Rachakonda Suresh vs Rachakonda Viswwanadham
2022 Latest Caselaw 4758 Tel

      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/*