Smt.Kyadala Laxmi vs Kamagoni Narsimhlu
2023 Latest Caselaw 2863 Tel

              THE HON'BLE Dr. JUSTICE G. RADHA RANI

                        APPEAL SUIT No.452 of 2012

O R D E R:

This Appeal Suit is filed by the appellants-plaintiffs aggrieved by

the judgment and decree dated 20.09.2011 passed by the Senior Civil Judge,

Sangareddy in O.S.No.392 of 2007 holding that the plaintiffs were not entitled

for partition of the suit schedule 'A' property.

2. The case of the plaintiffs in brief was that the plaintiffs 1 to 3 were

daughters and plaintiffs 4 and 5 were sons of defendant No.1. They constitute

a joint Hindu family and they were coparceners. The father of the defendant

No.1, late Kamagoni Mallaiah was their common ancestor. The defendant

No.1 was his only son. The grandfather of the plaintiffs, late Kamagoni

Mallaiah died about twenty years back leaving behind the defendant No.1 and

the agricultural land admeasuring Ac.1-26 gts. in Sy.No.60 and a residential

house bearing No.2-46 gts. to an extent of 120 Sq. yards situated at Pocharam

Village, Patancheru Mandal and Medak District. The above said properties

were the ancestral joint family property of the plaintiffs and defendant No.1.

After the death of the grandfather of the plaintiffs, the properties were mutated

in the name of defendant No.1 in the Revenue and the Gram Panchayath

records. The defendant No.1 performed the marriages of plaintiffs 1 to 3 and

since the date of their marriages, the plaintiffs 1 to 3 were residing along with

their husbands at their in-laws' houses. The plaintiffs 4 and 5 were residing AS_452_2012 Dr.GRR, J

with defendant No.1 in suit schedule 'B' house. The defendant No.1 even after

the marriages of plaintiffs 1 to 3 used to provide their respective share from the

suit schedule 'A' property.

2.1. The plaintiffs further submitted that the defendant No.1 was

addicted to bad vices and mismanaged the joint family properties and was not

providing any share to the plaintiffs 1 to 3 and not taking care of the minimum

needs of the plaintiffs 4 and 5. The plaintiffs demanded defendant No.1 for

partition of the suit schedule properties, but the defendant No.1 postponed the

same for about six months and finally in the month of September 2007

disclosed that he had already sold suit schedule 'A' property to third parties.

Immediately, the plaintiffs verified the revenue records and found the transfer

of patta in the name of defendant No.2 and obtained concerned records from

Tahasildar office as well as Sub-Registrar Office, Sangareddy and made the

defendant No.2 as party to the suit. The plaintiffs contended that they were

entitled to 1/6th share in the suit schedule properties and sought for a

preliminary decree to partition the suit schedule 'A' and 'B' properties.

3. The defendant No.1 remained ex-parte. The defendant No.2 filed

written statement submitting that the defendant No.1 approached the defendant

No.2 in September-October, 1999 and offered to sell suit schedule 'A' property

stating that he required money to perform the marriage of his second daughter AS_452_2012 Dr.GRR, J

i.e., plaintiff No.2. The defendant No.2 agreed to purchase the suit schedule

'A' property and after mutual discussion the sale consideration was fixed at

Rs.1,65,000/- and paid the said amount by way of cheque and got the property

registered vide sale deed document No.5242 of 1999 on the file of the District

Registrar, Medak at Sangareddy. The defendant No.1 delivered actual and

physical possession of the said property to the defendant No.2. The defendant

No.2 was in physical possession of the same since the date of purchase.

Thereafter, the defendant No.2 applied for sanction of mutation in his name

before the Mandal Revenue Officer, Patancheru and the same was sanctioned

on 07.06.2001. The Revenue Divisional Officer issued patta pass book to him.

