IN THE HIGH COURT OF JUDICATURE AT
HYDERABAD
FOR THE STATE OF TELANGANA AND STATE OF ANDHRA PRADESH
THURSDAY, THE ELEVENTH DAY OF SEPTEMBER
TWO THOUSAND AND FOURTEEN
PRESENT
THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
SA.No.441 of 2013
Between :
Boya Sanjeevappa, S/o.Late B. Kumara Swamy
and others.
...Appellants
Vs.
Mahalakshmi, W/o.Kuruba Nagendra,
Aged : 39 years, Occ : Cultivation,
R/o.Hadagali, H/o.Kaduru Village and Post,
D.Hirehal Mandal,
Anantapur District and others.
...Respondents
Counsel for Appellants : Sri Nimmagadda
Satyanarayana
Counsel for 1st respondent: Sri I. Venkata Prasad
The Court delivered the following : [judgment follows]
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
SA.No.441 of 2013
JUDGMENT :
This Second Appeal is filed challenging the judgment and decree dt.08.11.2012 in AS.No.12 of 2012 of the Judge Family Court, Additional District Judge, Anantapur, reversing the judgment and decree dt.19.10.2011 in OS.No.29 of 2007 of the Junior Civil Judge, Rayadurg.
2. The appellants are plaintiffs in the above suit.
3. They filed the above suit for partition and separate possession of their 3/4th share in the plaint schedule properties and for future mesne profits from the date of the suit till the date of delivery and for costs.
4. The plaintiffs are children of late Boya Kumara Swamy and his wife Parvathi. The said Kumara Swamy died on 30.06.2005. During his lifetime, Kumara Swamy executed Ex.A.1 registered sale deed in favour of 1st defendant in respect of item no.1 of plaint schedule property which was in turn sold to 2nd defendant on 22.03.2001. The said Kumara Swamy had also executed a registered sale deed dt.22.03.1999 in favour of 3rd defendant in respect of item no.2 of plaint schedule property.
5. The 2nd defendant filed OS.No.211 of 2005 on the file of Junior Civil Judge Court, Rayadurg, against the mother of plaintiffs, which was decreed under Ex.B.1 and an injunction was granted in favour of 2nd defendant restraining the mother of plaintiff from interfering with the possession and enjoyment of 2nd defendant.
6. The plaintiffs filed O.S.29 of 2007 for partition and separate possession of their 3/4th share in plaint schedule properties ,future mesne profits and costs.
7. They contended that the plaint schedule properties are ancestral properties of Late B. Kumara Swamy and plaintiffs have a right by birth therein; that each of them have got 1/4th share, while their father Late B. Kumara Swamy had only 1/4th share; Kumara Swamy was not looking after the welfare of the family and was addicted to vices and so they were under the care and custody of their mother even during the lifetime of Kumara Swamy; and since the sale deeds Ex.B.2 dt.11.01.1999 in respect of item no.1, and sale deed dt.22.03.1999 in respect of item no.2 executed by him in favour of defendant nos.1 and 3, were not supported by consideration, and there was no necessity to sell those properties, the said sale deeds did not bind them. They contended that since they were not executed for the benefit of the joint family, they are entitled to partition and separate possession of their share and mesne profits.
8. The 1st defendant filed a written statement admitting that the plaint schedule properties are ancestral properties of Late Kumara Swamy and that he obtained them from his father Sanjeevappa. He alleged that Kumara Swamy borrowed a sum of Rs.50,000/- from him for his vices and transferred item no.1 of plaint schedule property in his favour on 11.01.1999 as security for his debt; since he was in urgent need of the amount, Kumara Swamy borrowed a sum of Rs.50,000/- also from 2nd defendant and paid it to 1st defendant; the 1st defendant had then returned the sale deed Ex.A.1 dt.11.01.1999 to the deceased Kumara Swamy; that Kumara Swamy then executed a sale deed dt.22.03.2001 in favour of 2nd defendant; that the latter sale deed was not supported by any cash consideration and was not genuine and bona fide.
