Karnataka High Court
Dr Dinanath Laxmanrao Patil vs Neelakanth Basavraj Athanimath on 3 July, 2017
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
RFA NO. 703/2005 (PAR)
BETWEEN:
1. DR. DINANATH LAXMANRAO PATIL,
AGED ABOUT 64 YEARS,
R/O CTS NO 285/2,
"TAVA KRUPA" BUILDING,
SHASTRI NAGAR,
BELGAUM, PIN-590001
2. DR. MEENA W/O DINANATH PATIL,
AGED ABOUT 41 YEARS,
R/O CTS NO 285/2,
"TAVA KRUPA" BUILDING,
SHASTRI NAGAR,
BELGAUM, PIN-590001
3. SMT. NALINI W/O LAXMANRAO PATIL,
AGED ABOUT 38 YEARS,
R/O CTS NO 285/2,
"TAVA KRUPA" BUILDING,
SHASTRI NAGAR,
BELGAUM, PIN-590001
... APPELLANTS
(BY SRI R.M. KULKARNI & SMT. HEMALEKHA K.S. ADVS.)
AND
1. SRI. NEELAKANTH BASAVRAJ ATHANIMATH
SINCE DEAD BY LRS,
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1(a) NEETA NEELKANTH ATHANIMATH,
AGE: 31 YEARS, R/O: BAILHONGAL,
DISTRICT BELGAUM, PIN-591102
1(b) APURVA NEELAKANTH ATHANIMATH,
AGE: 13 YEARS, R/O: BAILHONGAL,
DISTRICT BELGAUM, PIN-591102
1(c) ABHISHEKH NEELAKANTH ATHANIMATH
AGE: 13 YEARS, R/O: BAILHONGAL
DISTRICT BELGAUM, PIN-591102
1(b) & (c) ARE REPRESENTED BY THEIR
GUARDIAN MOTHER RESPONDENT NO.1(a).
PIN-591102.
1(d) ANNAPURNA W/O BASAVARAJ ATHANIMATH
AGE: 51 YEARS, R/O: BAILHONGAL,
DISTRICT BELGAUM, PIN-591102
2. MISS. RUPA BASAVARAJ ATHANIMATH,
AGE: 29 YEARS, R/O: BELGAUM,
PIN-590001
3. MISS GEETHA BASAVARAJ ATHANIMATH,
AGE: 28 YEARS, R/O: BAILHONGAL,
PIN- 591102
4. MISS DEEPA BASAVARAJ ATHANIMATH,
AGE: 26 YEARS, R/O BELGAUM,
PIN - 591101
5. SRI. BASAVARJ RACHAYYA ATHANIMATH,
AGE: 30 YEARS, R/O CTS 4938,
SPM ROAD, BELGAUM, PIN - 590001.
... RESPONDENTS
(BY SRI D. A. DESHAPANDE ADV, FOR JAGADISH PATIL
ADVS. FOR R1(D), R1B & R1C ARE MINORS REPRESENTED
BY R1A. R1A, 2, 3, 4 & 5 ARE SERVED.)
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THIS RFA IS FILED U/S 96 OF C.P.C. AGAINST THE
JUDGMENT AND DECREE DATED 31.01.2005 PASSED IN
O.S.NO.45/1994 ON THE FILE OF THE III ADDITIONAL
CIVIL JUDGE (SR. DN.), BELGAUM, DECREEING THE SUIT
FOR PARTITION & SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.06.2017, AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING : -
JUDGMENT
Defendants No.1 to 3 in O.S.No.45/1994, on the file of the III Additional Civil Judge (Sr.Dn), Belagavi have preferred this appeal challenging the judgment dated:31.01.2005 in the said suit.
