IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 17.06.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.1111 of 1993 1. P.Suresh Kumar 2. P.Senthil Kumar 3. P.Balasubramani ... Appellants Vs. 1. D.Padmanabhan 2. G.Ragarajan 3. N.Rajendra Babu 4. N.Rajan Babu 5. N.Srinivasan (died) 6. N.Renganayagi 7. S.Vani 8. S.Vinoth 9. S.Jagan (R6 to R9 brought on record as Lrs of the deceased vide order dated 16.06.08 in CMP No.3336 to 3338/07) ... Respondents Appeal against the judgment and decree of the Sub Court, Vellore made in O.S.No.151 of 1986 dated 22.04.1993. For appellants :: Mr.A.Gowthaman for Mr.R.Rajaraman For Respondents :: Mr.Jermiah (R2 to R9) JUDGMENT This appeal is focussed as against the judgment and decree dated 22.04.1993 passed by the learned Sub Judge, Vellore, in O.S.No.151 of 1986. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. The quintessence of the case of the plaintiffs as stood exposited from the amended plaint could be portrayed thus: The suit properties described in the schedule of the plaint are the ancestral properties of the plaintiffs and the first defendant in view of the fact that those properties were purchased vide sale deeds dated 25.10.1926 (Ex.A1), 05.08.1925 (Ex.A2) and 04.11.1927 (Ex.A3) by Kannappamudaliar, the great grandfather of the plaintiffs. As such the plaintiffs and the plaintiffs father D.1 acquired equal shares in the suit properties. Whileso, D.1, colluding with defendants 2 to 5 brought about sale deeds dated 20.06.1984 (Ex.A4), 13.08.1984 (Ex.A5), 14.12.1984 (Ex.A.6) and 23.02.1985 (Ex.A.7), as per which D.2, D.3, D.4 and D.5 respectively have purchased items 2 and 3 of suit properties from D1. D.1 acted as against the welfare of the minors and such alienations are not for the benefit of the plaintiffs and such sales would not bind the plaintiffs. Accordingly they prayed for partition of the suit properties. They also claimed mesne profits from D.2 to D.5 at the rate of Rs.2,000/- presumably per annum. 3. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, D-2 to D5 filed the written statement with the averments which run thus: The plea of collusion as alleged in the plaint is totally unfounded. D.1 sold item Nos.2 and 3 of the suit properties vide sale deeds Ex.A.4 to A.7 for raising money for the benefit of the family including the minors. The sale proceeds were utilised by D.1 for the welfare of the family. D.1 effected such sales in his capacity as Kartha of the Hindu joint family and that too for the welfare of the family members and in such a case, the suit is a misconceived one and accordingly they prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs, the first plaintiff examined himself as PW1 and Exs.A1 to A.15 were marked. On the defendants' side, D.2 examined himself as D.W.2 along with the witnesses Paramasivam and Kannan and Ex.B1 was marked during cross of PW1. File No.718/84/F.3 of Vellore Municipality was also exhibited as C-1 during trial. 5. The trial Court ultimately passed the judgement and preliminary decree ordering partition in respect of item Nos.1,4,5 and 6 excluding item Nos.2 and 3. 6. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiffs filed this appeal on the following grounds among others: https://hcservices.ecourts.gov.in/hcservices/ The judgment and preliminary decree of the trial court is against law, weight of evidence and probabilities of the case. The trial court has not considered the evidence in proper perspective. The trial Court failed to see that item Nos.2 and 3 of the suit properties were the main source of income for the family and that D.1 should not have sold the properties to the detriment of the welfare of the family members. The said item Nos.2 and 3 are situated in a busy locality, so as to say a commercial area and the property value was likely to shoot up in the near future. The sale consideration contemplated in the sale deeds are meagre. D.1 had no authority or power to sell item Nos.2 and 3 in favour of the defendants'. The trial Court failed to appreciate that the alienees were duty bound to prove by adducing clinching evidence that such alienations were made by D.1 for the family necessity only. In the absence of evidence in that regard, the lower Court should have decreed the suit even in respect of item Nos.2 and 3 also ordering partition. Accordingly, the plaintiffs prayed for setting aside the Judgment and decree of the trial Court in rejecting the prayer of the plaintiffs relating to item Nos.2 and 3 of the suit properties. 7. The point for consideration are as under:- 1) Whether D.1 had any authority to sell item Nos.2 and 3 of the suit properties? 2) Whether such alienation as per Ex.A4 to A7 were effected not for the benefit of the family members 3) Whether defendants' 2 to 5 proved as per law that such alienations were for the benefit of the minor? 4) Whether there is any infirmity in the Judgment and the decree of the trial Court? 8. The points 1 and 2 are taken together for discussion as they are inter-linked and inter-woven with each other. 9. The learned counsel for the plaintiffs placing reliance on the Hindu Law would develop his argument to the effect that Kartha of the Hindu joint family is having no power to alienate the property at his Whims and Fancies; he could do so only under compelling circumstances for the benefit of the family members especially when minors are also forming part of the joint family; the onus is on the alienees viz., D2 to D5 herein to prove that D1 alienated those properties to met the family necessity; in this case there is no iota or shred of evidence to prove all those ingredients and that the Judgment and decree of the trial Court in dismissing the prayer for partition relating to item Nos.2 and 3 is required to be set aside and even in respect of those item Nos.2 and 3 partition should be issued. Whereas the learned counsel for the Defendants' 2 to 5 would torpedo the arguments of the learned counsel for the plaintiffs, by advancing his argument to the effect that the evidence on record https://hcservices.ecourts.gov.in/hcservices/ would clearly demonstrate, evince and evidence that after such sales of item Nos.2 and 3, D.1 invested the amount in fixed deposits in the names of his daughters and D.1 also spent part of the sale consideration for demolishing the tiled house in item No.6 and in raising a two storied house thereon and as such in the wake of those evidence alone, the trial Court correctly and appositely rejected the prayer of the plaintiffs for including item Nos.2 and 3 also for partition. 