All the above documents would clearly establish that defendant No.2 was a

bonafide purchaser. As per the pahanies, the defendant No.2 was in

continuous, actual and physical possession of the suit schedule 'A' property.

3.1. He further submitted that having received the sale consideration,

the defendant No.1 performed the marriage of plaintiff No.2 on 23.04.2000.

Thereafter from the remaining sale consideration, the defendant No.1

purchased Ac.2-14 gts. of agricultural land in Sy.No.133 of Chinthalcheru

Village, Hatnura Mandal, Medak District vide registered sale deed document

No.1670 of 2001 dated 12.06.2001 in his name from B. Kishan Rao. Similarly,

defendant No.1 also purchased Ac.2-14 gts. of land in the same survey number

in the name of his wife vide registered sale deed document No.1671 of 2001 AS_452_2012 Dr.GRR, J

dated 12.06.2001. Thereafter on 13.06.2005 both the defendant No.1 and his

wife alienated the above said properties in favour of Smt. E. Yadamma W/o.

Nagabushanam vide registered sale deed document No.2485 of 2005. All these

facts would clearly show that defendant No.1 never had any bad vices and he

invested the sale consideration received from the defendant No.1 to perform his

daughter's marriage and he also purchased the above mentioned properties.

The plaint was totally silent about these transactions which would disclose the

malafide intention of the plaintiffs. The plaintiffs failed to demand partition of

the said properties, but had conveniently claimed partition in 'A' schedule

property. The plaintiffs had not approached the Court with clean hands and

prayed to dismiss the suit.

4. Basing on the said pleadings, the trial court framed the issues as

follows:

a. Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed for? b. Whether the court fee paid is not correct? c. To what relief?

5. The plaintiff No.1 was examined as PW.1 and a third party to

the suit was examined as PW.2. Exs.A1 to A13 were marked on behalf of

the plaintiffs. The defendant No.2 examined himself as DW.1 and got AS_452_2012 Dr.GRR, J

examined one of the attestors of his sale deed as DW.2. Exs.B1 to B6 were

marked on behalf of the defendant No.2.

6. On considering the oral and documentary evidence on record,

the learned Senior Civil Judge, Sangareddy observed that the alienation made

by defendant No.1 in favour of defendant No.2 was for family necessities and

as such the said alienation was binding on the other members of the joint

family, the plaintiffs were only entitled to claim partition of their share in suit

schedule 'B' house, as such, decreed the suit partly only in respect of

schedule 'B' house, dismissing their claim in respect of the suit schedule 'A'

land.

7. Aggrieved by the said judgment and decree passed by the

learned Senior Civil Judge, Sangareddy, the plaintiffs preferred this appeal

contending that admittedly no caution notice was published by defendant

No.2 prior to purchase of the suit schedule 'A' property. As such, the trial

court erred in observing that the defendant No.2 purchased the suit schedule

'A' property after due enquiry. The trial court failed to appreciate that there

was no legal necessity nor the alienation made was for the benefit of the

family of defendant No.1. The court below erred in observing that defendant

No.1 sold the suit schedule 'A' property for performing the marriage of his

daughter, but the marriage of the plaintiff No.1 was performed 12 years prior AS_452_2012 Dr.GRR, J

to her evidence and the marriage of plaintiff No.3 was performed in or

around 2005, therefore, it could not be said that the suit schedule 'A'

property was sold by defendant No.1 for legal necessity and for performing

the marriage. The court below erred in observing that the plaintiffs were not

entitled to partition and separate possession of the suit schedule 'A' property

and prayed to allow the appeal.

8. Heard Sri B. Nalin Kumar, the learned counsel for the

appellants-plaintiffs and Sri Deepak Battacharjee, the learned counsel for the

respondents-defendants.

9. Now the points that arise for consideration in this appeal are:

1. Whether the sale made by the defendant No.1 in favour of the defendant No.2 in respect of the suit schedule 'A' property was for legal necessity and the said sale was binding on all the plaintiffs.