9. The 2nd defendant filed a written statement denying the plaint averments contending that she purchased item no.1 of plaint schedule property for a valid cash consideration of Rs.40,000/- under a registered sale deed dt.22.03.2001 from 1st defendant and that she is a bona fide purchaser. She alleged that the mother of plaintiffs was aware of the execution of this sale deed but encouraged plaintiffs to file the present suit and that Kumara Swamy sold item no.1 of plaint schedule property to 1st defendant to discharge the debts and for his family necessities for the purpose of looking after the welfare of plaintiffs and he had title over the plaint schedule property. She contended that she filed OS.No.211 of 2005 against the mother of plaintiffs for grant of perpetual injunction and succeeded in that suit and the judgment therein would operate as res judicata and that the Revenue Authorities issued pattadar passbook and title deed in her favour and she is in possession of item no.1 of plaint schedule.
10. The 3rd defendant also filed a written statement opposing the plaintiffs. She denied that plaintiffs are in joint possession and enjoyment of plaint schedule properties and alleged that Kumara Swamy had every right in item no.1 of plaint schedule property and sold the same to her for Rs.32,000/- under a registered sale deed 22.03.1999. She contended that the said sale deed was attested by mother of the plaintiffs and that Kumara Swamy sold item no.2 of plaint schedule to her to discharge his debts and for his necessities and so the plaintiffs are not entitled to any relief.
11. Basing on the above pleadings, the trial court framed the following issues :
"1. Whether the plaintiffs are entitled for partition and for separate possession of 3/4th share in the plaint schedule property ?
2. Whether the plaint schedule properties are the ancestral properties of the plaintiffs ?
3. Whether the suit is hit by Section 11 of CPC in view of the pendency of OS.No.211 of 2005 on the file of Junior Civil Judge, Rayadurg ?
4. Whether the plaintiffs are minors at the time of execution of sale deeds in favour of the defendants 2 and 3 by the father of the plaintiffs i.e., Kumara Swamy ?
5. To what relief ?"
12. Before the trial court, the plaintiffs examined PWs.1 and 2 and marked Exs.A.1 and A.2. The defendants examined DWs.1 to 3 and marked Exs.B.1 and B.2.
13. By judgment and decree dt.19.10.2011, the trial court decreed the suit for partition both in respect of item nos.1 and 2 of plaint schedule property but did not grant mesne profits.
14. The trial court held that plaint schedule properties were ancestral properties of plaintiffs and their father Late Kumara Swamy and since 1st defendant supported the version of plaintiffs that Ex.A.1 is a nominal document and was executed for the purpose of security only, it held that title did not pass to 1st defendant in respect of item no.1 of plaint schedule property, and therefore, item no.1 of plaint schedule property continued to be the property of late Kumara Swamy and the same was liable for partition. It held that there are no recitals in the sale deeds that the sales were made for family necessities of late Kumara Swamy and they indicate that they were sold only for his own necessity, and therefore, Ex.A.1 = B.2 sale deed did not convey any title to 1st defendant; that the judgment in OS.No.211 of 2005 would not operate as res judicata since it was only a suit for injunction wherein possession on the date of filing of the suit would be material; even item no.2 of plaint schedule property was sold by late Kumara Swamy on 22.03.1999 to 3rd defendant for security purpose and no consideration passed thereunder; since these sale deeds were executed by him without the consent of plaintiffs for his own purposes and for debts incurred by him personally, the sale deed dt.22.03.1999 is also invalid. It held that 3rd defendant did not appear in the witness box and did not testify as to her purchase of item no.2 of plaint schedule property under the sale deed dt.22.03.1999 from Late Kumara Swamy, that the amount alleged to have been borrowed by Late Kumara Swamy was not borrowed for the welfare of the joint family and therefore, the sale deeds were not binding on plaintiffs and they were entitled to a decree for partition.
