Karnataka High Court

Smt Puttathayamma vs Smt Siddamma on 28 October, 2024

                            1           RFA NO. 393/2018




     IN THE HIGH COURT OF KARNATAKA, AT BENGALURU

       DATED THIS THE 28TH DAY OF OCTOBER, 2024

                        PRESENT
        THE HON'BLE MR. JUSTICE V KAMESWAR RAO
                           AND
           THE HON'BLE MR. JUSTICE C M JOSHI

     REGULAR FIRST APPEAL NO.393 OF 2018 (PAR/POS)
BETWEEN:

1.     SMT. PUTTATHAYAMMA,
       W/O THAMMAIAH,
       D/O LATE MALEGOWDA @
       MESTRI MALEGOWDA,
       AGED ABOUT 67 YEARS,
       R/O. KRADIMARAIAHNA HUNDI,
       JAYAPURA HOBLI,
       MYSURU TALUK-570 008.

2.     SMT. JAYALAKSHMI,
       W/O MALAIAHA,
       D/O LATE SMT. SHIVAMMA
       AND LATE BEEREGOWDA,
       AGED ABOUT 51 YEARS.

3.     SRI MAHADEVU,
       S/O. LATE SMT. SHIVAMMA,
       AND LATE BEEREGOWDA,
       AGED ABOUT 49 YEARS.

4.     SMT. RAJAMMA,
       W/O LATE REVANNA,
       D/O LATE SMT.SHIVAMMA,
       AND LATE BEEREGOWDA,
       AGED ABOUT 47 YEARS.
       R/O THANDAVAPUARA,
       C.CHATRA HOBLI,
       NANJANAGUD TALUK,
       MYSORE DISTRICT-573 102.
                             2         RFA NO. 393/2018




5.   SMT. RATHNAMMA,
     W/O LATE SIDDAIAH,
     D/O LATE SMT. SHIVAMMA
     AND LATE BEEREGOWDA,
     AGED ABOUT 44 YEARS,
     R/AT SALUNDI, JAYAPURA HOBLI,
     MYSORE TALUK-570 008.

6.   SRI B NANJAPPA,
     S/O LATE SMT. SHIVAMMA,
     AND LATE BEEREGOWDA,
     AGED ABOUT 42 YEARS.

7.   SRI RAMESH,
     S/O LATE SMT. SHIVAMMA,
     AND LATE BEEREGOWDA,
     AGED ABOUT 41 YEARS,

     APPELLANT NOS. 2, 3, 6 & 7 ARE
     R/O BANCHALLI HUNDI,
     CHIKKAIAHANA CHATRA HOBLI,
     NANJANGUD TALUK,
     MYSURU DISTRICT-571 302.

8.   SMT. NAGAMMA,
     W/O.LATE HEBBALEGOWDA,
     D/O. LATE MALEGOWDA @
     MESTRI MALEGOWDA,
     AGED ABOUT 61 YEARS,
     R/O. MANDAKALLI,
     JAYAPUR HOBLI,
     MYSURU TALUK-570 008.

9.   SMT. MAHADEVAMMA @
     BOLAMMA,
     W/O KEMPEGOWDA @ KEMPANNA,
     D/O LATE MALEGOWDA @
     MESTRI MALEGOWDA,
     AGED ABOUT 58 YEARS,
     R/O. THANDAVAPURA,
     CHIKKAIAHANA CHATRA HOBLI,
     NANJANAGUD TALUK,
     MYSURU-570 009.
                           3             RFA NO. 393/2018




10.   SMT. PARVATHAMMA @ MALAMMA,
      D/O LATE MALEGOWDA @
      MESTRI MALEGOWDA,
      W/O SRI PUTTASWAMY M.L,
      SINCE DEAD BY LRS.

10(a) SMT.P USHALAKSHMI,
      D/O SMT. PARVATHAMMA AND
      SRI PUTTASWAMY,
      AGED ABOUT 35 YEARS,
      NEAR HUCHHAMMA TEMPLE,
      THONACHIKOPPAL,
      MYSORE-570 009.

10(b) SMT. P VIJAYALAKSHMI,
      D/O SMT. PARVATHAMMA AND
      SRI PUTTASWAMY,
      W/O RAVI,
      AGED ABOUT 33 YEARS,
      NEAR HUCHHAMMA TEMPLE,
      THONACHIKOPPAL,
      SARASWATHIPURAM POST,
      MYSORE-570 009.

10(c) SMT. P CHANDRAKALA,
      D/O SMT. PARVATHAMMA
      AND SRI PUTTASWAMY,
      AGED ABOUT 30 YEARS,
      W/O MAHADEVA, VARAKODU POST,
      VARUNA HOBLI, BADAGANA HUNDI,
      MYSORE TALUK-570 009.