2. Referring to the parties with respect to their positions in the court below, for the sake of convenience, the substance of the pleadings can be stated as below:-
The subject matter of the dispute consists of two properties:- i) a house and open space bearing C.T.S.No.4936, measuring 196 1/9 square yards and ii) shop premise bearing C.T.S.No.4937, measuring 24 8/9 square yards, both situate at Shama Prasad Mukherji Road at Belagavi city (referred to as suit properties). Suit properties are the ancestral properties of plaintiffs and the 4th defendant. The 4th defendant Basavaraj Rachayya :4: Athanimath is the husband of 2nd plaintiff and father of plaintiffs No.1 and 3 to 5. The 4th defendant sold away the entire suit property in portions by executing three sale deeds dated: 30.12.1988, 29.10.1989 and 02.07.1990 (Ex.D-1 to Ex.D-3) and these sale deeds were preceded by three agreements of sale dated:19.11.1987, 05.09.1988 and 23.05.1990 (Ex.P-10 to Ex.P-12)
3. The plaintiffs alleged that the 4th defendant was not wordly wise. He had no understanding capacity of the consequences of his acts, that there was no antecedent debts to the family and that there was no legal necessity for alienating any portion of the suit property. They alleged further that the defendant No.1 and 2 were their family doctors. Defendant No.1 to 3 exercised undue influence on 4th defendant, played fraud on him, and obtained his signatures on blank stamp papers to create agreements of sale and the sale deeds to grab the valuable property belonging to their family. They stated that the sale deeds executed by 4th defendant in favour of defendant No.1 to 3 were without consideration and that the 4th defendant did not execute sale deeds voluntarily. Alleging so, they further :5: pleaded that these sale deeds did not bind their interest and that they had preferential right to purchase the share of the 4th defendant. On this premise, they brought a suit for setting aside the sale deeds and to effect partition of the suit properties by allotting 2/3rd share to them.
4. The defendant No. 1 and 2 filed written statement refuting the plaint averments. They mainly contended that defendant No.4 was doing business during the period 1987 to 1990. He suffered loss in his business. At the same time, he wanted to develop his business by investing amounts. Therefore, he expressed his desire to sell the suit property in their favour as they were already in possession of the portion of suit property as tenants. They negotiated with defendant No.4 in the presence of plaintiff No.2 and her brother and thereafter they decided to purchase the suit properties under three sale deeds. They have stated that defendant No.4 was the absolute owner of the entire suit properties. All the revenue records stood in his name. Defendant No.4 wanted money not only for improving his business but also for meeting educational expenses of his children and his family requirements. This :6: was the reason for defendant No.4 executing sale deeds in their favour. They have pleaded that they purchased the suit property from defendant No.4 for valuable consideration. In fact, the plaintiffs also confirmed their possession after they purchased the property. The plaintiffs have suppressed the actual state of affairs by colluding with the defendant No.4 and therefore, they pleaded for dismissal of the suit.
5. The Trail Court framed following issues based on the pleadings of the parties:-
1. Whether plaintiffs prove that the suit properties are undivided properties of the family of the plaintiffs and the 4th defendant?
2. Whether plaintiffs prove that, the suit properties were allotted to the share of 4th defendant in the family partition dated 14-06-
1982?
3. Whether plaintiffs prove that, the defendants No.1 to 3 being the family doctors of plaintiffs and 4th defendant have exercised undue influence on the 4th defendant and practiced fraud upon him by making representation and got his signature on blank papers and created false and bogus agreements of sale and the sale deeds?
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4. Whether plaintiffs prove that their family and family of the 4th defendant never in need of money and there were no antecedent debts to the family?
5. Whether plaintiffs prove that, there was no legal necessity for the family to alienate any portion of the property belonging to it?
6. Whether plaintiffs prove that, the alleged sales of the properties belonging to the family were not for the benefit of the family?
7. Whether plaintiffs prove that, the agreement of sales dated 19-11-1987, 05-09-1988 and 23- 05-1990 are created as contended in plaint para 6 to 8?
8. Whether plaintiffs prove that, the sale deeds dated 30-12-1988, 29-10-1989 and 02-07- 1990 are created in plaint para 9 to 11?
9. Whether plaintiffs prove that, the alleged alienations are without any considerations and are not the voluntary acts of the 4th defendant?
10. Whether plaintiffs prove that, the 4th defendant has no right to alienate the share of the plaintiffs and the alienations made by the 4th defendant are not binding on them?
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11. Whether the defendants No.1 to 3 prove that, the defendant No.4 was doing business and suffered loss during 1987 to 1990?
