Madras High Court
Nataraja Naidu vs Ramadoss Chetty And Anr. on 3 April, 1987
Equivalent citations: (1988)1MLJ389
JUDGMENT R. Sengottuvelan, J.
1. The question of law that arises for consideration in this second appeal is whether a third party purchaser from a co-owner in respect of a small separate item of property can get his share allotted in a suit filed by the non-alienating co-owner for declaration and injunction in respect of the whole property impeaching the sale in favour of the purchaser. The facts of the case are briefly as follows:
2. The appellant Nataraja Naidu and the second respondent Nallayya Naidu are brothers being the sons of one Ethirajammal. The suit property, a vacant site, was purchased in the name of Ethirajammal by means of a sale deed dated 26.3.1960 marked as Ex. A-1 for Rs. 50. The said Ethirajammal died in January 1977. The case of the appellant is that the property was purchased by him benami for him in the name of Ethirajammal and that he had been in possession of the property and had also prescribed title to the same by continuous possession and enjoyment for well over the statutory period. The respondents denied any such benami transaction and contended that the second respondent was allotted the western half share of the suit property, that the property was purchased by Ethirajammal out of her own funds, that she was the absolute owner thereof, that she died in 1977 leaving the appellant and the second respondent herein as legal representatives, that both the appellant and the second respondent were in possession of the suit property, that they orally divided the suit property allotting the western half share of 3 1/2 cents to the second respondent and the eastern half share of 3 1/2 cents to the appellants that the first respondent purchased the second respondent's share of 3-1/2 cents under a registered sale deed dated 17.4.1977 for Rs. 400 and that the appellant knew about the said sale and stood by and acquiesced with the same. It is also pointed out that the said Ethirajammal by means of another sale deed dated 19.11.1940 purchased another 52 cents in Survey No. 58/3 which she had settled in favour of one Kasturi. The allegation that the appellant was tethering his cattle and storing hay-rick and stocking cowdung cakes are denied and in any event, if there is any such user it is only fugitive in character. In the additional written statement, the first respondent contended that the suit property was owned by Ethirajammal and after her death, in an oral division, the western share fell to the second respondent who sold the same to the first respondent as per Ex. B-2.
3. The trial Court, on a consideration of the oral and documentary evidence came to the conclusion that the contention of the appellant that the sale deed in favour of his mother under Ex. A-1 is a benami transaction entered into in the name of the mother for the benefit of the appellant, is not established. The trial Court also came to the conclusion that the second respondent is entitled to a half share but disbelieved the case of the respondents that there was also an oral partition by which the western half share was allotted to the second respondent. Yet, at the same time, the trial Court held that the appellant as an alienee from the co-owner, who is entitled to a half share, is entitled to have the share purchased by him allotted in this suit itself. In view of the above said findings, the trial Court affirmed the title of the appellant to the half share in the suit property.
4. As against the said judgment of the trial Court, the appellant herein viz., the plaintiff filed A.S. No. 144 of 1979 on the file of the learned Principal Subordinate Judge, Chengalpattu. The first respondent herein filed a memorandum of Cross-objections regarding the non-acceptance of the case of the respondents by the trial Court that the western half share was allotted to them. The lower appellate Court, on a consideration of the judgment of the trial Court, on a consideration of the judgment of the Trial Court and the evidence, came to the conclusion that the findings of the trial Court are just and proper and at the same time observed that the first respondent is entitled to the western half share in equity also and dismissed the appeal. This second appeal is filed challenging the legality and correctness of the concurrent findings of both the Courts below.
5. Mr. A.S. Raman, learned Counsel for the appellant, raised the following contentions in support of his argument that the judgments of both the Courts below are not sustainable in law:
1. Both the Courts below on the evidence ought to have come to the conclusion that the suit property was purchased by the appellant under Ex. A-1 in the name of his mother who acted benami for himself;
2. In any event, even if the benami transaction is not established, yet, the remedy available to the first respondent is only to file a suit for partition and separate possession and his title to the western half share cannot be confirmed in this suit.