10(d) SMT. P JYOTHILASKHMI,
      D/O SMT.PARVATHAMMA AND
      SRI PUTTASWAMY,
      W/O SURESH,
      AGED ABOUT 27 YEARS,
      NO.32/1, NEAR HUCHHAMMA TEMPLE,
      THONACHIKOPPAL,
      SARASWATHIPURAM POST,
      MYSORE-570 009.

10(e) SRI P SHIVAKUMAR
      D/O SMT.PARVATHAMMA AND
                           4             RFA NO. 393/2018




       SRI PUTTASWAMY,
       AGED ABOUT 25 YEARS,
       NEAR HUCHHAMMA TEMPLE,
       THONACHIKOPPAL,
       SARASWATHIPURAM POST,
       MYSORE-570 009.

10(f) SRI PUTTASWAMY M L,
      H/O SMT.PARVATHAMMA,
      S/O LATE LAKKAIAH,
      AGED ABOUT 57 YEARS,
      NEAR HUCHHAMMA TEMPLE,
      THONACHIKOPPAL,
      SARASWATHIPURAM POST,
      MYSORE-570 009.
                                         ...APPELLANTS

(BY SRI R.K SHRIKARA, ADVOCATE FOR SRI GEORGE JOSEPH,
    ADVOCATE)

AND:

1. SMT. SIDDAMMA,
   W/O LATE MALEGOWDA @
   MESTRI MALEGOWDA,
   AGED ABOUT 87 YEARS.

2. SMT. NAGARATHNAMMA,
   W/O MARAIAH,
   D/O LATE SMT. MARAMMA AND
   LATE SUBBEGOWDA,
   AGED ABOUT 55 YEARS,
   R/O HALLIDIDDI,
   CHIKKAIAHANA CHATRA HOBLI,
   NANJANGUD TALUK,
   MYSURU DISTRICT-571 302.

3. SMT. MAHADEVI,
   W/O PUTTEGOWDA @ BEERAIAH,
   D/O SMT. DODDANNEMMA AND
   DODDAMADAIAH,
   AGED ABOUT 53 YEARS,
   R/O MANDIHUNDI,
   CHIKKAIAHANA CHATRA HOBLI,
                           5       RFA NO. 393/2018




   NANJANGUD TALUK,
   MYSURU DISTRICT-571 302.

4. SRI MALLIKARJUNA,
   S/O LATE SMT. MARAMMA AND
   LATE SUBBEGOWDA,
   AGED ABOUT 49 YEARS,
   R/O CHAMALAPURA HUNDI,
   NANJANGUD TOWN-571 301.

5. SMT. CHIKKANNEMMA,
   W/O LATE SIDDEGOWDA,
   D/O LATE MALEGOWDA @
   MESTRI MALEGOWDA,
   AGED ABOUT 64 YEARS.

6. SMT. MALAMMA,
   W/O PUTTAMADEGOWDA,
   D/O LATE MALEGOWDA @
   MESTRI MALEGOWDA,
   AGED ABOUT 63 YEARS.

   RESPONDENTS NO.-1, 5 & 6 ARE
   R/O THANDAVAPURA,
   CHIKKAIAHANA CHATRA HOBLI,
   NANJANGUD TALUK,
   MYSURU DISTRICT-573 101.

7. SRI M MAHADEVU,
   S/O LATE MALEGOWDA @
   MESTRI MALEGOWDA,
   AGED ABOUT 54 YEARS.

8. SMT. BHARATI,
   W/O M.MAHADEVU,
   AGED ABOUT 48 YEARS.

9. SRI T M SANDEEP,
   S/O M.MAHADEVU,
   AGED ABOUT 29 YEARS.

10. SRI T M SHILPA,
    D/O M.MAHADEVU,
                            6              RFA NO. 393/2018




   AGED ABOUT 27 YEARS.

   RESPONDENT NOS. 7 TO 10 ARE
   R/O SOMESHWARA BADAVANE,
   THANDAVAPURA,
   CHIKKAIAHANA CHATRA HOBLI,
   NANJANGUD TALUK-571 301.

11. SMT. R MANJULA,
    W/O LATE R.K.LAKSHMINARAYANA,
    AGED ABOUT 43 YEARS.

12. SRI L MOHAN,
    AGED ABOUT 23 YEARS,
    S/O LATE R.K.LAKSHMINARAYANA.

13. SRI L BHARATH,
    AGED ABOUT 23 YEARS,
    S/O LATE R.K.LAKSHMINARAYANA.

   RESPONDENT NOS.11 TO 13 ARE
   R/O.D.NO.37,
   NAGARESHWARA GUDI BEEDI,
   ANEKAL TOWN, ANEKAL TALUK,
   BANGALORE DISTRICT-562 106.