12. Whether the defendants No.1 to 3 prove that they are bonafide purchasers for valuable consideration?
13. Whether defendants prove that they are the absolute owners of the suit property as per the respective sale deeds?
14. Whether plaintiffs are entitled for 5/6th share in the suit property?
15. Whether the court fee paid is not proper?
16. Whether plaintiffs are entitled for the decree sought?
17. What order or decree?
6. When the case was taken up for recording the evidence by the Trial Court, the 2nd plaintiff adduced evidence as P.W.1 and produced 22 documents as per Ex.P- 1 to Ex.P-22. Three witnesses, D.W.1 to D.W.3, adduced evidence on the defendants' side and produced 6 documents as per Ex.D-1 to Ex.D-6.
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7. The learned Trial Judge appreciated the evidence and arrived at the following conclusions for decreeing the suit.
a) The evidence of P.W.1 discloses that the suit properties were allotted to defendant No.4 in a family partition effected on 14.06.1982 between him and his brothers. Even D.W.1 admits in the cross-examination that the suit properties were the ancestral properties of the 4th defendant.
b) Defendant No. 4 had no absolute right, title or interest to alienate or transfer the suit properties and that the plaintiffs have got share in them. At the time when the agreements of sale and sale deeds were executed, plaintiffs 3 to 5 were minors.
The defendant during the cross-examination admitted that she did not obtain permission from the court to purchase minors' property. Though defendant No.4 was the Karta of the family, he had no right to alienate suit property, since the sale made by him was not for the benefit of the family and these aspects can be clearly gathered from the evidence of D.W.1 itself.
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c) The co-sharers did not consent for the sale. Therefore the sale made by defendant No.4 is void and not binding on the plaintiffs.
d) The defendants 1 to 3 failed to prove that the sale of the suit property by defendant No.4 in their favour was not for legal necessity of the family. Though sale for legal necessity is permissible, the sale cannot be validated unless the purchaser establishes the legal necessity that existed, so that the Karta can sell the family property. The defendants have not placed any evidence to show that the 4th defendant had borrowed money from Basaveshwara Co-operative Bank and that he wanted money for his business purpose. The answers given by D.W.1 in the cross-examination make it very clear that there was no legal necessity for defendant No.4 to alienate the suit property. On the other hand, the plaintiff's evidence discloses that there were no antecedent debts to the family. The 4th defendant was working in a shop. The P.W.1 was selling saris. The son of P.W.1 was also working. These aspects are very much forthcoming : 11 : from the evidence of P.W.1. Therefore, the family had sufficient income to meet the expenses and there was no necessity of any kind compelling 4th defendant to sell the suit property.
e) The plaintiffs are able to prove that the defendants 1 and 2 being their family doctors, exercised undue influence on 4th defendant, obtained his signatures on blank stamp papers and created false and bogus agreements of sale and sale deeds. The sale transactions were without any consideration and they were not the voluntary acts of the 4th defendant.
8. Assailing the above findings, the learned counsel for the appellant/defendants 1 to 3 argued the following points:-
a) The plaintiffs allege that the defendants 1 to 3 played fraud on the 4th defendant to obtain the sale deeds. The plaint does not disclose the particulars of fraud and misrepresentation as required to be stated under Order VI Rule 4 of C.P.C.: 12 :
b) The suit properties were allotted to defendant No.4 in a family partition between him and his brothers. It may be a fact, but defendant No.4 was the manager of the family. Being the manager, he had every right to alienate the family property for legal necessities. The sale made by defendant No.4 in favour of defendants 1 to 3 was for legal necessity only. In the written statement it is clearly stated that the 4th defendant had suffered loss in his business and he wanted to develop his business. It is also stated in the written statement that defendant No.4 was indebted to many persons and that he also wanted money to meet the expenses for educating his children. D.W.1 has proved the legal necessity. P.W.1 has admitted in the cross-
examination that her husband had borrowed money from Basaveshwara Co-operative Bank and it had not been repaid.