10. D.W.1 in his evidence without mincing words clearly and categorically highlighted that D.1 deposited part of the sale consideration to an extent of Rs.60,000/- in fixed deposits and that too in the name of his three daughters, who were unmarried at that time. He would also depose that the 6th item of the suit property, which was a tiled house at the time of emergence of Exs.A4 to A.6, was demolished and subsequently a two storied building was constructed. 11. By way of buttressing and fortifying the stand of D.W.1, D.W.3 also was examined, who with reference to Ex.B.1 clearly deposed that F.D.No.073522 for a sum of Rs.10,000/- in the name of minor Dhanalakshmi; F.D.No.073523 for a sum of Rs.10,000/- in the name of minor Bharathi and F.D.No.073524 for a sum of Rs.20,000/- in the name of D.1 Padmanabhan and daughter Santhalakshmi were all emerged. There is no contra evidence as against the clear evidence of D.W.1 as well as D.W.3, the bank official who had no axe to grind in the matter. Hence in these circumstances, explicitly it is clear that after effecting the sale of properties as per Ex.A4 to A7, D.1 did not dissipate the sale consideration or used the sale consideration for any immoral or any other illegal purposes, but he took keen interest in the welfare of his minor daughters and such a fact would speak about the genuineness of the sale transaction which emerged between D.1 on the one side and defendants' 2 to 5 on the other side. Over and above that D.W.1 would come forward with a clear and categorical statement that subsequent to such sales, D.1 used a part of the sale consideration for demolishing the old house situated in item No.6 and constructed a double storied house. If at all there was any falsehood in the statement of D.W.1, the plaintiffs could have very well summoned D.1, their father, who remained ex parte as a court witness and elicit from him the truth. It is a trite proposition of law that in a civil case preponderance of probabilities would govern the adjudication. Accordingly, if applied it is crystal clear that D.1 conveniently remained absent allowing his children to litigate questioning the validity of the sale deeds Exs.A4 to A7. By way of adding fuel to the fire and correspondingly landing support unknowingly to the case of the defendants, P.W.1 himself would make a supine submission during cross examination that even after the institution of the suit, D.1 is very much living with him. Had really D.1 acted as against the interest https://hcservices.ecourts.gov.in/hcservices/ of the minors, there would have been no cordial relationship between them. 12. The learned counsel for the plaintiffs would cite several decisions in support of the contention of the plaintiffs. It is therefore just and necessary to analyse those decisions in seriatim. 13. The decision of the Apex Court in the case of Smt.Rani and another vs. Smt.Santa Bala Debnath and Others reported in 1970(3) Supreme Court Cases 722 is relating to the point that the sale effected by the mother who had only limited estate was not tenable in view of the fact that the alienees had not established that such alienation was for family necessity. The above discussions would highlight that the sales as contemplated under Exs.A4 to A7 are for the welfare of the minors and as such I am of the considered opinion that the said decision is not germane for deciding the case on hand. 14. The decision in Kallathil sreedharan and and another vs. Komath Pandyala Prasanna and another reported in 1997 MLJ 61 which is on the point that sale of minors property would be void in the absence of permission having been obtained from Court as per the Guardian and Wards Act is not applicable to the facts and circumstances of this case. The learned counsel for the plaintiffs himself in all fairness, would submit that the case cited was relating to the exclusive property of the minors and not relating to the joint family property. 15. The decision of the Hon'ble Apex Court in Sadasivam vs. K.Doraisamy reported in AIR 1996 SUPREME COURT 1724 is on the point that in the absence of consideration having been passed under the sale deed which emerged between the father and his relative, there is no presumption that such alienations was for the benefit of the son and in those circumstances, the honourable Supreme Court held that the document was a sham one. It is obvious and axiomatic that in this case the facts are entirely different and the said cited decision also cannot be pressed into service. 16. The decision in R.Sridharan and Others vs. Ammaniammal and Others reported in 2006(2) CTC 377 is on the point that in the absence of sale consideration having been proved to have been used for the welfare of the minor in purchasing a property, the sale could not be countenanced as one emerged for the welfare of the minor. 17. The aforesaid discussion would demonstrate and spot light that the facts here are entirely different for the reason that in this case the sale considerations were utilised for the welfare of the family members only. Hence, in these circumstances, I am of the considered view that the trial Court au fait with law au curente with facts correctly adjudged in excluding item Nos.2 and 3 from the purview of partition upholding the alienations made by the Kartha https://hcservices.ecourts.gov.in/hcservices/ namely D.1 of the Hindu Joint Family. In the result, both the points are decided against the plaintiffs and in favour of the defendants'. 18. In view of the discussions supra, I am of the considered view that there is no infirmity in the Judgment and decree passed by the trial Court, consequently, the appeal is dismissed confirming the same. However, there shall be no order as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar rg To The Sub Court, Vellore +1 cc To Mr.R.Rajaraman , Advocate, SR.30087 +1 cc To Mr.Jermiah , Advocate, SR.30805 A.S.No.1111 of 1993 mdr [co] gkg/12.7 https://hcservices.ecourts.gov.in/hcservices/