*HON’BLE SRI JUSTICE R.KANTHA RAO + C.C.C.A.No.212 of 2001 % Date: 28-08-2009 Between: # Y.Keshava Sharma and others …Appellants/defendants 3 to 6 And $ K.Venugopal Rao (died per LRs.) and others …Respondents/plaintiffs ! Counsel for appellants: Sri N.Subbarao ^ Counsel for respondents: Sri T.Sharath < GIST: >HEAD NOTE: ? Cases referred: [1] 1985 APLJ 141 2 1975 ALT 78 3 AIR 1997 SC 1333 4 AIR 1953 SC 487 5 AIR 1953 SC 370 6 AIR 1973 SC 2384 HON’BLE SRI JUSTICE R. KANTHA RAO C.C.C.A.NO.212 OF 2001 Date:28.08.2009 Between: Y.Keshava Sharma and others …Appellants/defendants 3 to 6 And K.Venugopal Rao (died per LRs.) and others …Respondents/plaintiffs HON’BLE SRI JUSTICE R. KANTHA RAO C.C.C.A.NO.212 OF 2001 JUDGMENT: This appeal is directed against the judgment and decree dated 27.08.2001 passed by the I Senior Civil Judge, City Civil Court, Hyderabad in Original Suit No.55 of 1994. 2. The unsuccessful defendants 3 to 6 are the appellants herein. 3. It would be convenient to referrer the parties as ‘plaintiffs’ and ‘defendants’. 4. The plaintiffs filed the suit for partition of the schedule mentioned property which is a house situated in Plot No.20/B (now bearing No.7-1-397/137), MIGH Quarters, S.R. Nagar, Hyderabad into 1/3rd each share and to put the plaintiffs in possession of their respective shares and also for the consequential relief to declare the judgment and decree dated 14.12.1987 passed in O.S.No.813 of 1981 on the file of the III Additional Judge, City Civil Court, Secunderabad as unenforceable, inoperative, void and illegal. 5. The learned trial Court granted both the reliefs and decreed the suit filed by the plaintiffs with costs. Feeling aggrieved, defendants 3 to 6 preferred this appeal. 6. The back ground facts are that the schedule mentioned house i.e. Plot No.20/B (now bearing No.7-1-397/137), MIGH Quarters, S.R.Nagar, Hyderabad was allotted to defendant No.1 in the year 1971 under hire purchase agreement from the A.P. Housing Board and the same was also registered vide sale deed dated 21.04.1980. The first defendant in turn agreed to sell the schedule mentioned house to the 3rd defendant for a consideration of Rs.51,081/- and executed an agreement to sell dated 21.04.1980 in his favour. Subsequently, alleging that the first defendant failed to perform his part of contract under the said agreement to sell, the 3rd defendant filed suit in O.S.No.813 of 1981 on the file of the III Additional Judge, City Civil Court, Secunderabad and the said suit was decreed in favour of 3rd defendant granting the relief of specific performance in his favour and directing the 1st defendant to execute the registered sale deed in terms of the said agreement to sell. The defendant No.1 carried the matter in appeal to the High Court in C.C.C.A.No.31 of 1988, was unsuccessful since the decree and judgment of the trial Court were confirmed by the High Court and the said findings also became final in L.P.A.Nos. 55 and 56 of 1992 by the judgment of the Division Bench of this Court. 7. Since the decree passed in O.S.No.813 of 1981 became final, the question whether the agreement to sell dated 21.04.1980 executed by the first defendant is valid or supported by consideration etc. questions need not be gone into in the present appeal. However, the learned trial Court in O.S.No.55 of 1994 passed the impugned judgment and decree in favour of the plaintiffs solely on the ground that the deceased – 1st defendant, who is the father of defendant No.2, the paternal grand father of the plaintiffs who is the karta of the joint family has no power to sell away the shares of the other coparceners and his power of alienation is only restricted to his share. Plaintiffs 1 and 2 are brothers and defendant No.2 is their father. Originally plaintiff No.1 alone filed the suit against defendants 1 to 4 showing the plaintiff No.2 as defendant No.3. But subsequently he was transposed as plaintiff No.2 as per orders in I.A.No.865 of 1996. During the pendency of the suit, defendant No.1 died, his wife was brought on record as defendant No.7 as his legal representative. The learned trial Court recorded a finding that the defendant No.1 purchased the property with the income of joint family property which is agricultural land and that he has no authority under law to bind the plaintiffs and he can only execute the sale deed to the extent of his share. The said finding is assailed by the defendants 3 to 6/appellants in this appeal. 