c) Defendants have successfully proved that the 4th defendant was in financial distress, he was getting a meager salary of Rs.500/- being a : 13 : salesman in shop. This money was not at all sufficient to feed the family consisting of 5 to 6 members. The plaintiffs have not rebutted this evidence of the defendants. The plaintiffs who say that they had agricultural income of Rs.10,000/- to 15,000/- per month, have not placed any documents in proof of it. The P.W.1 has not placed any proof to show that she was doing sari business. In the year 1987, the marriage of the 1st daughter of the 1st plaintiff and the 4th defendant was arranged. The 1st agreement of sale Ex.P-10 came into existence in the year 1987. Therefore, these aspects prove that the family was not in financially sound position and this was the reason for defendant No.4 deciding to sell the suit properties.
d) The suit is time barred. P.W.1 has clearly admitted in the cross-examination that she came to know about the sale deeds executed by her husband three years before filing the suit. The suit should have been filed within three years from the date of execution of the sale deeds or : 14 : from the date of knowledge. This suit having been filed three years after is time barred.
e) If it was the intention of defendants 1 to 3 to cheat defendant No.4, only one document was sufficient. But series of documents, agreements of sale on different dates and the sale deeds on different dates only show the genuineness of the transaction.
f) The learned Trial Judge has not appreciated the evidence in proper perspective. The wrong approach of the Trial Judge in appreciation of evidence has resulted in great injustice being caused to the defendants 1 to 3. Therefore, appeal needs to be allowed.
9. The learned counsel for the respondent per contra argued as below:-
a) Suit is not time barred. Article 109 of the Limitation Act is applicable. Since the suit is for partition, questioning the alienation of joint family property, period of limitation is 12 years and suit is within time.: 15 :
b) Defendants 1 to 3 were aware that the 4th defendant was not the absolute owner of the suit property. It was allotted to him in a family partition. The moment children were born to him, the suit property became the joint family property.
He alone could not have sold the suit property to defendants 1 to 3.
c) The learned Trial Judge has given a clear finding that the suit property was ancestral, by noticing admission given by D.W.1 in the cross-
examination.
d) The Trial Judge wrongly framed issues 4 to 6 throwing burden on the plaintiff to prove that the sale was not for legal necessity. Actually, it was for the purchaser to prove that the sale was for legal necessity.
e) Defendants 1 to 3 have not at all proved that the sale was for the legal necessity of the family. No evidence is placed before the Court that the 4th defendant had taken loan from Basaveshwara Co-operative Bank. There is nothing to show that he was indebted to many persons. The family : 16 : had sufficient income. Therefore, there was no legal necessity at all.
f) The defendants 1 to 3 should have examined defendant No.4 for establishing their case. Why he did not contest the suit, is not known to the plaintiff. Plaintiff No.2 is the resident of Bailahongal. She started living separately after coming to know that her husband sold away property neglecting the welfare of the family.
g) Defendants 1 to 3 are not bonafide purchasers. They did not make enquiry before they purchased the property. It has come in evidence that they did not take out paper publication before purchasing the suit property. Evidence of D.W.1 reveals that he did not make any enquiry before suit property was purchased.
h) The loan at Basaveshwar Co-operative Bank was the personal loan of defendant No.4. His personal loan cannot be called the liability of the family.
i) Valuable property was sold for meager consideration. Defendants 1 to 3 were in a position to dominate the Will of defendant No.4, : 17 : D.W.1 has clearly admitted that defendant No.4 was going to the clinic of defendants 1 and 2 for taking treatment and at that time, there was every possibility of pressure being exerted on defendant No.4 to compel him to sell the suit property to them.
j) When the sale deeds were executed, minors' interest was involved in the property. Therefore, sale made by defendant No.4 without taking permission of the court does not bind the minors' interest.
k) The learned Trial Judge has appreciated the evidence correctly by giving cogent reasons. The well reasoned judgment of the Trial Court need not be interfered with and hence appeal is to be dismissed.
10. On the basis of the above arguments, the following points can be raised for discussion.
i) Is the finding of the Trial Court that defendants 1 to 3 failed to prove that defendant No.4 had legal necessity to sell the suit property to them correct?
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ii) Whether the Trial Court's finding that defendants 1 to 3 played fraud on defendant No.4 to get the sale deeds executed by him is sustainable?
iii) Is the finding of the Trial Court that the defendants 1 to 3 should have obtained permission of the Court for purchasing the property involving minors' interest correct?
iv) Whether the judgment of the Trial Court is erroneous and therefore needs to be interfered with?
