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SHEIK DAWOOD versus RENGAN AMABALAM

High Court of Madras

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Sheik Dawood v. Rengan Amabalam - Second Appeal No.1900 of 1991 [2007] RD-TN 2144 (2 July 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02/07/2007

CORAM

THE HONOURABLE Mr.JUSTICE A.SELVAM

Second Appeal No.1900 of 1991

1. Sheik Dawood

2. Sahul Hameed ... Appellants

Vs

1. Rengan Amabalam

2. Sethu Manickam

3. Chinna Pillai

4. Chinthamani

5. Vallikannu

6. Kamalam

7. Vasanthi (Minor)

8. Tamil Sevi (Minor) ... Respondents Second Appeal against the judgment and decree passed by the District Judge, Pudukottai dated 29/10/1991 in Appeal Suit No.29 of 1989 confirming the judgment and decree passed by the Subordinate Judge, Pudukottai dated 17/3/1989 in Original Suit No.73 of 1987.

For appellants ... N.R.Chandran, Sr.Counsel

for Mr.S.K.Selvaraj. For respondents ... Mr.K.Baalasundaram for R.1.

:JUDGMENT



Challenge in this appeal is the judgments and decrees passed in Original Suit No.73 of 1987 and in Appeal Suit No.29 of 1989 by the Sub-Court as well the District Court, Pudukottai, respectively.

2. The first respondent herein as plaintiff has instituted the Original Suit No.73 of 1987 on the file of the Sub-Court, Pudukottai for the reliefs of partition and separate possession, wherein the present appellants have been shown as the defendants 3 and 4.

3. The epitome of the averments made in the amended plaint may be stated like thus:-

The first defendant is the father of the plaintiff and second defendant. The suit properties and some other properties are originally belonged to Kuppamuthu Ambalam, grand father of the plaintiff and second defendant. The first defendant and his brothers namely Karuppaiya, Raman Adaikan, Arumugam and Subbaiya have partitioned their joint family properties in the year 1966 and in the said partition, the suit properties have been allotted to the share of the first defendant. The plaintiff and second defendant are having right in the suit properties by birth. The plaintiff and defendants 1 and 2 are each entitled to get 1/3 share in the suit properties. The first defendant has been acting adversely to the interest of the plaintiff due to some despair. With the intention to defeat and delay the plaintiff, the first defendant has mortgaged the suit B schedule property for a sum of Rs.3,000/- in favour of one Subbaiya Nadar. The plaintiff has raised his objection by saying that the alleged mortgage has been made without necessity. The first defendant has subsequently sold the suit B schedule property to the defendants 3 and 4. The suit B schedule property is in possession and enjoyment of the plaintiff. The plaintiff has given a notice to the first defendant and Subbaiya Nadar. The first defendant has no right either to mortgage or to sell 1/3 share of the plaintiff to the defendants 3 and 4. The 1/3 share of the plaintiff will not pass to the defendants 3 and 4 since the plaintiff is not a party to sale. At the most, the first defendant can sell his share in the suit B schedule. The plaintiff has made repeated demands to the first defendant so as to effect partition. But the first defendant has refused to concede the demand of the plaintiff. The first defendant has passed away on 16/7/1984 and his legal heirs have been impleaded. Under the said circumstances, the plaintiff has filed the present suit for the reliefs indicated supra.

4. The nubble of the averments made in the written statement filed by the defendants 3 and 4 can be stated like thus:- The suit B schedule property is a joint family property. The first defendant as father-Manager is having absolute right to sell the same for the necessity of the family. The first defendant has faced some problems to maintain joint family and due to that he has borrowed amounts for family expenses. It is false to say that the mortgage created by the first defendant is without legal necessity. In order to discharge mortgage debt, the suit B schedule property has been sold to the defendants 3 and 4 by the first defendant. The plaintiff knows very well about the bonafide transaction made by the first defendant. The suit B schedule property is in possession and enjoyment of the defendants 3 and 4. The plaintiff is not entitled to get the reliefs sought for in the plaint without seeking to set aside the sale deed which stands in the names of the defendants 3 and 4. There is no merit in the suit and the same deserves dismissal.

5. The material averments made in the additional written statement filed by the defendants 3 and 4 can be stated like thus:- The suit B schedule property cannot be treated as joint family property. The first defendant has candidly admitted the validity and binding nature of the mortgage as well as sale. There is no merit in the suit and the same deserves dismissal.