15. Challenging the same, the 2nd defendant alone filed AS.No.12 of 2012 in respect of item no.1 of plaint schedule.
16. By judgment and decree dt.08.11.2012, the lower appellate court set aside the judgment of the trial court insofar as item no.1 of plaint schedule property is concerned and allowed the appeal with costs.
17. The lower appellate court referred to several cases holding that a Manager of a joint family can burden the estate or alienate the properties for legal necessities or for payment of antecedent debts and referred to certain admissions of 1st plaintiff. As PW.1, he admitted that Late Kumara Swamy was looking after the welfare of the family. It also relied upon admissions of PW.2 that during the lifetime of Kumara Swamy, his family members lived happily and Late Kumara Swamy lived with his wife and children in one house during his lifetime and was buying fertilizers for the purpose of agricultural operations. It also noted the recital in Ex.A.1 that Late Kumara Swamy was disposing of the property to discharge the debts; that the mother of plaintiffs, who attested Ex.A.1 sale deed and who attended the court on the day when PW.1 was cross- examined and who had brought PW.2 as a witness, would be having knowledge about the necessities or debts of Late Kumara Swamy, but she was not examined by plaintiffs. It therefore did not accept the contention of plaintiffs that Late Kumara Swamy was having bad vices and due to those bad vices he executed Ex.A.1 in favour of 1st defendant. It held that 1st defendant was supporting the plaintiffs as admitted by PW.2 and that it seemed as if the affidavit in lieu of chief examination filed by 1st defendant as DW.3 was got prepared in the office of plaintiffs' counsel and that the evidence of 1st defendant as DW.3 was not reliable; that in the absence of bad vices, there is no necessity to execute Ex.A.1 without consideration, and therefore, it has to be held that Ex.A.1 was executed by Late Kumara Swamy in favour of 1st defendant only after he received Rs.50,000/- from 1st defendant. It therefore concluded that Ex.A.1 was supported by consideration and it was executed by Late Kumara Swamy for discharging his loans to others and Ex.A.1 is a valid document. Consequently, it held that the subsequent sale on 22.03.2001 by 1st defendant in favour of 2nd defendant is valid and on account of ignorance, the 2nd defendant might not have taken Ex.A.1 at the time of obtaining her sale deed and Ex.A.1 might have been given by 1st defendant to plaintiffs for the purpose of the suit.
18. Challenging the same, this Second Appeal is filed by plaintiffs.
19. The subject matter of this Second Appeal is only item no.1 of plaint schedule since the 3rd defendant against whom there is a decree granted by trial court in respect of item 2 of plaint schedule, has not challenged it in the 1st appellate court and had accepted it.
20. The counsel for appellants contended that the lower appellate court erred in reversing the findings of the trial court with regard to item no.1 of plaint 'A' schedule; it erred in holding that this item was sold for legal necessity to 1st defendant by Late Kumara Swamy; that the said Late Kumara Swamy was addicted to vices and the sale under Ex.A.1 of item no.1 of plaint schedule was only for the purpose of such bad vices of Late Kumara Swamy; therefore, Ex.A.1 sale deed is not valid; consequently, the 1st defendant could not have conveyed any title in item no.1 of plaint schedule to 2nd defendant under the registered sale deed dt.22.03.2001; that the evidence of PWs.1 and 2 as well as DW.3 consistently showed that Late Kumara Swamy was addicted to bad vices and this evidence has not been properly considered by the lower appellate court; and that the appreciation of evidence by the lower appellate court is perverse.
21. I have noted the submissions of both sides.
22. Both Courts have concurrently held that the plaint schedule properties are ancestral properties of Late Kumara Swamy and plaintiffs. There is no dispute that Late Kumara Swamy was the manager of the joint family consisting of himself and plaintiff nos.1 to 3. It is settled law that such a manger of a joint family can burden the estate or alienate properties for legal necessities for payment of antecedent debts. The lower appellate court mentioned several cases of this Court, the Supreme Court and the Privy Council, apart from other High Courts which have taken the same view. I therefore hold that it is open to a Manager of joint family to alienate property to discharge debts or for legal necessities.