8. The only point that arises for consideration in the present appeal is whether the deceased – 1st defendant purchased the schedule mentioned property from the income of the property held by the Hindu joint family and if so, whether the decree passed in O.S.No.813 of 1981 by the III Additional Judge, City Civil Court, Secunderabad directing him to execute the registered sale deed in terms of agreement to sell dated 21.04.1980 is binding on the plaintiffs? 9. On the aspect that the deceased – 1st defendant purchased the schedule mentioned property with the funds of the Hindu Joint Family, apart from the oral evidence of PW.1, who is 2nd plaintiff in the suit, the learned trial Court placed reliance on Ex.A.3 agriculturist certificate, dated 19.02.1970 issued by the Tahsildar, Miryalaguda. Ex.A.4 the certified copy of the deposition of PW.1 in O.S.No.186 of 1983 on the file of the III Additional Judge, City Civil Court, Secunderabad. PW1 in the said suit is no other than the deceased – 1st defendant. The trial Court also relied on Ex.A.12 the proceedings dated 26.10.1976 issued by the Land Reforms Tribunal, Nalgonda. In fact, the first defendant in the present suit, filed O.S.No.186 of 1983 seeking delivery of vacant possession of the schedule mentioned property and for arrears of rent and also damages and the said suit was dismissed. 10. Ex.A.3 – agriculturist certificate is not a copy of any entry in the revenue records and as such in the strict sense it has no evidentiary value and the learned trial Court failed to notice the said fact. Similarly Ex.A.12, dated 26.10.1976, proceedings of the Land Reforms Tribunal indicate that the Hindu joint family of the first defendant, his sons and grandsons possessed landed property. It was argued that there was no evidence showing that the first defendant as a Manager of the Hindu Joint Family was deriving any income from the landed property on the date of executing the agreement of sale in favour of the third defendant. This apart, the plaintiffs also did not prove Exs.A.3 and A.12 by examining any official witness concerning the said document nor was there any independent oral evidence showing that at relevant point of time, the Hindu Joint Family was in fact deriving income from it’s landed property. The authenticity of Ex.A.3 and Ex.A.12 being very much in doubt and also in view of the fact that they have not been proved by the plaintiffs as required under law, the trial Court ought not to have taken the said documents into consideration for basing its decision. Further, Ex.A.4 certified copy of deposition is only that of the first defendant, who resisted the suit in O.S.No.813 of 1983 filed by the defendant No.3 till the judgment in L.P.A.Nos. 55 and 56 of 1992 passed by the Division Bench of this Court against him and also he lost the suit O.S.No.186 of 1983 filed by him seeking delivery of vacant possession and arrears of rent. The said deposition cannot be made use of by the plaintiffs to support their contention since the testimony of PW.1 in the said suit is only self-serving. Therefore, the finding of the learned trial Court that the first defendant purchased the schedule mentioned house with the earnings from the Hindu Joint Family property couldn’t be sustained since it is not based on any reliable evidence. Hence, the said finding is liable to be set-aside in this appeal and accordingly it is set aside. 11. Now it has to be seen whether the finding of the learned trial Court on the legal issue that the first defendant in the capacity of Manager of the Hindu Joint Family can only sell his share and cannot bind the other coparceners has any legal force. In support of his contention, the learned counsel appearing for the plaintiffs/respondents relied on the following judgments: 1) KANDAKURTHI LINGAIAH v PAMALAPATI VISWESHWARA RAO @ SUBBAIAH AND OTHERS[1] wherein, the single Judge of this Court held as follows: “If the decree is obtained against the father in his capacity as manager representing the family it operates as res judicata and on failure of the alienee to prove that the property is self acquired, the decree is valid only as against the manager.” 