6. In so far as the first contention is concerned, it is pointed out that the vendor to the sale deed Ex. A-1 has been examined as P.W. 2 to show that the consideration was passed from the appellant at the time of the sale deed. The attestor to the said sale deed has been examined as P.W. 3 for the same purpose. But both the Courts below could not believe the evidence of these two witnesses in view of the inherent circumstances present in the case. In the said sale deed itself an earlier mortgage for Rs. 250 in favour of Ethirajammal executed by the vendor under Ex. A-1, who was examined as P.W. 2, was quoted and there is also a recital stating that on the date of Ex. A-1, the amount due under the mortgage amounting to Rs. 350 was directed to be adjusted from out of the sale price. According to the recital in the sale deed, the balance of Rs. 50 was paid on the date of Ex. P-1. There is no evidence to show that the mortgage in favour of Ethirajammal was itself taken benami for the appellant. In view of the strong circumstances that are present in this case showing that the appellant had advanced the mortgage consideration for Ex. A-1 ought to have flown from Ethirajammal, both the Courts below disbelieved the evidence of P.W. 2 and P.W. 3 and rejected the case of the appellant.
7. It is contended on behalf of the appellant that the consideration under Ex. A-1 being only Rs. 400 there is every possibility of his paying the amount as spoken to by P.W. 2 and P.W. 3 and both the Courts below had not considered this aspect of the case and findings of the Courts below in this regard are perverse. But there is no room for such an argument in this case because how the sale price under Ex. A-1 was paid is recited in the said document itself viz., by adjusting the mortgage amount due under the mortgage in favour of Ethirajammal unless it is showing amount in the name of his mother, it cannot be said that consideration for Ex. A-1 proceeded from the appellant. The appellant had not let in any evidence with reference to the amount advanced under the mortgage in favour of Ethirajammal. Under the circumstances, the concurrent findings of the Courts below that the consideration for the sale deed Ex. A-1 proceeded not from the appellant out from Ethirajammal are in accordance with the undisputable circumstances in this case and they will have to be affirmed.
8. An argument was also advanced that the appellant had been in possession of the entire extent of the suit property and that his brother was living away and as such, he had also perfected title by adverse possession well over the statutory period. It has to be pointed out here that the suit property being a vacant site, possession follows title and as such the first respondent will be deemed to be in possession and unless the appellant establishes ouster by any overt act on his part the appellant cannot put forward a plea of exclusive possession and thereby perfected title by adverse possession. Hence, the contention based on the question of possession also cannot be entertained. It is in evidence that the original sale deed Ex. A-1 was with Ethirajammal and she was living with the appellant and as such, Ex. A-1 title deed was with the appellant. Under the circumstances, nothing turns upon the custody of the title deed in this case.
9. The next question that has to be considered is whether there is any possibility of benami transaction and whether there is any motive for the appellant to enter into such a benami transaction. The appellant had not even attempted to establish any motive which promoted him to take the sale deed benami in the name of his mother. Hence, on a consideration of the several indication benami transaction, I have to hold that the findings of both the Courts below that Ex. A-1 is not a benami transaction are correct.
10. In so far as the findings of both the Courts below that there was a partition in respect of the suit property In which the western share was allotted so the first respondent is not established, are also borne out by a proper appreciation of the evidence. Such an oral partition appears to be improbable on account of the inconsistent versions put forward by the first respondent. In one place, the first respondent put forward a case of partition between his vendor, the second respondent and his brother, the appellant. In another place, the partition between the first respondent and the appellant was spelt out. Under the circumstances, the findings of both the Courts below that no division of the suit property was made also have to be confirmed.
11. The question of law that was raised on behalf of the appellant is that in any event, the first respondent being a purchaser of undivided share from a co-owner is entitled only to file a suit for partition and possession and he cannot succeed in getting his share allotted in this suit by putting forward a defence in the actions started by the appellant for declaration and injunction impugning the sale deed Ex. A-1. Mr. A.S. Raman, learned Counsel for the appellant, relied upon the following passage in paragraph 261 at page 347 of Mulla's Principles of Hindu Law:
261. Rights of Purchaser of Coparcener"s Interest: According to the Mitakshara Law as applied in Bombay, Madras and Madhya Pradesh and some other States a Coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties. But he has no right to alienate, as his interest any specific property belonging to the coparcenary, for no coparcener can before partition claim any such property as his own; if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property.