6. On the basis of the divergent pleadings raised by either party, the trial Court has framed necessary issues and after perpending both the oral and documentary evidence has decreed the suit as prayed for in respect of the suit properties and further held that the defendants 3 and 4 are entitled to get 2/3 share in the suit B schedule property. Aggrieved by the judgment and decree passed by the trial Court, the defendants 3 and 4 as appellants have preferred Appeal Suit No.25 of 1989 on the file of the District Court, Pudukottai. The First Appellate Court after analysing the rival submissions made by either side has dismissed the appeal by way of holding that the sale deed which stands in the names of the defendants 3 and 4 is invalid. Against the judgment and decree passed by the Courts below, the present appeal has been preferred at the instance of the defendants 3 and 4.

7. At the time of admission of the present Second Appeal, the following substantial questions of law have been formulated for consideration. "1. Whether the trial Court is right in not applying the well recognised principle of Hindu Law that an alienation by father - Manager of undivided Hindu family to discharge the antecedent debts would be binding on his sons without their consent or acquiescence?

2. Whether the Courts below are right in holding that the alienation of the father would not bind the plaintiff or the second defendant in view of the ruling in 1974 II M.L.J - 345?

3. Whether the lower Appellate Court is right in allowing the cross objection on the ground that the alienation by father was suspicious when there was no pleading or evidence to support such case?"

8. Before pondering the rival arguments advanced on either side, it has become shunless to narrate the following admitted facts. It is an admitted fact that the suit A and B schedule properties and some other properties are originally belonged to a Hindu joint family consisted of one Kuppamuthu Ambalam and his five sons namely Karuppaiya, Raman Adaikan, Arumugam and Subbaiya. After the demise of the said Kuppamuthu Ambalam, his sons have orally divided their joint family properties in the year 1966 and the suit A and B schedule properties have been allotted to the share of the first defendant. Both the plaintiff and second defendant are the sons of the first defendant. The first defendant has acted as joint family Manager. In the capacity of joint family Manager, the first defendant has mortgaged the suit B schedule property in favour of one Subbaiya Nadar on 26/2/1981 and the said mortgage deed has been marked as Ex.B.2. In order to discharge the mortgage debt mentioned in Ex.B.2 and also for meeting other expenses, the first defendant has sold the suit B schedule property in favour of the defendants 3 and 4 on 27/2/1983 and the sale deed which stands in the names of the defendants 3 and 4 has been marked as Ex.B.1. The suit B schedule property has been purchased by the said Kuppamuthu Ambalam under Ex.A.1 and the suit A schedule properties have been purchased by him under Exs.A.2 and A.3. As adverted to earlier, the first defendant, father of the plaintiff and second defendant has mortgaged the suit B schedule property under Ex.B.2 and subsequently, he sold the same under Ex.B.1 to the defendants 3 and 4.

9. At this juncture, the Court has to perorate the correct legal position that has now winched to the fore in the present appeal. It is an ever lasting principle of law that the father in a joint Hindu family may sell or mortgage the joint family property including his sons interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons, provided the debt is antecedent to the alienation and the same had not been incurred for immoral purpose. The validity of an alienation may to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. It is also a settled principle of law that the debts incurred by the brother - Manager will stand on a different footing from the debts incurred by the father-Manager. In the case of a brother-Manager, the debts have to be for the benefit of the family before they are said to be binding on the other members of the family. In the case of the father - Manager, even if the debts are not for the benefits of the family, they are binding on the members of the family if they are antecedent debts which are not tainted by illegality or immorality.

10. With these factual as well as legal backdrops, the Court has to analyse the present case on the basis of rival submissions made by either counsel.

11. The learned counsel appearing for the appellants has succinctly and also laconically contended that the suit B schedule property is originally belonged to one Kuppamuthu Ambalam and after his demise, his five sons have orally divided their family properties and in the said oral partition, the suit B schedule property along with the suit A schedule properties have been allotted to the share of the first defendant, the father of the plaintiff and second defendant and all of them have constituted a Hindu joint family and the first defendant has acted as its Manager and in order to meet his family expenses, he has mortgaged the suit B schedule property under Ex.B.2 in favour of Subbaiya Nadar and since he has not been able to discharge the same, he has sold the suit B schedule property under Ex.B.1 in favour of the defendants 3 and 4. By virtue of Ex.B.1, the defendants 3 and 4 have become the absolute owner of the suit B schedule property and since the first defendant has contracted debts for family necessity, both the mortgage deed as well as sale deed created by him under Exs.B.2 and B.1 are binding upon the plaintiff and second defendant. But the Courts below without considering the correct legal position have erroneously negatived the claim of the defendants 3 and 4 and therefore, the judgments and decrees passed by the Courts below are liable to be interfered with.