14. THE SPECIAL LAND ACQUISITION OFFICER,
    KARNATAKA INDUSTRIAL AREA
    DEVELOPMENT BOARD,
    KRS ROAD, METAGALLI,
    MYSURU-570 016.
                                         ...RESPONDENTS

(BY SMT. S SUSHEELA, SENIOR ADVOCATE FOR
    SRI N.M HANDRAL, ADVOCATE FOR R-11 TO 13;
    SRI P.V CHANDRASHEKAR, ADVOCATE FOR R-14;
    R-2, 4, 5, 6, 8, 9 & 10 ARE SERVED;
    R-3, R-7 HELD SUFFICIENT V/O DATED 23.07.2018;
    R-2 TO R-10 ARE LRS OF DEAD R-1)


    THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE
                               7               RFA NO. 393/2018




DATED 05.02.2018 PASSED IN OS.NO.10/2013 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., AT NANJANGUD,
PARTLY DECREEING THE SUIT FOR PARTITION AND
DECLARATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT    ON   15.07.2024  AND  COMING   ON   FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, C M JOSHI J.,
PRONOUNCED THE FOLLOWING:

CORAM:     HON'BLE MR. JUSTICE V KAMESWAR RAO
           and
           HON'BLE MR. JUSTICE C M JOSHI

                      CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

Being aggrieved by the judgment and decree passed

in OS No.10/2013 by Senior Civil Judge and JMFC,

Nanjangud, ( hereinafter referred to as 'trial Court' for

short) on 05-02-2018, partly decreeing the suit of the

plaintiffs in respect of plaint schedule B to D properties

and dismissing the claim for partition of plaint A schedule

property, the plaintiffs are in appeal before this Court.

2. The parties would be referred to as per their

ranks before the trial Court for the sake of convenience.

3. The brief facts of the case are as below:

The plaintiffs herein filed the suit before the trial

Court seeking partition of 5/10th share in the suit

schedule B to D properties and also 5/10th share in the

compensation pertaining to the plaint A schedule property

and for the declaration that the registered sale deed dated

31-03-2006 executed by defendant Nos.1, 7, 8 and 10 in

relation to plaint A schedule property in favour of

defendant No.11 is not binding on them and also for costs.

4. The following are the grounds on which the

plaintiffs laid their claim;

(a) The plaintiffs and defendant Nos. 1 to 10 are

the legal heirs of common propositus Hombegowda

and his wife Smt. Sannamma. They had a son by

name Malegowda @ Mestri Malegowda and said

Hombegowda and Sannamma also had fostered a

son by name Kenchegowda. The said Malegowda left

behind him 09 children and his wife Siddamma,

defendant No.1. The genealogical tree given by the

plaintiffs in the plaint is as below:

Hombegowda-Dead Sannamma-Dead

Malegowda @ Mestri Malegowda-Dead Kenchegowda @ Homba-Dead =Siddamma-D1 =Kempamma

Maramma-Dead Chikkannemma-D5 Malamma-D6 Mahadevamma Parvathamma =Subbegowda-Dead =Thammaiah-Dead =Putta @ Bolamma-P9 -P10 Madegowda-Dead =Kempanna

Puttathayamma-P1 Shivamma-Dead Nagamma-P8 M.Mahadevu-D7 =Thammaiah =Beeregowda-Dead =Hebbalagowda =Bharathi-D8

Nagarathnamma-D2 Mahadevi-D3 Mallikarjuna-D4

Jayalakshmi- Mahadevu- Rajamma Rathnamma Nanjappa- Ramesh-

    P2             P3         -P4        -P5           P6             P7

                                                       T.M Sandeep-D9     T.M Shilpa-D10

The plaintiffs represent five (05) of the children of

Malegowda and defendant No.1, Siddamma happens to be

the wife of Malegowda. Defendant Nos. 2 to 10 represent

the remaining five (05) children of Malegowda and

defendant No.1, Siddamma. The relationship between the

parties is not in dispute.

(b) It is pleaded by the plaintiffs that defendant

No.3, Mahadevi, had gone in adoption and therefore,

she is not entitled for any share, but she has been

arrayed as a formal party;

(c) During lifetime of propositus Hombegowda, he

effected the partition of his properties between his

sons about 50 years back and it was an oral

partition. In the said partition, plaint schedule A to D

properties were allotted to the share of Malegowda

and land bearing Survey No.77/2 measuring 3 acres

10 guntas situated at Thandavapura, was allotted to

Kenchegowda.