2. Whether the judgment of the trial court is in accordance with law or liable to be set aside?

3. To what relief?

P O I N T No.1:-

10. On behalf of all the plaintiffs, the plaintiff No.1 was examined

as PW.1. She filed her evidence affidavit on the same lines of her pleadings

in the plaint. The contention of the plaintiffs was that their father defendant

No.1 was addicted to bad vices, mismanaged the joint family properties and AS_452_2012 Dr.GRR, J

sold the suit schedule 'A' property without their consent. As coparceners

they were all entitled for a share in the said property. The sale deed executed

by defendant No.1 in favour of defendant No.2 was not binding on them as

they were not parties to the said sale deed.

11. The contention of the learned counsel for the respondent-

defendant No.2 on the other hand was that the defendant No.1 sold the suit

schedule 'A' property to defendant No.2 for family necessities to perform the

marriage of plaintiff No.2 and with the balance sale consideration, the

defendant No.1 purchased land in his name and in the name of his wife at

Chinthalcheruvu village, Hatnoora mandal, Medak district on 12.06.2001 and

also sold the said properties in favour of one E. Yadamma on 13.06.2005.

Thus, the defendant No.1 had invested the sale consideration received from

defendant No.2 only to perform the marriage of the plaintiff No.2 and to

purchase properties. The defendant No.1 never had any bad vices.

12. In the background of these contentions, when the cross-

examination of PW.1 was looked at it could be seen that PW.1 stated that her

marriage was performed 12 years back, the marriage of plaintiff No.2 was

performed 6 years back and the marriage of plaintiff No.3 was performed 4

years back. She was cross-examined on 17.08.2010. She had not stated

about the dates or years of their marriages except stating that their marriages AS_452_2012 Dr.GRR, J

were performed about 12 years, 6 years and 4 years back. As against this

evidence, defendant No.1 stated that the marriage of plaintiff No.2 was

performed on 27.04.2000 and that defendant No.1 approached him to

purchase the suit schedule 'A' property in September-October, 1999. No

contra evidence was adduced by the plaintiffs to disprove the said date of

marriage of the plaintiff No.2.

13. PW.1 also admitted in her cross-examination that her father had

no other source of income except agriculture and that her father had no other

lands and house except the suit schedule properties. It was also suggested to

PW.1 that out of Rs.1,65,000/- received as sale consideration for the suit

schedule 'A' property, the defendant No.1 spent an amount of Rs.70,000/- to

Rs.80,000/- towards marriage of plaintiff No.2 and with the balance amount

purchased land of Ac.2-14 gts. each in the name of defendant No.1 and in the

name of his wife in Sy.No.133 at Chinthalcheruvu Village, Hatnoora Mandal,

Medak District. PW.1 stated that she was not aware of it.

14. The defendant No.2 had also filed the certified copies of the

registered sale deeds document Nos.1670 of 2001 and 1671 of 2001 in

support of his contention. He also filed the certified copy of the registered

sale deed document No.2485 of 2005 in support of his contention that both

the defendant No.1 and his wife sold the above land in favour of one E.

AS_452_2012 Dr.GRR, J

Yadamma in the year 2005. The plaint is silent about these facts which

would show that the plaintiffs had not come up with clean hands to disclose

all the facts while claiming partition. They had not claimed for partition of

their share in the lands purchased under Exs.B4 and B5 which would show

their malafide intention in claiming partition of the suit schedule 'A' property

only. The defendant No.1 remaining ex-parte also would probablise that he

was in collusion with the plaintiffs.

15. PW.1 also admitted in her cross-examination that from 1999

onwards her father had not paid any amount towards her share in the suit

schedule 'A' property. It was also suggested to PW.1 that the suit schedule

land was sold before the marriage of plaintiff No.2 itself and the plaintiffs

were aware of the same but had never demanded for partition of the said land

at any time. This suggestion also appears to be probable.

