IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2009 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL Second Appeal No. 1421 of 1998 S.Badrinarayanan ..Appellant/3rd Respondent/3rd Defendant -vs- 1.M.Purushothaman ...Ist Respondent/Appellant/Plaintiff 2.V.Kulasekaran 3.G.Chendamarai ..Respondents 2 & 3/Respondents 1 & 2/Defendants 1 & 2 (Notice to 2 and 3 may be dispensed with since they remained exparte in Lower Appellate Court) Second appeal filed under Section 100 of Civil Procedure Code of Second appeal against the Judgment and Decree made in A.S.No.72 of 1995 on the file of Sub-Judge, Vellore, Vellore District dated 29.06.1998 reversing the Judgment and Decree made in O.S.No.297 of 1992 on the file of District Munsif, Gudiyattam, N.A.A.Dt. Dated 09.08.1995. For Appellant : Mr.K.A.Ravindran For Respondents : Mr.R.Margabandhu for R1 : No appearance (for R2 and R3) J U D G M E N T The third defendant is the appellant herein. https://hcservices.ecourts.gov.in/hcservices/ 2. The first respondent who is the plaintiff in the suit filed a suit for declaration of title and also for permanent injunction with respect to the suit property. 3. The plaintiff has contended that the first defendant who is the father of the second defendant constituted a joint Hindu family. The first defendant being the Manager of the joint Hindu family sold away the suit property under a registered sale deed dated 10.02.1992 for a sum of Rs.41,000/- in order to discharge the family debt contracted by the manager of the family. As the first defendant being the manager of the joint family sold away the suit property to the plaintiff to discharge the binding antecedent debts of the family, the sale deed executed by the first defendant would bind the second defendant as per law. The second defendant has created a sale deed dated 17.02.1992 in favour of the third defendant with respect to part of the suit property. Alleging that the third defendant is making an attempt to interfere with the plaintiff's possession and enjoyment of the suit property under the guise of the illegal sale deed in favour of the third defendant, the suit has been filed for the aforesaid reliefs. 4. The first defendant has contended in the written statement filed by him that he being the manager of the joint family consisting of himself and the second defendant incurred certain debts for maintaining the family and also for meeting the marriage expenditure of his daughter and the second defendant. The first defendant sold the suit property to the plaintiff in his capacity as manager and kartha of the joint family only to clear the family debt incurred by him for the joint family. The sale deed executed by the second defendant on 17.02.1992 in favour of the third defendant will not hold good. 5. The second and third defendants have set up a plea in their written statement that there was no legal necessity for the first defendant to contract debts binding upon the second defendant. There was an oral partition in the year 1987 between the first defendant and the second defendant. The suit property was divided into two halves and one of the shares fell to the share of the second defendant. The first defendant has no authority to sell the share of the second defendant. The sale deed executed by the first defendant with respect to the entire suit property is not binding on the second defendant. The second defendant who took possession of the eastern half of the suit property had been in possession and enjoyment of the same and thereafter sold the suit property to the third defendant under a registered sale deed dated 17.02.1992 for a valuable consideration of Rs.20,000/-. The sale deed executed by the first defendant in favour of the plaintiff would not bind the third defendant as there was no legal necessity to sell the entire property https://hcservices.ecourts.gov.in/hcservices/ by the first defendant to the plaintiff. Claiming that the third defendant is a bonafide purchaser for value, the second and third defendants pray for dismissal of the suit. 6. The Courts below disbelieved the contentions of the second and third defendants that there was a oral partition in the year 1987 under which the suit property was divided into two halves and the eastern portion was alloted to the share of the second defendant. The trial Court having held that there was no legal necessity for alienating the joint family by the first defendant in favour of the plaintiff, decreed the suit with respect to 29-1/2 cents but negatived the prayer for declaration of title and also for permanent injunction with respect to the other half of the suit property. 7. The plaintiff who was aggrieved by the judgment of the trial Court negativing his plea for declaration of title and also for permanent injunction with respect to the other half of the suit property preferred an appeal before the first Appellate Court. The first Appellate Court having held that the plaintiff has established that there was legal necessity for alienating the suit property by the kartha of the family namely the first defendant in the suit chose to decree the suit in its entirety. 8. At the time of admitting the second appeal, the following substantial questions of law were formulated by this Court:- a) Whether the sale deed under Ex.A1 executed by the father (D1) including the share of his son (D2) who was a major on the date of transaction is binding on the son especially when the son has not consented for the said transaction. b) Whether the lower Appellate Court is right in set aside the judgment and decree of the trial Court when there is no positive proof or materials evidence to show that D1 has sold the suit property under Ex.A1 for legal necessity. c) Whether the lower Appellate Court is right in granting the relief prayed for by the plaintiff without determining the legal right and share of D1 under Ex.A1 under which the plaintiff claims right and title to the suit property. d) Whether or not the lower Appellate Court committed a wrong in decreeing the suit in its entirety when admittedly the vendor of the appellant herein had a right of half share