POINT NO.1:-
11. The plaintiffs have stated in the plaint that the suit property was not the separate or absolute property of defendant No.4, rather it was joint family property, which was allotted to defendant No.4 in a family partition. But the defendants in the written statement contend that the suit property was the self-owned property of defendant No.4 and he had absolute right, title and interest. The plaintiff No.2, who has adduced evidence as P.W.1, while giving evidence stated on oath that suit properties are ancestral joint family properties and they had been allotted to her husband in a : 19 : partition effected on 14.06.1982. D.W.1 while answering to the cross-examination though denied the suggestion that suit property was the joint family property, he also admitted that the suit property was the ancestral property of defendant No.4. The Trial Court has given a finding that the properties were ancestral and defendant No.4 got them in the family partition. This finding appears to be correct. The question is whether defendant No.4 could have sold them to defendant No.1 to 3. It is well established principle that Karta of a Hindu Joint Family can alienate the joint family property for the legal necessity of the family. Alienation of a joint family property by the Karta to meet his personal or individual requirement does not bind the interest of the other members of the family. Burden is on the purchasers to prove that there was legal necessity. As rightly argued by the respondents' counsel, the Trial Court has wrongly framed the Issues 4 and 5 putting burden on the plaintiffs to prove that there was no legal necessity. The burden of proving should have been on the defendants 1 to 3. Since both sides have led evidence, the burden of proof becomes insignificant. From the available evidence it can be examined whether : 20 : defendants 1 to 3 have proved the legal necessity of defendant No.4 to sell the suit property to them.
12. In the written statement, it is stated in Para 4 that during the period 1987 to 1990, defendant No.4 had suffered loss in his business. He wanted money to develop his business. He had also hand loans to be discharged. He also wanted money to meet the educational expenses of his children and maintain his family. He had plans to put up constructions in his property. Therefore, for all these reasons, defendant No.4 in consultation with plaintiffs decided to sell the suit property to defendants 1 to 3.
13. The 1st defendant adduced evidence as D.W.1. In the examination in chief he has stated that defendant No.4 was doing business and he suffered loss in it. Then he started working as a salesman in the shop on a monthly salary of Rs.500/-. He had a family consisting of a wife, one son and three daughters. He found it difficult to manage the family and also to meet educational expenses of his children. He had obtained loan from Basaveshwar Co-operative Bank Belgaum. He had to return deposit money to one Shreyakar, who was his tenant in a portion of the suit property. In : 21 : addition, he had many hand loans to be discharged. For all these reasons he was in need of money desperately. Therefore, he wanted to sell the suit property.
14. D.W.1 has also stated that before purchasing the property, he made enquiries with regard to genuine need of the money by defendant No.4. Only thereafter they purchased the property. D.W.1 has been subjected to very lengthy cross-examination. Then also he asserts that when defendant No.4 met him, he told that he had financial constraints and that there was a loan transaction at Basaveshwara Co-operative Bank, Belgaum. His salary was only Rs. 500/- and he was finding it very difficult with this meager salary to meet the family expenses. Therefore, defendant No.4 told him that he wanted to sell some portions of the suit property. It is elicited further from D.W.1 in the cross-examination that before purchasing the suit property, he inspected the suit property. Having found that some repairs were required for the property, he asked defendant No.4 to effect repairs and at that time defendant No.4 told him that he had no money.
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15. D.W.1 has also answered in the cross- examination that when he asked the 4th defendant once about the loan transaction of Basaveshwara Co-operative Bank, the latter did not give any information to him and he also did not disclose what was the amount due. He has also answered that he could not make enquiry by going to bank with regard to loan, because defendant No.4 did not give him loan account number. When a suggestion was given to him that the said loan was individual loan of defendant No.4, D.W.1 answered that he came to know that it was the loan on behalf of the joint family. He refutes the suggestion that there was no loan transaction. Defendant No.4 also does not disclose the names of the persons from whom he had taken hand loans and he also does not disclose what was the total amount due towards the hand loan that he had obtained from four persons. D.W.1 has stated that when he enquired with one Mahaveer Hanamannavar with regard to hand loans of defendant No.4, he told him that many people would come and approach defendant No.4 seeking repayment of loan.