23. In its judgment the lower appellate court referred to admission of PW.1, the 1st plaintiff that Late Kumara Swamy was looking after their welfare and he had got a connection to bore well situated in the plaint schedule properties and was also paying electricity charges under Exs.A.2 to A.6. PW.1 had also stated that Late Kumara Swamy used to get seeds and fertilizers for the purpose of crops to be raised in item no.2 of plaint schedule property. Even PW.2 had admitted that during the lifetime of Late Kumara Swamy, his family members lived happily and that Late Kumara Swamy lived with his wife and children in one house during his lifetime. PW.2 also admitted that Late Kumara Swamy used to bring fertilizers, etc., for the purpose of agricultural operations.
24. These admissions of PWs.1 and 2 show that Late Kumara Swamy was acting in the interests of the family and his family was living happily and he was also attending to the family needs as well as agriculture and he was not addicted to bad habits. It is true that PW.1 stated that Late Kumara Swamy was addicted to bad habits. The 1st defendant as DW.3 also said so. But the wife of Late Kumara Swamy, who is the mother of plaintiffs, and who was acting as their natural guardian and who attested Ex.A.1 sale deed executed by Late Kumara Swamy in favour of 1st defendant, did not go into the witness box to speak of the alleged bad vices of her husband. Therefore, in my opinion, the lower appellate court has rightly concluded that the allegation of plaintiffs that late Kumara Swamy was addicted to bad vices, is not proved. Ex.A.1 sale deed recited that item no.1 of plaint schedule was sold by Late Kumara Swamy to 1st defendant to discharge certain debts incurred by him. Even 1st defendant, deposing as DW.3, stated that Late Kumara Swamy borrowed Rs.50,000/- from him although he pleaded that Ex.A.1 was taken only as security. It is obvious that 1st defendant is anxious to support the plaintiffs. In my opinion, the lower appellate court rightly held that he is not a reliable witness. So it has to be taken that the amount of Rs.50,000/- paid to Late Kumara Swamy by 1st defendant was the true consideration for the transfer of item no.1 of plaint schedule to 1st defendant. Therefore the subsequent transaction in favour of 2nd defendant on 22.03.2001 cannot be invalid.
25. Admittedly, the present suit for partition was filed in 2007 while Ex.A.1 transaction is of the year 1999. Thus, eight years after the execution of Ex.A.1 and six years after the execution of the sale deed dt.22.03.2001 by 1st defendant in favour of 2nd defendant, the suit was filed. During the lifetime of Late Kumara Swamy, i.e., up to 30.06.2005, none of the plaintiffs or their mother questioned Late Kumara Swamy about the alienations made by him in favour of 1st defendant. This conduct on the part of plaintiffs and their mother in keeping quiet during the lifetime of Late Kumara Swamy for the period of six years after the execution of Ex.A.1 and filing the suit after the death of Late Kumara Swamy, are clearly not bonafide. If their allegations are true, they would have immediately questioned it in a Court. So they are deemed to have acquiesced in it.
26. The lower appellate court had rightly appreciated the evidence on record and held that Late Kumara Swamy was not addicted to bad habits, that the sale deed Ex.A.1 was executed by him dt.11.01.1999 in favour of 1st defendant to discharge the debts for the loans taken by him and Ex.A.1 was thus supported by consideration and was executed for legal necessity. It therefore rightly upheld Ex.A.1 as well as the sale deed dt.22.03.2001 executed by 1st defendant in favour of 2nd defendant. In my opinion, the findings of the lower appellate court cannot be said to be perverse. I therefore do not find any merit in the Second Appeal and the same is accordingly dismissed at the stage of admission. No costs.
27. Miscellaneous applications, pending if any in this appeal, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 11-09-2014 Ndr/*