16. PW.2 was a neighbor to the plaintiffs and defendant No.1.

Though he filed his evidence affidavit supporting the plaintiffs, stated in his

cross-examination that he was not aware of the family affairs of the plaintiffs

and defendant No.1. But admitted that defendant No.1 had no other land

except the suit lands. When the defendant No.1 was having no other land

except the schedule land, it appears to be probable that he sold the suit

schedule 'A' property to perform the marriage of the plaintiff No.2. As the AS_452_2012 Dr.GRR, J

defendant No.2 stated in his cross-examination that the marriage of plaintiff

No.2 was performed on 20.04.2000, which was not specifically denied by the

plaintiffs and as the marriage was said to be performed only six months after

selling of the suit schedule 'A' property by defendant No.1 to defendant No.2

and the defendant No.1 purchased some other properties in the year 2001, as

could be seen from Ex.B4 and Ex.B5 a few months thereafter, it would

probablise that defendant No.1 with the sale consideration of the suit

schedule 'A' property performed the marriage of plaintiff No.2 and

purchased the properties under Exs.B4 and B5. None of the plaintiffs

questioned defendant No.1 about selling the suit schedule 'A' property

without their consent till the filing of the suit in the year 2007. As Karta of

the joint family, the defendant No.1 was entitled to sell the joint family

property either for legal necessities or for the benefit of the estate.

17. The learned counsel for the respondent relied upon the judgment

of the Hon'ble Apex Court in Beereddy Dasaratharami Reddy Vs. V.

Manjunath and Anr. 1 wherein it was held that:

"Right of the Karta to execute agreement to sell or sale deed of a joint Hindu family property is settled and is beyond cavil vide several judgments of this Court including Sri Narayan Bal and Others v. Sridhar Sutar and Others [(1996) 8 SCC 54] wherein it has been held that a joint Hindu family is capable of acting through its Karta or adult member of the family in

2021 SCC OnLine SC 1236 AS_452_2012 Dr.GRR, J

management of the joint Hindu family property. A coparcener who has right to claim a share in the joint Hindu family estate cannot seek injunction against the Karta restraining him from dealing with or entering into a transaction from sale of the joint Hindu family property, albeit post alienation has a right to challenge the alienation if the same is not for legal necessity or for betterment of the estate. Where a Karta has alienated a joint Hindu family property for value either for legal necessity or benefit of the estate it would bind the interest of all undivided members of the family even when they are minors or widows. There are no specific grounds that establish the non-existence of legal necessity and the existence of legal necessity depends upon facts of each case. The Karta enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. The exercise of powers given the rights of the Karta on fulfilling the requirement of legal necessity or betterment of the estate is valid and binding on other coparceners."

17.1. The Hon'ble Apex Court extracted its earlier judgment in

Kehar Singh (D) through LRs. Vs. Nachittar Kaur [(2018) 14 SCC 445]

wherein the concept of legal necessity was succinctly stated by Mulla in

Article 241, as under:

"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;

AS_452_2012 Dr.GRR, J

(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.

Once the factum of existence of legal necessity stood proved, then, in our view, no coparcener (son) has a right to challenge the sale made by the karta of his family.

8. The aforesaid being the legal position, it has to be held that signatures of V. Manjunath, son of Karta - K. Veluswamy, on the agreement to sell were not required. K. Veluswamy being the Karta was entitled to execute the agreement to sell and even alienate the suit property."

18. Thus, the Hon'ble Apex Court held that no coparcener had a

right to challenge the sale made by Karta when the same was for legal

necessity and the signatures of the other members of the joint family were

not required either to execute the agreement of sale or to alienate the

schedule property. The performance of the marriages of coparceners or their

daughters is considered as a legal necessity.