(d) The heirs of Malegowda i.e., the plaintiffs and

defendant Nos. 1 to 10 jointly enjoyed the properties

devolved upon them from their ancestor. After the

demise of Malegowda, the plaintiffs and defendant

Nos. 1 to 10 constructed houses on the schedule C

and D properties from the income derived from the

plaint schedule A property and they were jointly

enjoyed and possessed by them.

(e) The plaintiffs sought partition of the plaint

schedule A to D properties on 02-02-2012 and the

same was initially agreed by defendant No.1, later

they denied and then the plaintiffs came to know

that the plaint A schedule property was alienated by

defendant Nos.1, 7, 8 and 10 in favour of defendant

No.11 under a sale deed dated 31-03-2006, though

there was no legal necessity and the said sale deed

was not for benefit of joint family. Therefore, they

contended that the said sale deed is void ab initio

and is not binding on the plaintiffs.

(f) The plaint A schedule property is the ancestral

property of the plaintiffs and defendant Nos.1 to 10

and therefore, defendant Nos. 1, 7 to 10 did not

have absolute right to alienate the plaint A schedule

property when there was no legal necessity for the

joint family.

(g) The suit schedule A property was acquired by

defendant No.12-KIADB and it was on the verge of

disbursing the compensation in favour of defendant

No.11. It was contended that plaint A schedule

property is survey No.77/1, totally measuring 03

acres 10 guntas, situated at Thandavapura.

(h) The plaintiffs issued a legal notice on

26-09-2012 to defendant Nos. 1 to 12, calling upon

defendant Nos. 1 to 10 not to alienate the plaint B to

D schedule properties and defendant No.12 not to

disburse the compensation.

(i) It was alleged that defendant No.7 behind the

back of the plaintiffs borrowed a loan of a sum of

Rs.2,00,000/- from Srikanteshwara Prathamika

Sanna Kaygarika Gramina Abhivrudhi Bank

Niyamitha, Nanjangud, (hereinafter referred to as

PLD Bank for short) by executing the registered

mortgage deed and cleared the said loan in the year

2006. Therefore, they sought partition in the suit

schedule properties.

5. On issuance of summons, defendant Nos. 1 to

10 did not appear and they were placed exparte.

6. Defendant No.11, the purchaser of schedule A

property appeared and filed his written statement

contending that,

(a) the genealogical tree relating to Hombegowda is

not proper and correct;

(b) During the sale of plaint A schedule property,

defendant No.7 has produced a genealogical tree

issued by the competent authority and defendant

Nos. 1, 7 to 10 are only shown as legal

representatives of deceased Malegowda and

believing the same he has purchased the property.

the son of Hombegowda and Sannamma and that the

said Hombegowda and Sannamma had fostered a

son by name Kenchegowda. However, he denied that

the plaint schedule A to D properties had fallen to

the share of Malegowda.

(d) He further stated that during life time of

Hombegowda and Sannamma there was an oral

partition and plaint A schedule property had fallen to

the share of Kenchegowda and accordingly, A

schedule property was standing in the name of

Kenchegowda, and after his death, the same has

been transferred in favour of his wife Kempamma.

Kempamma and Kenchegowda had no issues and

therefore, Kempamma transferred the katha

(revenue entry) of the A schedule property in favour

of defendant No.7. Therefore, there was no nexus

between the defendant No.7 and land bearing Survey

No.77/1 of Thandavapura. It was contended that

Kenchegowda was in peaceful possession of A

schedule property and subsequent to his death,

Kempamma was in possession and she transferred

the same to defendant No.7 and as such, defendant

No.7 was the absolute owner in possession of the

property. Defendant No.11 purchased A schedule

property from defendant No.7 for a valuable

consideration of Rs.6,20,000/-. Defendant No.7, his

wife along with defendant No.1 executed the

registered sale deed on 31-03-2006 and the loan of

Rs.2,00,000/- with PLD Bank, with which it was

mortgaged has been cleared and sale proceeds was

utilized for family necessity. He contended that at

the time of selling the plaint A schedule property

defendant No.7 furnished the false and incorrect

genealogical tree and the same was believed by

defendant No.11.

(e) The Government of Karnataka later acquired

the plaint A schedule property and fixed

compensation of Rs.21,00,000/- per acre and when

the SLAO, KIADB, was about to disburse the

compensation, defendant No.7 has managed to file

the present suit through the plaintiffs for the alleged

non existing rights over the plaint A schedule

property. Therefore, defendant No.11 sought

dismissal of the suit.

7. Defendant No.12 did not file any written

statement.

8. Based on the pleadings, the trial Court framed

the following issues and additional issue:

1. Whether plaintiffs prove that themselves, defendants 1,2,4 to 10 are members of joint family and suit properties are ancestral, joint family properties of all?

