed on 10.12.1984. It is also denied that the sale was not effected for legal necessity and that the property would fetch more than Rs.45,000/-. This defendant purchased the properties as per the then market value. In order pay off the debt incurred for the family necessity obtained from Pachaiyappa Chettiar, to discharge the other small borrowings and for family expenses, the first defendant sold the properties to this defendant for Rs.10,000/- on 19.11.1984. Hence, the sale would bind upon the plaintiffs. [c] In the case of passing of decree for partition, the second item may be allotted to the share of the first plaintiff in entirety and the same may be allotted to the purchaser, namely this defendant on the principle of equity, it is not true to state that the sale transaction is hit by the principle of lis pendens. Only after the notice was received by this defendant, she came to know that a suit is pending. There is no cause of action for the suit. Hence, the suit may be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 4.After analysing the merits of the matter, in the light of the oral evidence on record, the trial court has answered the issue against defendant declining to pass a decree for partition. Hence, the plaintiffs in the suit are before this Court with this appeal. 5.The plaintiffs are son and daughters of the first defendant. First and third defendants are brothers. Second defendant is purchaser of the suit properties from the first defendant by means of sale deed dated 19.11.1984, Ex.P.1. The properties were allotted to the share of the first defendant by virtue of a partition deed Ex.A.1 dated 11.10.1984 between him and the third defendant. It is stated that the first defendant was acting a manager of the Joint Hindu Family consisting of himself and the plaintiffs and there was no legal necessity for alienating the properties to third parties. 6.It is the bottom line contention of the plaintiffs that the first defendant got involved himself in immoral activities with women of bad characters and that he is a drunkard. In order to meet out the expenses incurred for the above said immoral activities, he sold the property to the second defendant, it is further added. It is also contended that there is no legal necessity for the alienation and the sale is not at all valid since it is tainted with immorality and that there was no antecedent debts incurred for the benefit of the Joint family and the sale is not at all warranted. 7.The allegations as aforesaid were deposed by the mother of the plaintiffs, P.W.1. P.W.2 is the independent witness who would say that the first defendant used to drink liquor and he was having contacts with women of immoral characters, that he did not maintain the family properly and hence his wife Tamilarasi alongwith her children went to her father's house at Kadaiyampatti Village. 8.In the sale deed, Ex.P1, the recitals would go to show to the effect that the money was needed for the first defendant for maintaining the family, to discharge the loan borrowed from Pachaiyappa Chettiar of Marandahalli and for meeting out the expenses towards the partition deed. It is incumbent upon the plaintiffs to show that there was no legal necessity that the money was not spent for the family necessities and that the first defendant was having bad profile and that he was in the habit of taking liquor. In order to show the above said aspects, the oral testimonies of PW1 and 2 are available. 9.As regards the recitals contained in Ex.B1, they unambiguously show that in order to meet the family expenses, to pay off the loan from Pachaiyappa Chettiar and for the expenditure https://hcservices.ecourts.gov.in/hcservices/ towards the partition deed, the sale was made. The sale consideration was Rs.10,000/-. Rs.5,000/- was due to Pachaiyappa Chettiar. PW1, the second defendant would say in line with her pleadings in her written statement. Pachaiyappa Chettiar posed as PW2 and deposed that the first defendant was engaged in Surugu business in which he incurred loss and hence he discontinued it, that there is no money transaction between himself and the first defendant, that the first defendant represented that he needed money for meeting the expenses to enter into the partition with his brother for which he advanced Rs.5000/- as loan for which he executed a pro-note in his favour, that he returned the pro-note for receipt of the amount from the first defendant after the sale, that the plaintiffs and the first defendant are living in the same house in Marandahalli, Vedakkara Street and that it is not correct to state that the first defendant is a drunkard and he was having immoral contacts. 10.PW3 also says in the same tone that the plaintiffs and the first defendant are residing in the house in Marandahalli, Vedakkara Street, that the first defendant was doing Surugu business but he incurred loss and hence he discontinued the business and that the first defendant is not a man of immoral habits and he is not a drunkard. PW4 is attester to Ex.P1 who supported the versions of the second defendant by justifying the reasons in the form of recitals contained in Ex.P1. He also states about the discharge of loan by the first defendant obtained from Pachaiyappa Chettiar. 11.After carefully going through the oral testimonies of the witnesses as mentioned above, this Court is of the considered view that the plaintiffs and the first defendant are residing under the same roof and only for the purpose of contesting the suit, the first defendant is arrayed as defendant in the suit. No motive has been attributed against DW2 to 4 for deposing against the plaintiffs. By means of their evidence, the recitals in Ex.B1 have been established. There was existing loan payable to Pachaiyappa Chettiar to the tune of Rs.5,000/- and since the first defendant faced loss in his business, he had to obtain loan from third parties to maintain his family for which the sale was warranted. It has been clearly proved that Ex.B1 sale deed was effected by the first defendant for the legal necessities and to discharge the antecedent debt. There is no clinching material to show that the first defendant ignored the family and was involved in the immoral activities having contact with women of loose moral characters and that he was a drunkard. In the absence of the convincing evidence, the Court could not conclude that Ex.B1, sale was tainted with illegality and immorality. This court is of the opinion that Ex.B1 sale is valid by means of which the first defendant has rendered benefits to the Joint Hindu family and in the capacity of the manager of the family, he executed sale. https://hcservices.ecourts.gov.in/hcservices/ 12.The trial court has referred and followed a decision of the Hon'ble Supreme Court reported in AIR 1967 SC 574 [Radhakrishnadas and Another Vs V.Kaluram (Dead) and Others]. The Full Bench of the Apex Court, after referring to the decisions of Privy Council and other High Courts, formulated the principles on this subject as follows - 5.......... “It is well established by the decisions of the Courts in India and the Privy Council that what the alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is Sri Krishnan Das v. Nathu Ram, ILR 49 All 149(AIR 1927 PC 37). In that case the consideration for the alienation was Rs.3500. The alienee was able to prove that there was legal necessity only to the extent of Rs.3,000/- and not for the balance. The High Court held that the alienation could be set aside upon the plaintiffs' paying Rs.3,000/- to the alienee. But the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alienee has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the alienee can rarely have the means of controlling and directing the actual application fo the money paid or advanced by him unless he enters into the managements himself.” As per the above said ratio, the law does not require an alienee to establish that every bit of the consideration was actually utilised for satisfying the family necessity. He is required to prove the legal necessity for the transaction and there is no need for him to elaborately enumerate the modes of contribution of the sale price to the specific items of the necessities of the Joint family. Even if the alienee has not proved that specific portions of the sale transaction were not diverted to different species of the necessities, when it is shown that it is utilised for the family necessity, then the court may reach a conclusion that the alienation was made for legal necessity. https://hcservices.ecourts.gov.in/hcservices/ 13.However, in this case, the second defendant is able to establish that specific portions of the sale consideration out of Ex.P1 were spent for the purposes as mentioned in the recitals and she has discharged the burden of proof as required by law. 14.In view of the observations obtained from the conspectus of the pleadings and evidence on record, this Court does not find any valid ground for disturbing the findings and conclusions of the Court below which have to be confirmed and they are accordingly confirmed. The appeal has to fail which suffers dismissal. 15.In the result, , the Appeal Suit is dismissed. No costs. Consequently, the connected Civil Miscellaneous Petition is closed. rgr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Subordinate Judge Dharmapuri 2.The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr. V. Chandrasekaran, Advocate SR No.3363 PUR(CO) SR/4.2.2010 Judgment in A.S.No.1253 of 1994 https://hcservices.ecourts.gov.in/hcservices/