12. In order to encrust the argument advanced by the learned counsel appearing for the appellants, the following decisions have been drawn to the attention of the Court.

13. The first and foremost decision is reported in 2006 (3) MLJ - 121 (S.C.) {(HERO VINOTH (MINOR) Vs. SESHAMMAL)}, wherein the Apex Court has held that

"It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of principle of law is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 C.P.C."

14. In the instant case, the main gravaman of the appellants is that the Courts below have failed to consider the legal effects of Exs.B.1 and B.2. Therefore, it is pellucid that this Court is having ample power to make interference under Section 10 of the said Code.

15. The second decision is reported in 1976-1 MLJ - 134 (SANTANAVENUGOPALAKRISHNAN AND OTHERS Vs. K.V.VENUGOPAL AND OTHERS), wherein the Division Bench of this Court has held as follows: "Antecedent debts have special significance. It is therefore, essential that in such connection where alienations are made to pay antecedent debts recited in a registered and old document as existing debts of the family, the minor should be in a position to bring home to the Court that there was no occasion for the father-manager or any other manager of the joint family to involve himself in such entrepreneurship. For this purpose, he must be in a position to prove what would be the income from the joint family properties and that after meeting the generality of expenses connected with the family there could have been available surplus, the existence of which cannot prompt reasonable persons to borrow unnecessarily or to mortgage unnecessarily the family properties so as to ultimately burden them. It would be a practical impossibility for the alienees who are brought to the threshold of the Court on the facts adverted to by the minor challenging coparcener to prove that the consideration which passed under one or other alienation made by the father- manager was rightfully or properly utilised by their vendors. It would be unreasonable to expect such meticulous proof of appropriation and treatment of such consideration nearly 15 or 20 years after the date of such alienation."

16. From the close reading of the decision referred to above, it is easily discernible that in order to discharge antecedent debts, the father - Manager is having every right to sell joint family property so as to bind the shares of other members. It is also made clear to the Court that it is not possible on the part of the alienees to know the fact whether the father-Manger has properly utilised the sale consideration.

17. The third decision is reported in AIR 1982 SUPREME COURT - 84 (PRASAD AND OTHERS Vs. V.GOVINDASWAMI MUDALIAR AND OTHERS), wherein the Apex Court has held that

"The father in a joint Hindu family may sell or mortgage the joint family property including the sons' interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided

a. the debt was antecedent to the alienation and b. It was not incurred for an aimmoral purpose. The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality."

18. The fourth and last decision is reported in 2002 (3) MLJ - 43 (MINOR S. VIJAYAKUMAR (DIED) AND OTHERS vS. SUBBARAYAN, S/O.C.M.RAMASAMY GOUNDER, TRICHY DISTRICT), wherein the Division Bench of this Court has held that

"It is settled law that minors' impugning alienations by joint family Manager/father should allege and prove that they were for immoral or illegal purposes. The onus is on them to show that the recitals in the deeds are false and that the vendor did not receive consideration or that the consideration was for immoral or illegal purposes."

19. In the light of the decisions referred to above, even at the risk of jarring repetition, the Court would like to point out that the father- Manager is having undettered right to mortgage or sell the joint family properties so as to discharge antecedent debts provided the said debts have not been incurred for immoral purpose. Further, the transaction made by father- Manager is valid and binding upon other sharers. Further, it is also made clear that the sons of father-Manager under pious obligation are liable to discharge the debts incurred by their father and besides if any member of joint family challenges any transaction made by father - Manager, it is for him to prove that the transaction is a false one and father - Manager has not received consideration for the same.

20. In the present case, the first defendant has acted as father- Manager of the Hindu joint family consisting of the first defendant, plaintiff and second defendant. In view of the settled legal position, the first defendant is having unfettered right to sell or mortgage joint family properties, so as to discharge antecedent debt. As adverted to earlier, the first defendant has executed Ex.B.2, the mortgage deed in favour of Subbaiya Nadar, wherein it has been clearly recited that the first defendant has created the said mortgage so as to meet out his family expenses and also to meet out education expense of minor son and also for meeting marriage expenses. Therefore, it is very clear that Ex.B.2 has come into existence only for legal necessity. Since the first defendant has not been able to discharge the mortgage debt incurred under Ex.B.2 and also for meeting other expenses he has sold the suit B schedule property to the defendants 2 and 3 under Ex.B.1, wherein also it has been clearly recited that Ex.B.1 has been created only for the purpose of discharging mortgage debt and also for meeting family expenses. Therefore, Ex.B.1 has also been created for legal necessity.