2. Whether alienation of suit 'A' property by defendants 1,7 to 10 in favour of defendant No.11 is illegal and not binding on them?

3. Whether plaintiffs prove that defendant No.3 was given in adoption as such is not a member of their joint family?

4. Whether defendant No.11 proves that he is bonafide purchaser of suit schedule 'A' property and is absolute owner of it?

5. Whether plaintiffs are entitled for relief sought?

6. What order or decree?

ADDITIONAL ISSUE

1. Whether the legal representatives of 11th defendant proves that the 7th defendant sold the 'A' suit property in favour of 11th defendant for discharge of family loan and legal necessity?

9. Plaintiff No.3 examined himself as PW1 and

marked Exs.P1 to P17 in support of his case. Plaintiffs also

examined two witnesses as PW2 and PW3. Defendant

No.11 examined himself as DW1 and Exhibits D1 to D15

were marked in support of his case. During the pendency

of the suit, defendant No.11 died, and his legal heirs were

brought on record and legal heirs have filed additional

written statement and accordingly, the above additional

issue was framed.

10. After hearing the arguments, the trial Court

answered issue Nos.1 and 5 partly in the affirmative; issue

Nos. 2 and 3 in the negative and issue Nos. 4 and

additional issue No.1 in the affirmative and proceeded to

decree the suit partly by allowing the partition in respect

of schedule B to D properties and denying the share in A

schedule property on the ground that the alienation was

for the family necessity.

11. Being aggrieved by the said judgment, the

plaintiffs and LRs of deceased plaintiff No.10-

Parvathamma are in appeal before this Court.

12. The appeal was admitted and on issuance of

notice, respondents No.11 to 13, who are LRs of

defendant No.11 and defendant No.14 (defendant No.12)

have appeared through their counsel. The trial Court

records have been secured and the arguments by Sri

R.K.Shrikara, on behalf of Sri George Joseph, learned

counsel appearing for appellants and Smt. Susheela,

learned Senior counsel on behalf of Sri N.H. Handral,

appearing for respondent Nos.11 to 13 and Sri P.V.

Chandrashekhar, appearing for respondent No.14 were

heard.

The Submissions:

13. The learned counsel appearing for the

appellants/plaintiffs submits that the only grievance urged

by the appellants is in respect of alienation of A schedule

property by defendant No.7, in favour of defendant No.11

is for family necessity and is for adequate consideration.

It is submitted that the trial Court solely based its finding

on Ex.D15 and it proceeded to hold that the alienation was

for family necessity. In this regard, he submits that when

defendant No.11 admitted in written statement that

defendant No.7 had suppressed the fact that the plaintiffs

were also members of the joint family, he cannot take

shelter on the ground that the family necessity was only

that of the defendant No.7. He further submitted that the

finding of the trial Court that the alienation was for family

necessity does not stand to reason because, when the

existence of the family, inclusive of the plaintiffs was

suppressed by defendant No.7 while selling the suit

schedule A property, the question of presumption that the

sale was for the benefit of the family inclusive of the

plaintiffs, whose existence was not disclosed to the

purchaser, does not arise. He further submitted that the

sale deed executed in favour of defendant No.11 speaks of

defendant No.7, his wife and children and defendant No.1,

but does not include the plaintiffs.

14. The second prong of the argument is that the

value of the A schedule property was Rs.21,00,000/- per

acre, but it was sold for a meager sum of Rs.6,30,000/-

per acre. The sale deed is dated 31-03-2006 and the

preliminary notification for acquisition was issued on

03-10-2006 and the consent award shows the valuation at

Rs.21,00,000/- per acre. Therefore, on this ground also

the sale in favour of defendant No.11 is intended to defeat

the interests of the plaintiffs. In support of his contentions,

he places reliance on the judgment in the case of Prasad

and others Vs. V. Govindaswami Mudaliar and

others1.

(1982) 1 SCC 185

15. Refuting the contentions of respondents No. 11

to 13, who are the only contesting respondents in the

present appeal, he submitted that the averments in the

plaint that the houses were constructed in schedule C and

D properties out of the income derived from A schedule

property cannot be construed to be from the sale proceeds

of A schedule property, for, in para 8 of the plaint, the

plaintiffs have made their stand clear by stating that they

had suspected the attitude of defendant No.7 and upon

enquiry, they came to know the alienation made by

defendant No.7 in favour of defendant No.11. He further

submitted that when the property is acquired by KIADB, it

is not possible to seek partition of the property, but the

plaintiffs have the right to seek their proportionate share

in the compensation amount.