Reliance is also placed on the following proposition in paragraph 261(2) at page 351.
Right to Partition: In Bombay and Madras, the purchaser of the undivided interest of a coparcener in a specific property belonging to the joint family is not entitled to a partition of that property alone, for his vendor himself could not have claimed it, unless the other co-purchasers consent to it. He can only enforce his rights by a suit for a general partition.
Relying on the above passages, it is contended that in any event the remedy available to the first respondent is only to file a suit for a general partition. The above propositions are all well recognised. But at the same time, based upon equitable considerations, the Courts have taken the view that in cases where a small item of property not exceeding his share alone was alienated by a co-owner and if the other co-owner disputes such an alienation by means of a suit for impugning the sale, then the Court in the process of adjudicating the reliefs claimed by the non-alienating co-owner can allot the share of the purchaser instead of driving him to a separate suit. In the case reported in Ramasami Aiyar and Ors. v. A.S. Venkatarama Ayyar I.L.R. 46 (1923) Mad. 815 : A.I.R. 1924 Mad. 81, a Bench of this Court recognised the above principle and observed as follows:
Where a member of a joint Hindu family sued to recover a certain item of family property alienated by another member on the ground that the alienation was not binding on him, and it appeared that the plaintiff was the only surviving co-parcener and that the value of the property alienated was less than that of the alienor's share in the entire family properties at the time of the alienation, Held, that the alienee need not be directed to institute a separate suit to work out his rights by a partition, but was entitled in the coparcener's suit as a defendant to get a decree for partition, and claim to be allotted the item purchased by him in respect of his vendor's share, if that was consistent with the rights of the other coparceners, and that, if the value of the item did not exceed the value of the alienor's share in the entire family properties at the time of the alienation, the alienee was entitled to retain the entire property sold to him.
This equitable principle received recognition by another judgment of the Full Bench of this Court in K. Permanayakam Pillai v. S.T. Sivaraman and Anr. , Satyanarayana Rao, J., observed (at page 319) as follows:
In a case of an alienation by a member of the family of an item of property, the non-alienating co-parcener may sue to recover possession of the property without admitting the right of the alienee to the alienor's share. It has been held in Subba Goundan v. Krishnamachari, I.L.R; (1922)45 Mad. 449 : A.I.R. 1922 Mad. 112 that if the alienation was by the father or manager of the property of the family, in a suit instituted by the co-parceners to recover possession of the property on the ground that it is not supported by necessity, the proper procedure is to decree to the plaintiffs recovery of possession of the entire property conveyed under the sale to the alienee and it is not permissible to the alienee defendant in the suit to insist that this equity should be worked out in that very suit. This strict view was not followed in two later cases Davud Beevi Ammal v. Radhakrishna (1922)44 M.L.J. 309 : A.I.R. 1923 Mad. 467, and Ramasami Aiyar v. Venkatarama Aiyar (1923)45 M.L.J. 203 : I.L.R. 46 Mad. 815 : A.I.R. 1924 Mad. 81. In these two decisions the rule was not treated as an inflexible one and must be applied according to the circumstances of the case. If for example, there was only one surviving co-parcener the plaintiff, and the property alienated was less than that of the alienor's share in the entire family properties at the time of the alienation, there is no necessity to drive the alienee to a separate suit and that the equities could be worked out even in that very suit. This view is based upon the observations of the Privy Council in Ramakishore Kedarnath v. Jainarayan Ramrajpal (1913)25 M.L.J. 512 : L.R.40 I.A. 213 : I.L.R. 40 Cal. 966 (P.C.) The same view was adopted in Davud Beevi Ammal v. Radhakrishna Aiyar (1922)44 M.L.J. 309 : A.I.R. 1923 Mad. 467 by a Bench.
Under the circumstances, the equitable doctrine affirmed by this Court has to be applied to the facts of this case and the conclusion of the lower appellate Court that the first respondent is entitled to the western half share of 3 1/2 cents is justifiable. The materials contained in the Commissioner's report also do not in any way make the conclusion of the lower appellate Court unjustifiable. There are no merits in the second appeal and the same is dismissed. However, there will be no order as to costs.