21. It is not the case of the plaintiff that the first defendant is or was having immoral life and he incurred debs tainted with immorality and in order to discharge the same, he has created Exs.B.1 and B.2. The only averment raised in the plaint is that in order to defeat and delay the interest of the plaintiff in the suit B schedule property, the first defendant has created Exs.B.1 and B.2. Since no allegations within the campus of immorality have been made on the side of the plaintiff, the Court can very well come to a conclusion that Exs.B.1 and B.2 are binding upon the plaintiff as well as first defendant. Further, the plaintiff has virtually failed to prove that the debts incurred under Ex.B.2 as well as the sale consideration received under Ex.B.1 have not been utilised for the benefit of the joint family. Therefore, viewing from any angle, the Court can safely come to a conclusion that Exs.B.1 and B.2 are valid transactions and the same are binding upon the share of the plaintiff and first defendant.

22. In order to supplant the argument advanced by the learned counsel appearing for the appellants, the learned counsel appearing for the first defendant has advanced a wee bit specious argument to the effect that the plaintiff has got married in the year 1979. After marriage, he and his wife have lived with parents and due to despair betwixt his wife and mother, he started to live separately and since he started to live separately, the first defendant has acted against his interest and in order to defeat his right in the suit B schedule property, the first defendant has falsely created Exs.B.1 and B.2 and further, Ex.B.1 has been created for inadequate consideration and since Exs.B.1 and B.2 have been falsely created for the purpose of defeating the rights of the plaintiff, the same are not binding upon him and also upon the second defendant and further Exs.B.1 and B.2 have been created at the instigation of D.W.3, viz., Alagappan who is having antagonistic attitude towards the plaintiff and in order to prove the same, on the side of the plaintiff, plethora of evidence has been let in and the trial Court without considering the contentions urged on the side of the plaintiffs has erroneously held that Ex.B.1 sale deed is binding upon the shares of the first and second defendants. But the First Appellate Court, after making threadbare discussion with regard to rival contentions has rightly found that Exs.B.1 and B.2 are not bonafide transactions and ultimately, non-suited the defendants 3 and 4 and there is no inkling nor vantage to make interference with the well merited judgment passed by the First Appellate Court and therefore, the present appeal deserves dismissal.

23. In support of the argument advanced by the learned counsel appearing for the first respondent, the following decisions have been brought to the attention of the Court.

24. The first and foremost decision is reported in 1965 (1) MLJ - 6 (BALMUKAND Vs. KAMALA WATI AND OTHERS), wherein the Apex Court has held that "The adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them."

25. For better appreciation, the Court has to perorate the facts mentioned in the decision referred to above. In the decision referred to above, it has been clearly stated that the family manager of the joint family has sold a joint family property which is difficult to manage and also results in losses for the purpose of investing the sale proceeds in a profitable manner. Under the said circumstances, the Apex Court has held that since adult members are in existence, they should be consulted.

26. It is an acknowledged principle of law that each case must be determined in the facts situation obtaining therein. In the instant case, the first defendant has created Ex.B.2 to meet out joint family expenses and subsequently, created Ex.B.1 to discharge mortgage debt created under Ex.B.2 and also for meeting out other legal expenses. Therefore, the facts involved in the present case are totally alien from the facts mentioned in the decision referred to above. Under the said circumstances, the decision referred to above, cannot be attuned in the present case.

27. The second decision is reported in AIR 1982 SUPREME COURT - 84 (PRASAD AND OTHERS Vs. V.GOVINDASWAMI MUDALIAR AND OTHERS), wherein the Apex Court has held as follows:-

"A natural guardian of a Hindu minor has power in the management of his estate to mortgage or sell any part thereof in case of necessity or for the benefit of the estate. If the alienee does not prove any legal necessity or that he does not make reasonable enquiries, the sale is invalid. But the father in a joint Hindu family may sell or mortgage the joint family property including the sons' interest therein discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided a. the debt was antecedent to the alienation and b. it was not incurred for an immoral purpose. The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of an and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons' share in the case of a joint family. The privilege of alienating the whole of the joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the son or grandson only. No other person has any such privilege. 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 the instant case on the finding arrived at that the consideration for the sale deed in question was thoroughly inadequate, the sale could not be upheld."