16. Regarding delay, he submits that only after the

enquiry, the plaintiffs came to know about the alienation

and therefore, the delay from 2006 to 2013 cannot be of

any relevance which would weigh in favour of defendant

No.11. He further submitted that though it is a settled

principle of law that the karta of the joint hindu family can

alienate the property of the family provided such

alienation is for family necessity, the recitals in the sale

deed dated 31-03-2006 would show that the necessity was

only for the family of the vendors i.e., defendants No. 1, 7

to 10, but does not include the plaintiffs. Therefore,

defendant No.7 had thought it fit to exclude the plaintiffs

from the joint family, which could not have been done.

17. Per contra, Smt. Susheela, learned Senior

Counsel for Sri N.H. Handral, for respondent Nos. 11 to 13

submitted that the trial Court in para 20 to 23 has

considered the pleadings of the plaintiffs, the pleadings of

defendant No.11, the ocular as well as documentary

evidence and came to conclusion that defendant No.7 had

alienated the property for family necessity. She defends

the findings of the trial Court contending that the

alienation by defendant Nos.1, 7, 8 and 10 in favour of

defendant No.11 was for family necessity as narrated in

the sale deed. It is submitted that the mortgage of the suit

schedule A property to the PLD bank had to be cleared and

that the defendant No.7 had performed the marriage of

one of his sister. Therefore, the need of the family of

defendant No.7 consisting of defendant No.1, and

defendant Nos. 8 to 10 cannot be separated from the joint

family which is inclusive of the plaintiffs. It is submitted

that the Karta of the joint family has every right to

alienate the property of the joint family for family

necessity. She points out that there is no allegation

against defendant No.7 that he was addicted to bad vices

and encumbering the suit schedule A property was not for

benefit of the family. The only contention of the plaintiffs

is that they were kept in the dark about the alienation.

She also points out that defendant No.1 being the mother

of the defendant No.7 and that of the plaintiffs, has also

joined for the alienation.

18. In furtherance of her submissions, she relied

on the judgment in the case of Sunder Das and others

Vs. Gajananarao and others2; Pavitri Devi and

another Vs. Darbari Singh and others3 to impress

upon the rights and duties of karta of the family and in

the case of Kehar Singh (dead) through legal

(1997) 9 SCC 701

(1993) 4 SCC 392

representatives and others Vs. Nachittar Kaur and

others4 which refer to treatises on Hindu Law by Mulla

and ultimately holds that the two debts (in that case)

proved the family necessity.

Conclusions of Trial Court:

19. The trial Court while answering issue No.2 and

additional issue No.1 has given a finding that the

alienation of suit schedule A property in favour of

defendant No.11 was for family necessity. Para 20 to 23 of

the impugned judgment reads as below:

"20. It is not the case of the plaintiffs that, the defendant No.7 who sold the suit schedule property to defendant No.11 was addicted to any bad habits and he was acting against the interest of joint family. Admittedly, the defendant No.7 is the only male member after the death of Malegowda in the joint family consisting of plaintiffs and defendant No.1 to 10. In the plaint itself the plaintiffs have stated that, after the sale of suit schedule 'A' property by the defendant No.7, a loan of Rs.2,00,000/- raised by him from Srikanteshwara Prathamika Sanna Kaigarika Grameena Abhivrudhi Bank Niyamitha, Nanjangud, is repaid. The said loan was obtained by mortgaging the suit schedule property. It is

(2018)14 SCC 445

stated that, the said loan is not utilized for the welfare of the joint family.

21. PW.1 in her cross-examination stated that, she do not know that, the loan raised by defendant No.7 from the above said bank is for the necessity of the joint family. PW.1 admitted that, after the sale of suit schedule 'A' property, defendant No.1 has performed the marriage of his daughter in Police Bhavan at Mysuru. PW.2 in her cross- examination has clearly stated that, the defendant No.7 raised a loan for marriage of his daughter and said loan is repaid out of the sale consideration. PW.3 in her cross-examination stated that, defendant No.7 was managing the family affairs of her uncle Malegowda. PW.1 to 3 have admitted that, defendant No.7 is the only male member of the family, after the demise of Malegowda.

22. Ex.D.15 is the reconveyance of the mortgage deed, on perusal of which it can be seen that, after the sale of the suit schedule 'A' property, the defendant No.7 has repaid the loan of Rs.2,00,000/- raised from the PLD bank, Nanjangud. On perusal of Ex.P.14 certified copy of the sale deed, wherein it is mentioned that, these defendant No.1, 7 to 10 have executed the sale deed in favour of defendant no.11 in respect of suit schedule 'A' property, for the repayment of the loan raised from PLD bank and for the welfare of the minor children and to purchase other immovable properties. All these oral and documentary evidence shows that, the alienation of suit schedule 'A' property by the defendant No.7 is in the capacity of karta of the joint family and for the

repayment of the loan of PLD bank and other family necessities.