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16. Therefore, the above answers of D.W.1 make it very clear that there was legal necessity for defendant No.4 to sell the property. It was the necessity of the family and not that of defendant No.4. It is to be stated here with regard to one suggestion given to D.W.1 regarding the loan at Basaveshwar Co-operative Bank. P.W.1 in the cross- examination admitted very clearly that her husband had taken loan from Basaveshwara Co-operative Bank and her husband had repaid it. But the suggestion given to D.W.1 that defendant No.4 had not borrowed any money from Basaveshwar Co-operative Bank is contrary to the above answer given by P.W.1 in the cross-examination. Therefore, it stands proved that the defendant No.4 had borrowed money from Basaveshwar Co-operative Bank. It is also possible to draw inference from the answers given by D.W.1 in the cross-examination that before purchasing the property, he made enquiry as a prudent man with regard to genuine need of defendant No.4 for money that compelled him to sell the suit property. He also made enquiries with regard to other loan transactions of defendant No.4. If 1st defendant i.e. D.W.1 did not get any information from defendant No.4 in relation to his all the loan transactions, he : 24 : cannot be expected to produce evidence to prove the loan transactions. He has done all that he could do before he purchased the property.
17. The fact defendant No.4 was getting salary of Rs.500/- is in fact admitted by P.W.1 in the cross- examination. She has answered in the cross-examination that her husband was working in a textile shop on a salary of Rs.500/- per month. He worked during the year 1986 - 87 and then left the job. She has further answered that the whole family was depending on the income of her son, who was selling lottery tickets. She might have denied the suggestion that her husband's income of Rs.500/- per month to meet the expenses of family consisting of five members was not sufficient, but it can be said that she denied the suggestion intentionally, being an interested witness. She says that she was doing sari business and her uncle used to supply saris to her from Mumbai. According to her, she was earning Rs.1,000/- per month. She admits that there are no documents in proof of her business. At least she could have examined her uncle. Very important is that instead of giving a definite answer to a suggestion that her : 25 : husband's income was Rs. 500/- was not sufficient for her family maintenance and therefore her husband incurred loan, she answers that she does not know. This is an evasive answer knowing very well that if she had admitted the suggestion, it would go against her. Even if she had denied the suggestion, it would have gone contrary to her earlier answer that her husband had taken loan from Basaveshwara Co-operative Bank. Therefore, this kind of attitude of P.W.1 in giving an evasive answer to important suggestion helps to draw an inference that her husband's income was not sufficient at that time and that was the reason for him to raise loans from the co-operative bank and from other private persons. Therefore, whatever the evidence that D.W.1 has given that defendant No.4 was in financial distress and that was a reason for him to sell the suit property becomes believable. There is probability in his evidence.
18. According to the defendants 1 to 3 the defendant No.4 was the manager of the family. If the entire evidence of P.W.1 is perused, it is possible to state that even she does not dispute that her husband was the manager. Neither in : 26 : the plaint nor in examination in chief of P.W.1 it is stated that the 4th defendant was not the manager of the joint family. Rather, in the cross-examination she has clearly stated that her husband was looking after all the affairs of her family.
19. D.W.3 has given one answer that in August 1988, he took the 4th defendant to one Kekare, a deed writer, who prepared the sale deeds executed by defendant No.4. Mr. Kekare asked the defendant No.4 as to why the names of other members of his family were not shown in the partition deed (Vatani Patra). To this, defendant No.4 told Mr. Kekare that he was the manager of the joint family. So, from this evidence it can be deduced that defendant No.4 was the manager of the family. If he sold the property for the legal necessity of the family, the plaintiffs cannot challenge it. The findings of the learned Trial Judge, therefore cannot be accepted. It is as a result of wrong approach adopted by him. Therefore Point No.1 is answered in negative. It has to be held that defendants 1 to 3 have proved the legal necessity of defendant No.4 for selling the suit property to them as per Ex.D-1 to Ex.D-3.