in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel appearing for the third defendant would submit that the sale deed Ex.A1, executed by the first defendant in favour of the plaintiff does not specifically refer to the fact that the first defendant executed the sale deed in his capacity as manager of the joint family. The first appellate Court has not seriously adverted to the admission of the plaintiff that originally the sale deed was supposed to be executed not only by the first defendant but also by the second defendant. The evidence on record would establish that as the second defendant refused to join the first defendant in executing the sale deed under Ex.A1, the first defendant had to execute Ex.A1 in favour of the plaintiff for the entire suit property. Though the second defendant would admit that there was a family debt which culminated in laying of a suit for recovery of amount by the creditor and the same was discharged under Ex.A5, the other family debts projected by the first defendant as well as by the plaintiff were not established. The entire property was alienated by the first defendant in favour of the plaintiff to discharge a paltry debt incurred by the family. It is his further submission that inasmuch as the plaintiff as well as the first defendant failed to establish that there was no sufficient pressure on the joint family to alienate the suit property to discharge the family debt, the alienation made by the first defendant in favour of the plaintiff would not bind the second defendant. Even otherwise the second defendant who has attained majority should have been consulted before he executed the sale deed Ex.A1 in favour of the plaintiff. Therefore, he would submit that the judgment of the first Appellate Court warrants interference. 10. As per the request made by the appellant/plaintiff to dispense with the notice to the first and second defendants as they remained absent before the first Appellate Court, notice to the second and third respondents/first and second defendants was dispensed with. 11. The learned counsel appearing for the plaintiff would vehemently submit that the plaintiff having produced Exs.A5, A6 and A7 has established that there was a mounting pressure on the joint family to alienate the suit property in order to discharge the family debt incurred by the kartha of the family. Referring to the evidence of second defendant who was examined as DW.2, the learned counsel appearing for the plaintiff would submit that the second defendant had not emphatically denied the family debt incurred by the first defendant but he had simply feigned ignorance of any family debt incurred by the first defendant. It is his further submission that the second defendant has admitted during the course of evidence that the first defendant had no other source of income except the https://hcservices.ecourts.gov.in/hcservices/ agricultural income which also was very meagre. His last submission is that there was no plea in the written statement filed either by the second defendant or by the third defendant that the family debt incurred by the first defendant was tainted with illegality or immorality. Therefore, he would defend the judgment of the first Appellate Court. 12. It is found that both the Courts below have concurrently returned a finding that the first defendant constituted a joint Hindu family and that there was no partition in the family between the first defendant and the second defendant. In other words the plea set up by the second defendant and the third defendant that there was a real partition in the year 1987 was negatived by both the Courts below. Therefore it is found that the suit property belonged to the joint Hindu family consisting of the first defendant and the second defendant. As rightly pointed out by the learned counsel appearing for the plaintiff, the second defendant during the course of evidence has admitted that the first defendant the kartha of the joint family was in fact managing the properties of the family. It is in evidence that the poor father had to meet the marriage expenditure of not only the second defendant but also his other daughter. Except the agricultural income which was also very paltry, no other income was there for the joint family, the second defendant has deposed before the Trial Court. 13. The second defendant would admit that there was a family debt incurred by the first defendant which culminated in a suit laid by the creditor. It is found under Ex.A5 that the family debt incurred by the first defendant was discharged pursuant to the suit for recovery of the amount laid by the creditor. Some other debts had also been incurred and the same had been discharged by the first defendant as evidenced by Exs.A6 and A7. 14. The learned counsel appearing for the third defendant would submit that the creditor under Ex.A7 was not examined to establish that there was a debt for the joint family and the same was discharged under Ex.A7. Firstly, it is found that the first defendant has stated that there was a discharge of the family debt under Exs.A5, A6 and A7. Secondly, on a perusal of Ex.A1, it is found that there is a specific reference that the suit property was sold to the plaintiff only to discharge the family debt incurred by the first defendant. Therefore, the veracity of the discharge receipt Ex.A7 cannot be doubted. As rightly pointed out by the learned counsel appearing for the plaintiff, the second defendant had simply feigned ignorance of the family debt incurred by the first defendant. He was not emphatic in his evidence that there was no family debt incurred by the first defendant. If at all there was any other income for the family or there was surplus of the income derived from agricultural https://hcservices.ecourts.gov.in/hcservices/ operation, then the second defendant might be right in contending that there was no necessity for the family to incur any debt. Admittedly, there was no other source of income for the family except from the agriculture income which was also found to be very meagre. It is quite natural for the kartha of the family to incur expenditure to maintain the family and also to protect the family properties. 