23. PW.1 to 3 have clearly admitted that, after the sale of this suit schedule 'A' property, defendant No.7 has performed the marriage of his daughter. Spending money for the marriage of daughter by the father is considered as a family necessity. Admittedly, defendant No.7 has repaid the loan of PLD bank after sale of the suit schedule 'A' property. Hence, repayment of the loan raised for the family necessity by sale of the suit schedule 'A' property is also considered as family necessity. Hence, the acts done by the karta of the joint family binds the members of the joint family. Hence, the sale deed executed by defendant No.7, his mother defendant No.1 and his wife and children binds the other members also."

20. In the light of the above submissions, the only

point that arises for our consideration is whether the

property sold by defendant Nos.1, 7 8 and 10 in favour of

defendant No.11 can be construed as a sale for the benefit and

necessity of the joint family? This aspect is precisely raised

by the trial Court in issue No.2 and additional issue No.1.

The Analysis:

21. Before venturing into the appreciation of the

evidence on record, it is relevant to note that in the case

of Sunder Das and others referred supra in para 10 it is

observed as below:

"10. ........................ As a Hindu father and "karta" of the family he had every right to do so and in the process could have legally disposed of the interest of his minor sons in the said property also for the benefit of the family and necessity of the family. The plaintiffs have not been able to lead any cogent evidence to rebut the clear recitals found in the sale deed to that effect. We may usefully remind ourselves of what Mulla's Hindu Law, 16th Edn. by S.T. Desai, has to state in connection with "alienation by father" at paragraph 256 of the said volume. It reads as under:

"256. Alienation by father.--A Hindu father as such has special powers of alienating coparcenary property which no other coparcener has. In the exercise of these powers--

(1) he may make a gift of ancestral moveable property to the extent mentioned in paragraph 225, and even of ancestral immovable property to the extent mentioned in paragraph 226; (2) he may sell or mortgage ancestral property, whether moveable or immovable, including the interest of his sons, grandsons and great-grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes (paragraph 295).

Except as aforesaid, a father has no greater power over coparcenary property than any other manager (o), that is to say, he cannot alienate coparcenary property except for legal necessity or for the benefit of the family (paragraph 242). This section must be read with what is stated under paragraphs 213-215 ante.

..................."

22. Further, in the case of Pavitri Devi and

another referred supra, in para 7 it is observed as below:

"7. It is settled law that the Karta or the Manager of the Hindu Joint Family has a right to alienate undivided interest in the Hindu joint family property for valid consideration for family necessity. Karta or coparcener has right to alienate his undivided share in coparcenary property and the purchaser acquires only the equitable right to allotment of his predecessor's share at a partition. The purchaser is entitled to the allotment of the specific property sold and to be put in possession, as far as possible, subject to equities. In Baba v. Timma the Full Bench held that an undivided Hindu father has no right to bequeath coparcenary property."

23. In the case of Kehar Singh Dead through

LRs and others referred supra, in para 20 and 21, the

Apex Court has taken note of and approved the Articles

254 and 241 of Mulla's Hindu Law as below:

"20. Mulla in his classic work Hindu Law while dealing with the right of a father to alienate any ancestral property said in Article 254, which reads as under:

"Article 254

254. Alienation by father- A Hindu father as such has special powers of alienating

coparcenary property, which no other coparcener has. In the exercise of these powers he may:

(1) make a gift of ancestral movable property to the extent mentioned in Article 223, and even of acenstral immovable property to the extent mentioned in Article 224;

(2) Sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt, and was not incurred for immoral or illegal purposes (Article 294)."

21. What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under:

"Article 241

241. What is legal necessity - The following have been held to be family necessities within the meaning of Article 240:

(a) payment of government revenue and of debts which are payable out of the family property;

(b) maintenance of coparceners and of the members of their families;

(c) marriage expenses of male coparceners and of the daughters of coparceners;

(d) performance of the necessary funeral or family ceremonies;

(e) costs of necessary litigation in recovering or preserving the estate;

(f) costs of defending the head of the joint family or any other member against a serious criminal charge;

(g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt;

The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity."

24. The above Articles in the treatise on Hindu Law

were also approved by the Apex Court in the case of

Beereddy Dasaratharami Reddy Vs. V. Manjunath

and another5. In the light of the above, it is necessary to

consider the evidence available concerning the legal and

family necessity.