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20. Where a party to the suit alleges mis- representation, fraud, breach of trust, willful default or undue influence, their necessary particulars shall be stated in the pleading according to Order VI Rule 4 of C.P.C. The Supreme Court in the case of Afsar Sheikh v. Soleman Bibi, [1976(2) SCC 142] has held as below :-
"15. While it is true that `undue influence', `fraud', `misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
21. In this case the plaintiffs have alleged fraud played on defendant No.4 by defendants 1 to 3. The plaint does not disclose the particulars of fraud. All that has been pleaded is found in para 6 of the plaint, which is extracted as below :
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"The defendants nos. 1 to 3 are shrewd, cunning and scheming persons. The first and the second defendants were out family Doctors. It appears that the defendant Nos. 1 to 3 have exercised undue influence on my husband, the fourth defendant, practiced fraud upon him making false representations and got his signature on blank stamp papers and created false and bogus agreements of sale, and the sale deeds with an oblique motive to grab the properties of family of the plaintiffs and the fourth defendant as shown below."
22. The pleading as extracted above is not in conformity with Order VI Rule 4 of C.P.C. Particulars are not forthcoming.
23. The finding of the trial Court is that defendants 1 to 3 are Doctors and that defendant No.4 was going to their hospital for taking treatment. The defendants 1 to 3 being the family Doctors used undue influence on defendant No.4 and got the signature of defendant No.4 on blank stamp papers and created false and bogus agreements of sale and sale deeds. This finding of the trial Court is without any evidence on record. It is just a presumption of the trial Judge.
24. If the entire evidence is now perused to see whether there is any material to come to conclusion that : 29 : defendants 1 to 3 misused their position being Doctors and obtained sale deeds from defendant No.4, it has to be stated that there is no such evidence at all. Rather what is found is clear collusion between defendant No.4 and the plaintiffs. If at all defendants 1 to 3 exerted undue influence on defendant No.4 to get the sale deeds, it was defendant No.4, who should have filed a suit seeking cancellation of the sale deeds. The plaintiffs cannot speak on behalf of defendant No.4. The very fact that defendant No.4 did not contest the suit shows very clearly that there was collusion between him and the plaintiffs.
25. The evidence on record shows that the plaintiffs were very much aware of the agreements of sale and the sale deeds executed by defendant No.4. P.W.1 has made feign attempt by stating that she started residing at Bailhongal after coming to know that her husband executed documents in favour of defendants 1 to 3 and even she has deposed so in the cross-examination. But, this answer of P.W.1 cannot be believed. It has been elicited from D.W.1 during his cross-examination that in the month of September 1988 the sale negotiations took place and at that time himself, his : 30 : wife, defendant No.4 and plaintiff No.2 (P.W.1) were present. He has further stated that at that time defendant No.4 told that he would sell the entire suit property in three different portions for different considerations. D.W.1 again stated that when the sale negotiation took place for the second time, the very same persons who were present for the first time were present. So this answer of D.W.1 in the cross-examination shows the presence of P.W.1 during all the negotiations. There is no reason to discard the answer of D.W.1. Further P.W.1 in para 23 of her cross-examination has stated that her husband i.e., defendant No.4 told her that the defendants 1 to 3 obtained his signatures on sale deeds (khareedi kagada), that he revealed this matter about three years before filing the suit, that her husband did not tell her how many signatures he made, that she did not further enquire as to who were all the witnesses to those transactions and that how much money her husband received and how he spent that amount. So from these answers of P.W.1, it can be inferred that she was very much aware of these transactions and if really fraud had been played on her husband or he was subjected to some kind of force or compulsion, she could have asked her husband to : 31 : take action immediately. No action was taken till 1995. It is opt to mention here one line of argument of appellant's counsel that if really defendants 1 to 3 wanted to defraud defendant No.4 by obtaining signature on blank papers, they would have created only one document. There was no need for them to enter into three agreements followed by execution of three sale deeds. This argument has considerable force and indicates genuineness in the transactions. The trial Court has not considered this aspect of the matter.