2 ) K.KAMAYYA v A.APPALANAIDU AND OTHERS[2] wherein another Single Judge of this Court held as follows: “In the case of agreement of sale, where specific performance is sought for, and the father files a written statement and contested the claim of the plaintiff on various grounds including the ground that it is not for the benefit of the minor sons and that the alienation was not for the legal necessity, it would be opposed to the principles of Hindu Law for the court to enforce specific performance by such an unwilling vendor in respect of such properties, merely to protect the rights of the alienee. It would be rather harsh to decree specific performance against the minor sons on the basis of the special privilege of the father to sell the properties for discharge of his antecedent debts, recognized under the Hindu Law. If there is no alienation by the father himself, equally there can be no alienation at the instance of or by the minor sons.” 3) SHER SINGH AND OTHERS v GAMDOOR SINGH[3] wherein the Apex Court held as follows: “.. Once the existence of joint family was not in dispute, necessarily the property held by the family assumed the character of a coparcenery property and every member of the family would be entitled by birth to a share in the coparcenery property unless any one of the coparceners pleads, by separate pleadings, and proves that some of the properties or all the properties are his self acquired properties and could not be blended in the coparcenery property. …. The finding recorded by all the Courts is that the property belonged to Joint Hindu Family. Therefore, the finding that the respondent is entitled to 1/6th share by virtue of his birth is well justified and the finding that the previous decree does not bind him as being tainted with fraud, is not vitiated by any error of law. It is also an admitted fact that he was not a party to the earlier suit and the decree was granted without his consent. Under those circumstances the finding that it is a collusive decree is a finding of fact based on appreciation of evidence. Under those circumstances, we do not find any substantial question of law warranting interference.” 12. The first and second decisions cited above relied upon by the learned counsel appearing for the plaintiffs did not lay down the correct law since the findings therein are contrary to the legal position enunciated by the Apex Court in various decisions on the subject. Whereas the decision third cited relied on by the respondents/plaintiffs is distinguishable on facts since basing on evidence forthcoming in the present case, no finding can be given that O.S.No.813 of 1981 is a collusive suit between the first defendant and the third defendant. Moreover, the respondents/plaintiffs were precluded from raising the contention that the said suit is collusive, because the said contention was raised in the said suit O.S.No.813 of 1981, was rejected in CCCA No.31 of 1988, and ultimately it was confirmed in L.P.A.No.55 and 56 of 1992 by the Division Bench of this Court. It will be essential at this stage to look in to the following decisions of the Apex Court, which lay down the principles as to the nature, and extent of powers of a Manager of Hindu Joint Family relating to alienation of joint family property. 13. In SIDHESHWAR MUKERJEE v BHUBNESHWAR PRASAD NARAIN SINGH[4] wherein the Apex Court held as follows: “The fact that father was not kartha of the joint family or that the family did consist of coparceners besides the father and sons does not affect the liability of the sons in any way. So far as the legal liability of the sons is concerned, such debts incurred by the father have not been shown to be immoral or irreligious, it must be held that under the rule of Hindu law there is legal liability on the part of the sons to discharge these debts and the creditor can enforce this liability by attachment and sale of the sons’ interest in the same manner as if it was a personal debt due by them.” 14. Similarly in CHERUVU NAGESHWARASWAMI v RAJAH VADREVU VISHWASUNDARA RAO[5], the same view was taken by the Apex Court. I n SHAMSHER SINGH V RAJINDER PRASHAD[6] the Apex Court laid down the law on the subject in unequivocal terms as follows: “It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may be incurring a debt so long as it is not for an immoral purpose lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt.” 15. As regards the legal position with regard to the powers of alienation by the manager of the Hindu Joint Family, there is no manner of doubt whatsoever, that so long as the debt contracted is not for immoral or illegal purpose, it not only binds the manager of the joint family, but also the other coparceners. It makes no difference, if the liability of the father representing Hindu Joint Family, as kartha is to execute a decree passed by the competent Court and more particularly, when the same is confirmed in L.P.A.Nos.55 and 56 of 1992 passed by the Division Bench of this Court. 