HON'BLE SRI JUSTICE P.NAVEEN RAO
&
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUIT NO.600 OF 2006
Date: 23.02.2023
Between:
1. Jayalaxmi W/o. Balraj
Aged 30 years, Occ: Household,
R/o.Rampally Village, Keesara Mandal,
Ranga Reddy District.
2. Kalpana W/o.T. Srinivas,
Aged 28 years, Occ. Household,
R/o.H.No.2-58, Kothapet Village,
Uppal Mandal, Ranga Reddy District.
3. Kavitha D/o. Late Narsimha,
Aged 25 years, Occ: Student,
R/o.H.No.2-58, Kothapet Village,
Uppal Mandal, Ranga Reddy District.
4. Saritha D/o. Late Narsimha,
Aged 22 years, Occ: Student,
R/o.H.No.2-58, Kothapet Village,
Uppal Mandal, Ranga Reddy District.
.....Appellants/Plaintiffs
And
s
1. Vazir Andalamma W/o. Late Narsimha,
Aged 53 years, Occ: Housewife,
R/o.H.No.2-58, Kothapet Village,
Uppal Mandal, Ranga Reddy District.
2. Bhagya Laxmi W/o. V. Srinivas,
Aged 33 year, Occ: Housewife,
R/o. Jillelguda Village, Saroornagar Mandal,
R.R.District.
3. Sri Kurelly Bal REddy S/o.K.Narayan Reddy,
Aged 45 years, Occ: Govt. Service,
R/o.H.No.48/1, B-Type Lab Quarters,
Kanchanbagh, Hyderabad.
4. Smt. Chintala Vijaya Laxmi w/o.Gurucharanam,
Aged 40 years, Occ: Housewife,
R/o.H.No.A/47, S.B.H.Colony, Saidabad,
Hyderabad.
.....Respondents/Defendants
The Court made the following:
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HON'BLE SRI JUSTICE P.NAVEEN RAO
&
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
APPEAL SUIT NO.600 OF 2006
JUDGMENT:
Heard learned counsel Sri Janardhan Reddy Kotha for appellant and the learned counsel Sri P.Srinath for respondent No.3.
2. The appellants are the plaintiffs and respondent No.3 and 4 are defendant Nos.3 and 4 in the suit. Parties are referred to as arrayed before the Trial Court.
3. The plaintiff Nos.1 to 4 and defendant No.2 are daughters and defendant No.1 is wife of Late Vazir Narsimha. They claim to be members of Hindu Undivided Joint Family. The Late Vazir Narsimha was the pattedar, owner and posessor of the suit schedule property i.e., land admeasuring Acs.2.00, in Sy.No.129/ఇ, situated in Mohan Nagar, Kothapet Village, Uppal Mandal, Ranga Reddy District. The Late Vazir Narsimha died on 29.12.1986. The plaintiffs are claiming that they and defendant Nos.1 and 2 have succeeded to the land owned by their late father. They have instituted O.S.No.47 of 2000, dated 19.06.2006 in the Court of the IV Additional District & Sessions Judge, Ranga Reddy District praying to grant preliminary decree by appointing Receiver-cum-Commissioner to divide the suit schedule -3- property into six equal shares, wherein, plaintiff Nos.1 to 4 and defendant Nos.1 and 2 be allotted 1/6th share each in the suit land. The defendant Nos.3 and 4 are outsiders. The defendant No.1 executed registered sale deed dated 18.03.1989, on her behalf and on behalf of minor children viz., plaintiff Nos.1 to 4 and defendant No.2 as a natural guardian by selling 1280 square yards of land to defendant Nos.3 and 4. This extent of land is part of suit schedule land. Therefore, defendant Nos.3 and 4 are arrayed as defendants though no claim is made against them in the suit.
4. The plaintiffs are claiming that the suit schedule land admeasuring Acs.2.00 is a joint family property and plaintiffs, defendant Nos.1 and 2 are entitled to 1/6th share each.