28. In the decision referred to above, the Apex Court has pointed out under what circumstances a father - manager of a Hindu joint family may sell or mortgage the joint family property including the sons interest. Further, the Apex Court has held that the sale in question is having inadequate consideration, the same cannot be upheld. In the instant case, it is not the contention of the plaintiff that the consideration mentioned in Ex.B.1 is inadequate. In fact, this Court has groped the entire averments made in the plaint and found no such averment to that effect. Since no averment to that effect is made in the plaint, the Court need not consider the same. It is a well recognised principle of law that any amount of evidence or argument without necessary pleadings cannot be looked into. Therefore, without having necessary pleading to the effect that Ex.B.1 is having inadequate consideration, the learned counsel appearing for the first respondent has accited the decision mentioned above. It is an admitted fact that Ex.B.1 has come into existence in the year 1983. In Ex.B.1, it is clearly mentioned that the sale consideration has been fixed at Rs.6,700/-. It is the bounden duty of the plaintiff to prove that the suit B schedule property would fetch more value than mentioned in Ex.B.1 in the year 1983. But the plaintiff has failed to prove the same. Therefore, it is needless to say that the decision mentioned above cannot be relied upon in the present case.

29. The third decision is reported in 1997 LAW WEEKLY 37 - 217 (SAMPOORNA AMMAL Vs. ASOKAN AND OTHERS), wherein the Division Bench of this Court has held that

"Transfer for inadequate consideration by the father or manager not valid although there may be legal necessity."

30. It has already been dealt with elaborately that the plaintiff has virtually failed to prove the above aspect. Further, there is no effective pleading to that effect. Without pleading, the Court cannot look into the above aspect. Therefore, the decision referred to above cannot be applied in the present case.

31. Now, the Court has to consider the residual argument advanced by the learned counsel appearing for the first respondent. As adverted to earlier, the learned counsel appearing for the first respondent has also argued that D.W.3 viz., Alagappan is having animosity towards the plaintiff and only under his instigation, Exs.B.1 and B.2 have come into existence. In Ex.B.2, the said Alagappan has not put his signature as attesting witness. In Ex.B.1 alone, he has put his signature as one of the attestors. From the available evidence, the Court can easily discern that both the plaintiff and D.W.3 are having despair amongst themselves. Simply because D.W.3 is having antagonistic attitude towards the plaintiff, the Court cannot come to a conclusion that Exs.B.1 and B.2 are invalid and the same are not binding upon the plaintiff. The first defendant being the manager of the joint family has executed Ex.B.2 to meet out his family expenses and subsequently, he created Ex.B.1 in favour of the defendants 3 and 4. It has already been pointed that no such allegations within the campus of immorality have been made against the first defendant and therefore, the transactions made under Exs.B.1 and B.2 are valid and binding upon the plaintiff. In the light of the foregoing discussion of both the factual and legal premise, this Court has found valid force in the argument advanced by the learned counsel appearing for the appellants and whereas the argument advanced by the learned counsel appearing for the first respondent is sans merit.

32. As adverted to earlier, the trial Court has held that Ex.B.1 is valid to the extent of the shares of the first defendant and second defendant. But the First Appellate Court has held that Ex.A.1 is not a bonafide document and is not binding upon the plaintiff, first defendant and second defendant and ultimately negatived the claim of the defendants 3 and 4. Both the Courts have failed to consider the well recognised principle of law to the effect that a father - Manager is having unfettered right to sell or mortgage joint family properties so as to discharge antecedent debts. It has already been pointed out that Exs.B.1 and B.2 are valid transactions created only for the purpose of discharging antecedent debt and also for meeting out family expenses. Therefore, the findings given by the Courts below with regard to Exs.B.1 and B.2 are totally perverse and the same are liable to be interfered with and consequently, the judgments and decrees passed by the Courts below are liable to be set aside as stated infra.

33. In fine, this appeal is allowed with costs, The judgments and decrees passed by the Courts below with regard to B schedule property are set aside and the suit is dismissed with costs in respect of the same (B schedule property). Consequently, the connected Civil Miscellaneous Petition No.18194 of 1993 is closed.

To

1.The District Judge, Pudukottai

2.The Subordinate Judge, Pudukottai




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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