15. It is true that there is no specific reference under Ex.A1 that the first defendant in his capacity as manager or kartha of the joint family alienated the suit property in favour of the plaintiff. As already pointed out by this Court, there is a specific reference in Ex.A1 that the suit property was sold only to meet the family necessity. The non-reference as to the status of the first defendant in Ex.A1 does not take away the right of the kartha to alienate the joint family property for the family necessity. 16. It is found that the second defendant has attained majority, even at the time when the sale deed Ex.A1 was executed by the first defendant in favour of the plaintiff. Even if there is an adult member in the joint family inasmuch as the kartha of the joint has supreme power to protect the family property and also to maintain the joint family, he can alienate the joint family property for the family necessity even without consulting any adult member of the joint family. 17. True it is that the plaintiff has admitted that originally the first defendant and second defendant had to join as vendors of the suit property in the sale deed proposed to be executed in favour of the plaintiff. The evidence would go to show that the second defendant refused to join the first defendant in executing the sale deed in favour of the plaintiff. Unless there is a partition in the joint family the kartha of the joint family can act on behalf of the joint family ignoring the objections if any raised by one of the joint family members. 18. The Court will have to see whether there was pressure on the joint family to alienate the suit property and also whether the kartha of the joint family had incurred any debt which was tainted with illegality or immorality. 19. The Supreme Court in Smt. Rani and another Vs. Smt. Santa Bala Debnath and others AIR 1971 SC 1028 has held as follows: Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper https://hcservices.ecourts.gov.in/hcservices/ 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. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession. 20. In the instant case, the plaintiff has established by producing Exs.A5, A6 and A7 that the alienation by the kartha of the joint family was actuated by legal necessity of discharging the family debt. Ex.A1 also refers to the necessity of alienation on account of the pressure on the joint family due to the debt incurred by the family. The above facts and circumstances would indicate that the plaintiff infact clinched the sale transaction with the defendant only after satisfying himself that the suit property was alienated by the first defendant for discharging the family debt. Due evidentiary value is given to the recital found in Ex.A1 that the property was sold to discharge the family debt. 21. It is submitted that to discharge an inconsequential debt, the entire suit property was alienated by the first defendant. Such a submission is found to be factually wrong inasmuch as Exs.A5, A6 and A7 would go to show that the family was under deep debt. The first defendant has admitted that part of the amount derived from the sale transaction was deposited in a bank and the same was meant for payment to the second defendant who is one of the members of the joint family. Further it may not also be possible to divide 59 cents comprised in one Survey Number and sell away in part. https://hcservices.ecourts.gov.in/hcservices/ 22. In this context, it is useful to refer to the judgment of the Supreme Court in Arvind & Abasaheb Ganesh Kulkarni and others Vs. Anna & Dhanpal Parisa Chougule and others AIR 1980 SC 645 wherein it is held as follows: The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the Courts below. When the mortagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale. 23. Here is a case, where major portion of sale consideration was spent to discharge the debt incurred by the joint family. Just because a small part of the consideration was un-accounted it cannot be construed that the entire transaction is vitiated or invalidated. Infact in the instant case the first defendant has accounted the entire consideration received by him from the plaintiff. 24. The learned counsel appearing for the third defendant would refer to a decision of the Supreme Court in Bala Krishnan Vs. Malaiyandi Konar 2006 (3) CTC 180 wherein it has been held that the executing Court shall bring only that portion of the property which would be sufficient to meet the discharge of the decreetal amount and the entire property shall not be brought for sale. It is found that the aforesaid decision was laid down in the background of the fact that the entire property which was brought for sale in an execution action. But in the instant case the suit property measures only 59 cents of agricultural lands. Major part of the consideration has gone to discharge the family debt. The other portion of the consideration was the properly accounted by the kartha of the joint family. Therefore, the above ratio will not apply to the facts and circumstances of the case. 25. It is found that the first Appellate Court has rightly decided that the suit property was sold only for family necessity and the same would bind the second defendant. The plaintiff who has https://hcservices.ecourts.gov.in/hcservices/ purchased the suit property from the first defendant, the kartha of the joint family under Ex.A1 is entitled to declaration of title and also for permanent injunction as sought for. The substantial questions of law formulated by this Court at the admission of the second appeal are decided against the third defendant. 26.Affirming the judgment of the first Appellate Court, the second appeal stands dismissed. There is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ps To 1.The Sub-Ordinate Judge, Vellore, Vellore District. 2.The District Munsif, Gudiyattam. Copy to The Section Officer, V.R.Section High Court, Madras 104. 1 cc To Mr.K.A.Ravindran, Advocate, SR.64421 1 cc To Mr.R.Margabandhu , Advocate, SR.64499 S.No. 1421 of 1998 ssn(co) pmk.21.12.2009. https://hcservices.ecourts.gov.in/hcservices/