5. Defendant Nos.3 and 4 filed separate written statements denying the averments of the plaintiffs. They denied the status of plaintiffs and defendants 1 and 2 as members of Hindu Undivided Joint Family and their succession to suit schedule property. Defendant Nos.3 and 4 have admitted the ownership and possession of suit schedule property by Late Vazir Narsimha and that it is his self acquired property having purchased through registered sale deed No.9953 of 1980 from Abdul Raheem. It is the assertion -4- of defendant Nos.3 and 4 that neither plaintiffs nor defendants Nos.1 and 2 enjoyed the suit schedule property either prior to 1998 or after 1998 as already the suit land was alienated. 1280 sq yards of land was sold to defendants 3 and 4 in the year 1989 through registered Sale Deed bearing No.2285 of 1989 and possession was delivered to them.
6. It is the further assertion that during the said period, defendant No.1 has also executed registered sale deeds in favour of various purchasers and the total suit schedule property was alienated and not even a single plot was left for enjoyment of plaintiffs and defendant Nos.1 and 2. It was therefore asserted that the question of partition of the suit schedule property did not arise. It is contended that the alleged claim of disputes among the family members is invented to harass and humiliate defendant Nos.3 and 4, whereas they were all living together under one shelter and defendant No.1 alone is looking after the welfare of the children including performing their marriages.
7. Based on the pleadings of both the parties, the Trial Court framed the following issues:
a) Whether the plaint schedule property is available for partition?
b) Whether the first defendant representing the plaintiffs and the second defendant sold 1280 sq.yards of site out -5- of the suit property to the third and fourth defendants on 18.03.1989 and whether the said sale is binding on the plaintiffs and the second defendant?
c) Whether the plaintiff is entitled to partition and allotment of 1/6th share in the suit schedule property as prayed for?
d) To what relief?
8. On behalf of plaintiffs, plaintiff No.2 was examined as P.W.1 and marked Exs.A1 to A8. On behalf of defendants, witnesses DW.1 and DW2 were examined and four documents Exs.B1 to B4 were marked.
9. Having analysed the pleadings, submissions and evidence on record, the Trial Court held that the plaintiffs failed to prove whether the suit schedule property is available for partition as on the date of filing of the suit and held Issue No.1 against the plaintiffs. Issue No.2, is also decided against the plaintiffs and in favour of defendant Nos.3 and 4 and consequently the suit was dismissed.
10. We have heard learned counsel for appellants and learned counsel for defendant no.3.
11. Learned counsel for defendant no.3 also asserted that after filing of this appeal plaintiffs and defendants 1 and 2 sold 1920 sq yards in the year 2007.
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12. The issues for consideration are :
1. Whether trial Court erred in answering the issues against the plaintiffs?
2. What relief?
ISSUE NO.1:
13. It is pertinent to note from the cross examination of P.W.1 that she was living in House No.2-34, Kothapeta, Hyderabad and that she does not know to whom house bearing Municipal No.2-58, Kothapeta belongs to. This is clearly a false statement. From the cause title in the plaint, it is seen that all the plaintiffs and defendants 1 and 2 were living in the house bearing No.2-58, Kothapeta village. At the time of filing appeal also they were living in the same house. This fact coupled with the fact that during the pendency o the suit, plaintiffs and defendants 1 and 2 together executed sale deed to sell 1920 square yards in the suit schedule land would clearly show that there is no disharmony in the family as sought to be projected in the suit. Further, no evidence is lead to show that their mother was not looking after them but their maternal uncle was looking after them.
14. In the cross examination, she clearly admits that her mother had no other income. If that is so, how she could perform the daughters marriages without disposing the -7- family land, is not explained. It is permissible for natural guardian to sell the joint family property for legal necessities. In Beereddy Dasaratharami Reddy Vs V Manjunath1 the Hon'ble Supreme Court held:
"9. On the question of satisfaction of the condition of legal necessity, the stand of the respondents is contradictory, for they have pleaded in the written statement and even before us that the joint Hindu family was in need of funds, which shows legal necessity. In fact, as recorded above, the need for funds is duly reflected and so stated in the agreement to sell dated 8th December 2006 which states that the executants were in need of funds to meet domestic necessities and, therefore, had agreed to sell the suit property. It is also an undisputed position that the suit property was encumbered in favour of the State Bank of Mysore, Adivala Branch, and the executants had informed that the dues of the bank would be cleared to release the mortgage before the date of registration. In Kehar Singh (supra), on the question what is legal necessity, reference was made to Article 241 from Mulla's Hindu Law which states that maintenance of coparceners, family members, marriage expenses, performance of necessary funerals or family ceremonies, costs of necessary litigation for recovering or preserving estate, etc. fall and have been held to be family's necessities. Further, the instances are not the only indices for concluding whether the alienation was in need for legal necessity as enumeration on what would be legal necessity is unpredictable and would depend upon facts of each case. Thus, we are of the opinion that the agreement to sell cannot be set aside on the ground of absence of legal necessity."