19. He also relied upon the judgment of the High Court of Andhra

Pradesh in Y. Keshava Sarma (died) by LRs. And Ors. Vs. K. Venugopal AS_452_2012 Dr.GRR, J

Rao (died) by LR and Ors. 2 wherein by extracting the judgments of the

Hon'ble Apex Court in Sidheshwar Mukerjee Vs. Bhubneshwar Prasad

Narain Singh [AIR 1953 SC 487], Cheruvu Nageshwaraswami Vs. Rajah

Vadrevu Vishwasundara Rao [AIR 1953 SC 370] and in Shamsher Singh

Vs. Rajinder Prashad [(1973) 2 SCC 524] it was held that:

"As regard the legal position with regard to the powers of alienation by the manager of the joint family, but also the other coparceners. It makes no difference, if the liability of the father representing Hindu Joint Family, as Karta is to execute a decree passed by the competent Court and more particularly, when the same is confirmed in LPA Nos.55 and 56 of 1992 passed by the Division Bench of this Court.

...Therefore, the view taken by the learned trial court that the first defendant cannot bind his sons and grandsons in respect of the alienation made by him to the extent of their shares, is contrary to the settled legal position and the same is liable to be set aside in this appeal."

Thus, the alienations made by the karta of the joint family for the legal

necessities would also bind the other coparceners.

20. The defendant No.2 by examining himself as DW.1 and by

examining the attestor of sale deed as DW.2 proved that he made reasonable

enquires before purchase of the suit schedule 'A' property, that the

defendant No.1 had legal necessity to sell the suit schedule 'A' property and

2009 SCC OnLine AP 539 AS_452_2012 Dr.GRR, J

that he purchased it bonafidely. By filing Exs.B4 and B5, the defendant

No.2 was also able to prove that defendant No.1 had not mismanaged the

sale consideration received by selling the suit schedule 'A' property and

purchased some other properties and also sold the same for the benefit of the

family. Thus, plaintiffs were not entitled to challenge the sale of the suit

schedule 'A' property made by defendant No.1 in favour of defendant No.2.

As such, point No.1 is answered against the plaintiffs holding that the sale

made by the defendant No.1 in favour of defendant No.2 in respect of the

suit schedule 'A' property was for legal necessity and the said sale is binding

on all the plaintiffs.

P O I N T No.2:-

21. The learned Senior Civil Judge, Sangareddy also held that

defendant No.1 being the father of the plaintiffs was acting as Karta or

Manager of the family and as per Mithakshara Hindu Law, a Manager of

Hindu joint family had a right to make valid alienation of the joint family

property for three purposes viz., (a) in time of distress which effects the

whole family, (b) for the sake of benefit of the family and (c) for pious

purposes and held that the alienation made by Karta of a joint family would

also bind the other coparceners including minors. He also placed reliance

upon the Division Bench judgment of the High Court of Andhra Pradesh in

Nagamma and ors. Vs. G. Kamalamma and Ors. [2008 (1) ALT 281] and AS_452_2012 Dr.GRR, J

observed that the burden would lie upon the defendant No.2 to prove that

there was legal necessity and on considering the evidence came to the

conclusion, that defendant No.2 made proper and bonafide enquiries that the

sale was for legal necessity. As such, the learned Senior Civil Judge held

that the defendant No.2 discharged the burden laid upon him and

accordingly held that the plaintiffs were not entitled to seek partition in the

suit schedule 'A' property and decreed the suit only for the suit schedule 'B'

property.

22. This Court does not find any illegality or improprietory in the

judgment of the trial court to set aside the same. As the judgment was in

accordance with the settled legal principles, this Court finds no reasons to set

aside the judgment of the trial court.

P O I N T No.3:-

23. In the result, the appeal is dismissed, confirming the judgment

and decree dated 20.09.2011 passed by the Senior Civil Judge, Sangareddy

in O.S.No.392 of 2007.

Miscellaneous petitions, if any pending shall stand closed.

_____________________ Dr. G. RADHA RANI, J October 4th, 2023 ss