16. To sum up, in O.S.No.813 of 1981 filed by the third defendant against the first defendant, the first defendant admitted execution of the agreement to sell on 21.04.1980 and the terms therein. But, only contended that, since he purchased the schedule mentioned property with the amounts derived from the properties of the joint family, he cannot bind the other coparceners. He fought the litigation till the judgment and decree passed against him which became final in L.P.A.Nos.55 and 56 of 1992 of the High Court. This apart, he also filed O.S.No.186 of 1983 seeking delivery of vacant possession of the schedule mentioned property and for arrears of rent and had also lost the said suit. The entire litigation fought by the deceased – first defendant had been well within the knowledge of the other coparceners. Therefore, by no stretch of imagination can it be said that there was collusion between the deceased-first defendant and the third defendant in filling O.S.No.813 of 1981 on the file of the III Additional Judge, City Civil Court, Secunderabad. On the other hand, from the facts and circumstances under which the litigation, in fact, had originated, it can be held without any hesitation that there is collusion between the deceased-first defendant and the other coparceners of the joint family for which the deceased-first defendant was admittedly the kartha. Another significant feature of the instant case is that the question that the deceased-first defendant has no authority to bind the remaining members of the joint family, was raised by him in O.S.No.813 of 1981 as well as in O.S.No.186 of 1983. The said question was decided against him and it also became final. The Original Suit No.55 of 1994 was instituted against the first defendant also. It must be well within the knowledge of the plaintiffs as well as the first defendant about the finality of the decrees and judgments in O.S.No.813 of 1981 and 186 of 1983. Therefore, the plaintiffs are estopped from re-agitating that the first defendant had no authority under law to bind them in respect of the alienation of the schedule mentioned property made by him in favour of the third defendant. Virtually, it was the deceased-first defendant who fought the litigation on behalf of the plaintiffs also in the above mentioned two earlier suits. The Original Suit No.55 of 1994, as has already been pointed out is a collusive suit between the plaintiffs and the first defendant since there was no adverse interest inter se the first defendant and the plaintiffs right from the date of institution of the Original Suit No.813 of 1981 by the third defendant by filing a collusive suit the first defendant and the plaintiffs cannot defeat the rights of the third defendant who is a bona fide purchaser for value. Therefore, the view taken by the learned trial Court that the first defendant cannot bind his sons and grandsons in respect of the alienation made by him to the extent of their shares, is contrary to the settled legal position and the same is liable to be set aside in this appeal. 17. For the foregoing reasons, the decree and judgment passed by the I Senior Civil Judge, City Civil Court, Hyderabad in O.S.No.55 of 1994 is set aside. It is needless to mention that the respondents/plaintiffs are obliged under law to execute the sale deed in favour of the defendants 3 to 6/ appellants in terms of the decree passed in O.S.No.813 of 1981 by the learned III Additional Judge, City Civil Court, Secunderabad. 18. The appeal is accordingly allowed with costs. ________________ R.KANTHA RAO, J Date: 28.08.2009 Note : L.R copy to be marked. B/o kvrm [1] 1985 APLJ 141 [2] 1975 ALT 78 [3] AIR 1997 SC 1333 [4] AIR 1953 SC 487 [5] AIR 1953 SC 370 [6] AIR 1973 SC 2384