15. It is the pleaded case of defendant No.3 that suit schedule land was converted into lay out and plots were sold even during the life time of late Vazir Narsimha. In the cross examination, P.W.1 does not deny this assertion of defendant no.3 but states that 'I do not know the details of the persons who constructed houses in the suit land and who are residing thereon'. In the affidavit filed in support of I.A.No.1 o 2021 to receive additional documents as evidence, the deponent 1 2021 SCC OnLine 1236 -8- admits that father formed private lay out by dividing into house plots and sold 3102 sq yards. He had also earmarked 750 sq yards towards approach roads. She also states that her mother sold 2138 sq yards to defendants 3 and 4 and another person when her daughters were minors. In addition to this after filing of this appeal on 1920 sq yards sale deed was executed by plaintiffs and defendants 1 and 2 together. Therefore, even by the time suit was filed it was no more agricultural land. Whereas, in the pleadings and deposition, plaintiffs claimed it is agricultural land and they are cultivating the same.
16. For the reasons best known to plaintiffs, they have not chosen to array other purchasers of plots. The details of sales made by mother was not disclosed. Further, during the life time of father, he sold several house plots. Thus, by the time suit was filed, Ac. 2.00 was not available for partition.
17. Further, plaintiffs admit that mother sold land to defendants 3 and 4 when they were minors against their interests, but they have not chosen to assail the legality of the sale deeds executed in favour of defendants 3 and 4. No declaration is sought. As a natural guardian defendant No.1 sold joint family property to defendants 3 and 4. In the joint family property, even the defendants have a share. Therefore, the sale deeds executed in favour of defendants 3 and 4 -9- would at the most be viodable. If they are viodable, they are valid till a declaration of invalidity is made.
18. In Murugan Vs Kesava Gounder2 Hon'ble Supreme Court held as under:
"24. We have noticed above that sub-section (3) of Section 8 refers to a disposal of immovable property by a natural guardian in contravention of sub-section (1) or sub-section (2) as voidable. When a registered sale deed is voidable, it is valid till it is avoided in accordance with law. The rights conferred by a registered sale deed are good enough against the whole world and the sale can be avoided in case the property sold is of a minor by a natural guardian at the instance of the minor or any person claiming under him. A document which is voidable has to be actually set aside before taking its legal effect. This Court in Gorakh Nath Dube v. Hari Narain Singh [Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535] , while making distinction between void and voidable document held: (SCC p. 538, para 5) "5. ... We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. ..."
28. This Court time and again held that setting aside of a sale which is voidable under Section 8(3) is necessary for avoiding a registered sale deed. We may, however, not to be understood that we are holding that in all cases where minor has to avoid disposal of immovable property, it is necessary to bring a suit. There may be creation of charge or lease of immovable property which may not be by registered document. It may depend on facts of each case as to whether it is necessary to bring a suit for avoiding disposal of the immovable property or it can be done in any other manner. We, in the present case, are concerned with disposal of immovable property by natural guardian of minor by a registered sale deed, hence, we are confining our consideration and discussion only with respect to transfer of immovable property by a registered deed by a natural guardian of minor."2
(2019) 20 SCC 633
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18.1. In Vishwambhar Vs Laxminarayana3 the Hon'ble Supreme Court held:
"9. ..............The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immoveable property of the minor. In sub- section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-8- 1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of the sale deeds was made in December 1985. Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have 3 (2001) 6 SCC 163
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interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff."
19. From the conspectus of facts and circumstances of the case, it is apparent that the plaintiffs are pursuing vexatious litigation and is not a bona fide litigation. We do not see any error in the findings recorded by the trail Court. ISSUE No.2:
20. The Appeal fails and is accordingly dismissed with costs. Miscellaneous petitions, pending if any, shall stand closed.
___________________ P.NAVEEN RAO, J ___________________________ NAGESH BHEEMAPAKA,J DATE: 23.02.2023 TVK
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HON'BLE SRI JUSTICE P.NAVEEN RAO & HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA APPEAL SUIT NO.600 OF 2006 Date: 23.02.2023 TVK