Case: RENGAN AMBALAM AND ANR Vs. SHEIK DAWOOD AND ORS

2. The facts leading to the present appeal in nutshell are as under: That appellant No. 1 herein – Rengan Ambalam instituted the suit against the original defendants before the learned Sub- Court, Pudukkottai, being O.S. No. 73 of 1987 praying for the partition claiming his 1/3 rd share in the joint family properties and the possession thereon. It is required to be noted that the original defendant No. 1 was the father of the plaintiff and defendant No. 2 and therefore the plaintiff claimed that all of them have 1/3 rd share in the joint family properties, more particularly, the suit ?B? Schedule property. It was the case on behalf of the plaintiff that the suit property belonged to the grand-father of the plaintiff and defendant No. 2 and father of defendant No. 1-Kuppamuthu Ambalam. The said Kuppamathu Ambalam had five sons, including defendant No. 1. That, in a partition in the year 1966, amongst the five brothers the suit properties came to the share of defendant No. 1 Rengan Ambalam, father of the plaintiff and defendant No. 2. It was the case on behalf of the plaintiff that those properties were being enjoined in common by the plaintiff and defendant Nos. 1 and 2 and therefore all of them are entitled to 1/3 rd share each. It was also the case on behalf of the original plaintiff that his father- defendant No. 1 was acting adversely to the interest of the plaintiff and with a view to defeat the rights of the plaintiff, defendant No. 1-father mortgaged the suit ?B? schedule properties for a sum of Rs.3,000/- in favour of one Subbaiya Nadar. According to the plaintiff, there was no necessity for mortgaging the suit properties. That the plaintiff objected to that mortgage. According to the plaintiff, despite his objections, thereafter the original defendant No. 1-father sold the suit ?B? schedule properties in favour of defendant Nos. 3 and 4, as if the properties belonged to him himself and his brother?s sons. It was the case on behalf of the plaintiff that in fact the property set out in schedule ?B? is still in the possession and enjoyment of the plaintiff. According to the plaintiff, relying on his exclusive possession, the plaintiff caused a notice to his father and the mortgagee-Subbaiah Nadar that they should not trespass in the suit property. As the suit ?B? schedule property was sold by defendant No. 1-father in favour of defendant Nos. 3 and 4, the plaintiff instituted the aforesaid suit for partition, possession and mesne profits. It was also the case on behalf of the plaintiff that as he is not signatory to the sale deed in favour of defendant Nos. 3 and 4, the said sale deed is not binding onThe suit was resisted by defendant Nos. 3 and 4 by filing the written statement. It is required to be noted that during the pendency of the suit, the original defendant No.1-father died and, therefore, he could not be examined before the Trial Court and therefore the suit was resisted by defendant Nos. 3 and 4 to protect his rights under the sale deed which was executed by defendant No. 1 during his lifetime. It was the case on behalf of defendant Nos. 3 and 4 that the plaintiff was not in possession and/or enjoyment of the suit property. Defendant No. 1- father and family manager was managing the properties till his death. That defendant No. 1?s family was joint and undivided continuously. That defendant No. 1-father and Manager of the family, was managing the family with great difficulty by obtaining the loans and therefore, ?B? schedule property was mortgaged by defendant No. 1 to Subbaiah Nadar. That the suit property was mortgaged due to the legal necessity. That the sale of the ?B? schedule property to defendant Nos. 3 and 4 was necessitated on account of the insistence of Subbaiah Nadar-mortgagee. That Subbaiah Nadar allowed defendant No. 1 to harvest the crops in ?B? schedule property, for which a portion of the produce was paid towards interest. Thereafter, Subbaiah Nadar wanted return of his money from defendant No. 1, defendant No. 1 has no other alternative except selling the property to defendant Nos. 3 and 4. Therefore, to pay the mortgaged money and release the mortgage and to pay other dues/loans, defendant No. 1 sold the property to defendant Nos. 3 and 4. Therefore, it was the case on behalf of defendant Nos. 3 that the suit ?B? schedule property was sold by defendant No. 1 as a Manager of the joint family and due to the legal necessity. Therefore, it was prayed to dismiss the2 The learned Trial Court framed the followingWhether the plaintiff is entitled to get the relief of partition as asked for by him in the. Whether the plaintiff has got right to ask for reliefs relating to ‘B? schedule. Whether the sale with regard to ‘B? schedule property on 27.02.1983 would bind on the. Whether the plaintiff is in possession of the ‘B? schedule. In case if the plaintiff is entitled to get the relief of partition, whether it would be just to allot the ‘B? schedule property to the 1 st defendant and thereby allow his vendees to get. Whether the partition would be effected as asked for by the plaintiff only after settle for the maintenance of the family female members, their marriage expenses, and family. To what other reliefs is the plaintiff entitledOn behalf of the plaintiff, he himself stepped into the witness box. On behalf of defendant Nos. 3 and 4, defendant No. 3 stepped into the witness box as P.W.1. The documentary evidence were placed on record through the aforesaid witnesses which include the original mortgage deed; notice given by the plaintiff; reply to the notice of the plaintiff given by defendant No. 1 and the sale deed executed by defendant No. 1 in favour of defendant Nos. 3 and 4. That, on appreciation of evidence, the learned Trial Court decreed the suit and held that the plaintiff has 1/3 rd share in ?B? schedule property. The learned Trial Court also held that as the plaintiff is not signatory to the sale deed, the same is not binding on him. The appeal filed by defendant Nos. 3 and 4 before the learned First Appellate Court came to be dismissed. The original defendant Nos. 3 and 4-purchsers filed the second appeal before the High Court and by the impugned judgment and order, the High Court has allowed the second appeal and has quashed and set aside the judgment and decree passed by the learned Trial Court, confirmed by the learned First Appellate Court and consequently has dismissed the suit. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiff and original defendant No. 2 have preferred the present appeal.

Reasoning: 5. Heard learned Counsel appearing on behalf of the respective parties at length. We have considered in depth the impugned judgment and order passed by the High Court as well as the judgment and order passed by the Trial Court and the First Appellate Court. We have also considered the evidences on record – both oral andin the facts and circumstances of the case, we are of the firm opinion that no error has been committed by the High Court in holding that the sale deed executed by original defendant No. 1 in favour of defendant Nos. 3 and 4 was for a legal necessity and to pay the ?antecedent debt?. From the evidence on record, it appears that the sale deed executed in the year 1983 has a direct connection with the mortgage to repay the mortgage money and to repay the further loan of Rs.1,000/-. Therefore, in the facts and circumstances of the case, the decisions relied upon by the learned counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand.Now so far as the submission made on behalf of the appellants that in exercise of powers under Section 100 CPC, the High Court ought not to have interfered with the findings of fact recorded by both the Courts below and ought not have re- appreciated the entire evidence of record is concerned, from the impugned judgment and order passed by the High Court and in the facts and circumstances of the case, we are of the opinion that the High Court has not exceeded in its jurisdiction while deciding the appeal under Section 100 CPC. The High Court has framed and answered the substantial questions of law referred to in paragraph 7 of the impugned Judgment and Order. The questions of law framed by the High Court are Substantial Questions of Law, more particularly question No. 1. While answering the aforesaid question of law, when the High Court has discussed the evidence, it cannot be said that the High Court has re-appreciated the entire evidence of record. Many a times, while deciding/answering the Substantial Question of Law, the evidence on record is required to be discussed and/or considered. But, by that itself, it cannot be said that it is a re-appreciation of the entire evidence on record, as sought to be contended on behalf of the appellants.