26. If it is examined whether defendant No.4 had a sound state of disposition at the time of transactions, another answer of P.W.1 makes it very clear that her husband had sound state of mind. She has also stated her husband was not wise enough to understand the state of affairs (vyavahara jnana). This answer cannot be believed because she has clearly answered that it was her husband alone who was managing the entire affairs of the family including raising of loan from the Bank and letting out portion of the property to a tenant by name Shreykar. If according to P.W.1 her husband was not worldly wise to manage the family affairs, she would not have allowed her : 32 : husband to raise loan or let out the property. The evidence of D.Ws.2 and 3 assumes relevance here. D.W.2 has clearly stated that defendant No.4 purchased the bond paper required for preparing the sale deeds and that D.W.3 has stated that D.W.4 gave instructions for preparing the sale deed. So whatever she has stated that her husband was not worldly wise can be concluded to be a self-serving testimony.
27. The plaintiffs have also made another allegation that the sale deed executed by defendant No.4 in favour of defendants 1 to 3 was without consideration, probably, a ground to prove that the latter used force on the former to obtain sale deed. But D.W.3, an attestor to Ex.D-3, has clearly stated that on 29.12.1988, defendant No.4 gave instructions to the deed writer, Balakrishna Kekare, to prepare the sale deed, and that the defendant No.1 gave advance amount to defendant No.4 in his presence. Then defendant No.1 told that he would pay the balance amount at the time of registration.
28. D.W.3 has also deposed that on the next day at about 10.00 a.m. they all went to the office of Sub-Registrar, and at the time of registration the defendant No.1 made : 33 : payment of balance of Rs.28,000/- to defendant No.4. It is another clear answer of D.W.3 that when the defendant No.4 executed the sale deed, he did not find defendant No.4 being under force or influence of anyone. So the evidence of D.W.3 falsifies the plea of the plaintiffs that the sale deeds were not supported by consideration. This being the evidence, the learned trial Judge should not have come to a conclusion straight away that defendants 1 to 3 influenced defendant No.4 just because they were Doctors. Especially when allegations of fraud or undue influence are made, the party making such allegations must plead very particularly as to how fraud or undue influence was practiced and prove it. Making vague allegations do not suffice the requirement. Therefore, the finding of the First Appellate Court in this regard cannot be sustained. Point No.2 is answered in negative.
POINT NO.3 :-
29. The trial Court has held that defendants 1 to 3 should have obtained permission of the Court before they purchased the property from defendant No.4 as minors' interest was involved. Probably, the trial Court came to such : 34 : erroneous conclusion being mislead by the questions that were put to D.W.1 during his cross-examination. The learned counsel who conducted the case on behalf of the plaintiffs questioned D.W.1 whether he had obtained permission of competent authority for purchasing the property belonging to the minors or where minor's interest is involved. This is a misleading question. The natural guardian of the minor, according to Section 8(2) of the Hindu Minority and Guardianships Act, 1956 (for short, 'the Act') has to obtain prior permission from the Court before selling or creating any kind of encumbrance.
30. Permission under Section 8(2) of the Act is necessary in case of where definite property of the minor is sought to be sold or alienated. But, when the minor's interest is fluctuating or the interest of the minor is indefinite, permission as contemplated under Section 8(2) of the Act is not necessary. In this case, the suit property belonged to the joint family. The daughters of defendant No.4 as on the date of sale transaction were not co-parceners according to the law that prevailed at that time. Only interest involved was that of the son of defendant No.4. It was also : 35 : indefinite. Section 29 of the Guardians and Wards Act is also not applicable to the present situation. Therefore, the permission was absolutely not necessary. Moreover, alienation made by defendant No.4 being the Karta of the family was for legal necessity as has been held while discussing point No.1. This being the position of law, the trial Court should not have held that permission was necessary. This finding of the trial Court is also not sustainable, and therefore, point No.3 is held in negative. POINT NO. 4 :-
31. Discussion on points No.1 to 3 makes it very clear that the trial Court has not appreciated the evidence properly nor has it applied the law correctly. The judgment suffers from erroneous findings. Therefore, the said judgment of the trial Court needs to be set aside. Hence, the following :
ORDER i. Appeal is allowed with cost.
ii. The judgment dated 31.01.2005 on the file of Addl. Civil Judge (Sr. Dn.), Belagavi, in : 36 : O.S. No.45/1994 is set aside. Suit is dismissed.
Sd/-
JUDGE yan/hnm