25. It is relevant to note that the rights of a karta

of the family to alienate the property are well settled. We

hasten to add that though the karta has no right to

bequeath or gift the coparcenery property in excess of his

share in it, for, it being not for the necessities and welfare

of the family, but for his pleasure, albeit, he has the right

to sell it for the exigencies and necessities of the family.

When it comes to the question of family necessity, the

rights of karta to alienate and to put the proceeds for the

welfare and betterment of the joint family are well

recognized under Hindu law.

26. A perusal of the evidence of PW1 would disclose

that there are no allegations against defendant No.1 or

defendant No.7 that they had alienated the suit schedule A

property for their bad vices and against the interests of

the plaintiffs. The only contention is that they were not

informed of the alienation and the alienation as depicted in

(2021) SCC Online SC 1236

the sale deed was only for the family of defendant No.7.

The testimony of PW1 does not make any allegation

against the defendant No.1 also.

27. In the cross-examination, PW1, Mahadev

admitted that after the sale of suit schedule A property,

defendant No.7 had performed the marriage of his

daughter at Mysuru. In the cross- examination, he does

not deny the raising of the loan from the PLD bank by

mortgaging the schedule A property, but he pleads

ignorance. He also pleads ignorance that suit schedule A

property was sold for clearing the loan.

28. It is also borne out of the records from Ex.D15,

which is the re-conveyance deed of mortgage that there

was a loan of Rs.2,00,000/- with PLD bank Nanjangud and

it was repaid by defendant No.7.

29. Ex.P14, which is the certified copy of the sale

deed would show the following averments (as translated

by the appellants):

"Apart from us nobody else has any right or right inherit the schedule property. We are having complete right in law to sell the schedule property. The schedule property

is being sold to you for our necessity namely to clear the loan of the PLD Bank and rearing and nurturing of our minor children and purchase of immovable property by us for its present marker value of Rs.6,30,000/-."

30. The testimony of PWs. 2 and 3 is not of any

relevance so far as the family necessity is concerned. The

testimony of DW1 would show that after due diligence, the

defendant No.11 had purchased the property. Obviously,

the family necessity is narrated in Ex.P14, and the same is

supported by Ex.D15. The admission of PW1 that the

marriage of daughter of defendant No.7 was performed

after selling the suit schedule A property would also show

that the sale proceeds were utilized for the needs of the

family of defendant No.7. It is not in dispute that

defendant No.1, the mother of the plaintiffs was also the

part of the family. When the plaintiffs contend that there

existed the joint family, the children born to defendant

No.7 cannot be relegated to a family under defendant No.7

only. The children of defendant No.7 are also the members

of the joint family and are entitled to the expenses to be

incurred for their education and marriages. Therefore, this

argument by learned counsel appearing for the plaintiffs

that the defendant Nos.1 and 7 not mentioning the

plaintiffs to be the members of the joint family in the sale

deed cannot be of much relevance. Hence, we are unable

to accept the arguments canvassed by learned counsel for

the appellants that there was no such joint family

necessity and the alienation was not for such necessity.

31. The second prong of the arguments by learned

counsel for the plaintiffs is based on an observation by the

Apex Court in the case of Prasad and others referred

supra, in para 54 and 63 observed as below:

"54. From the evidence discussed above, both oral and documentary and circumstantial, we in agreement with the trial court hold that the sale deed dated August 22, 1955 is true and it is supported by consideration but only in part and that even the recited consideration in the sale deed is thoroughly inadequate; that the sale deed was executed only nominally for a collateral purpose and with a view to stave off creditors with the express understanding that the properties sold would be reconveyed to the vendors after pressure of the creditors had subdued; that the debts under the promissory notes Ex. B-13 in favour of Veeraswami Naidu and Ex.B-14 I favour of Deivasigamani Mudaliar were fictitious.

XXX

63. There is, however, another condition which must be satisfied before the son could be held liable, i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. In Dudh Nath v. Sat Narain Ram a Full Bench of the Allahabad High Court observed:

In order to uphold an alienation of a joint Hindu family property by the father or the manager, it is not only necessary to prove that there was legal necessity, but also that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate con- sideration. A Hindu father or a manager of a joint Hindu family is expected to act prudently. However great the necessity may be, if the joint family property is sacrificed for an inadequate consideration it would be a highly imprudent transaction and it would be a case where, though for necessity, the father or the guardian has not acted for the benefit of the estate or the members of the joint Hindu family. The father or the manager is not the sole owner of the property. In fact until the partition takes place even his share does not stand demarcated. The ownership vests in all the coparceners taken together as a unit. The father and the manager, therefore, only represent the coparceners. Consequently the coparceners stand bound by the act of the father or the manager of the family only to the extent the act

is prudent or for the benefit of the coparceners or the estate.