Madras High Court
A.R. Deivasigamani Mudaliar vs T.N. Somasundaram Nadar on 11 March, 1997
Equivalent citations: (1997)2MLJ353
JUDGMENT K. Govindarajan, J.
1. The plaintiff who failed before the trial court is the appellant in the above appeal. The second defendant is the father of the plaintiff and the third defendant is the mother of the plaintiff. The first defendant is the purchaser of the suit property under the sale deed dated 11.6.1956 which is sought to be cancelled in the suit. According to the plaintiff the suit property originally belonged to late V. Arumuga Mudaliar, the father of the second defendant and paternal grandfather of the plaintiff. He died on 2.8.1953 leaving his widow Kuppammal, the second defendant and the grandson, the plaintiff. On his death, the plaintiff and the second defendant became entitled to the suit property and the said Kuppammal became entitled to the right of maintenance. Under a release deed dated 5.9.1953, the second defendant released and extinguished all his rights in favour of the plaintiff. So the plaintiff has become absolute owner of the suit property subject to the liability of maintaining the said Kuppammal who died in the year 1960. The grandfather of the plaintiff borrowed a sum of Rs. 1,500 from the first defendant and executed a deed of simple mortgage on 5.5.1953. The second defendant was also a party to the document. There were litigations between the plaintiff family and the first defendant. Ultimately the defendants 2 and 3 collu-sively and fraudulently executed a sale deed dated 11.6.1956 with respect to the suit property for a sum of Rs. 14,000 in favour of the first defendant, though the property was fetching easily more than Rs. 35,000 that too without any legal necessity. The said sale is a mala fide, fraudulent, collusive, illegal, unenforceable and void transaction and not binding on the plaintiff. So, the plaintiff has filed the suit for cancellation of the said sale deed dated 11.6.1956. The defendants 2 and 3 remained absent and were set exparte. The first defendant filed his written statement. His main contention is that the suit is not maintainable and the suit is barred by limitation and barred by resjudicata. To avoid the decree obtained by one Venkanna Choudhary in O.S. No. 1667 of 1950, a false and frivolous document was executed by the second defendant in favour of the plaintiff, when he was minor. Finding that the property could not be saved from the creditors, Arumugha Mudaliar agreed to sell the property with a view to benefit the minor and sold the suit property to the first defendant on 11.6,1956. The debt is not immoral or avyavaharika as stated by the plaintiff. The sale is a genuine transaction and having secured the benefit to the minor and having accepted the same throughout it will not be open to the plaintiff on his attaining majority to give a go-by to the same. The parties have taken the other usual pleas which I will consider if it becomes necessary in the course of the judgment.
2. On the above relevant pleas, the following issues were framed for trial:
(1) Whether the sale in favour of the first defendant is vitiated by fraud and collusion?
(2) Are the debts referred to in the sale deed in favour of the plaintiff avyavaharika in nature?
(3) Is the suit barred by resjudicata?
(4) Is the plaintiff entitled to question the sale alter accepting the benefits conferred upon him?
(5) Whether the plaintiff is entitled to mesne profits? If so, at what rate?
(6) To what reliefs?
3. Originally the trial court by its judgment dated 3.10.1973 found that the plaintiff is not entitled to claim any relief and dismissed the suit. Aggrieved against that judgment and decree, the plaintiff filed an appeal in A.S. No. 74 of 1974. This Court in the order dated 13.11.1979 set aside the judgment and decree of the trial court dated 3.10.1973 and remanded the matter for fresh disposal after framing of the additional issues. After remand, the following additional issues were framed:
(1) Whether the suit property is a joint family property of the second defendant?
(2) Whether the sale deed dated 11.6.1956 is binding on the plaintiff and if so to what extent?
4. The trial Judge came to the conclusion that the plaintiff is not entitled to question the sale deed after accepting the benefits conferred upon him, that the first defendant failed to establish that the suit is barred by res judicata, that the debts mentioned in the sale deed are not avyavaharika in nature, and that the property can be treated only as joint family property belonging to the plaintiff and the second defendant.
5. Before dealing with the respective submissions of the respective counsel, I feel it is necessary to point out the following facts regarding which there is no dispute as they are borne out by records. Arumugha Mudaliar purchased the suit property under Ex. B-1, dated 24.3.1933. On 27.7.1941, he alone with the second defendant created simple mortgage in favour of A.S. Acharya, for a sum of Rs. 1,500. Again on 12.1.1944. Arumugha Mudaliar created another simple mortgage in favour of the same A.S. Acharya. Under Ex. B-2, The Mambalam Co-operative Society Limited sold an extent of half ground in favour of Arumugha Mudaliar. Under Ex. B-3 dated 3.11.1949 Arumugha Mudaliar mortgaged the property to Ramanatha Iyer. Under Ex. B-4, dated 24.8.1951 one Venkanna Chowdury got a decree against the said Arumugha Mudaliar, and the second defendant ir O.S. No. 1667 of 1950, on the basis of a promissory not executed on 30.6.1959. Ex. B-5, dated 5.12.1952 shows that Arumugha Mudaliar took loan from the Mambalam Co-operative Society Limited for a sum of Rs. 500. 500, and 1,000 on three occasions by pledging the suit property and the loan was finally discharged. According to Ex. B-6, dated 7.4.1951 the said Venkanna Chowdury assigned the decree in O.S. No. 1693 of 1951 against Arumugha Mudaliar and Raju Rathina Mudaliar for the amounts received from the first defendant therein. On 5.5.1953 under Ex. B-7 Arumugha Mudaliar and the second defendant executed a mortgage deed with respect to the suit property in favour of the first defendant receiving a sum of Rs. 1,500. On 2.8.1953 Arumugha Mudaliar died leaving his widow and the second defendant as his legal heirs. After the death of his father, under Ex. A-1, the second defendant executed a release deed in favour of the plaintiff showing the third defendant as guardian to the plaintiff. Under Ex. B-8 dated 9.6.1954 Murry and Company issued a notice to the second defendant and his mother that they are going to advertise and sell the suit property as instructed by T.Ramanatha Iyer, in public auction. Ex. A-2 is the advertisement of Murray & Company fixing the date as 6.8.1954 for sale. It is stated in the said notice that the auction sale was under the instruction from T. Ramanatha Iyer at the risk of Arumugha Mudaliar, the 2nd defendant and Kuppammal. The said notice was only to recover the amount paid on mortgage as stated above. On 15.8.1954 the third defendant issued notice on behalf of the plaintiff to the first defendant. The first defendant under Ex. B-10 issued reply through his advocate stating that he is not liable to pay the rent nor vacate the premises. It seems that Kuppammal, the mother of the second defendant filed a petition in E.A. No. 1410 of 1955 in E.P. No. 197 of 1954 in O.S. No. 1667 of 1950 on the file of the City Civil Court, Madras seeking to stay the sale and on 4.10.1955 as marked Ex. B-11, the petition was dismissed. In the said order it is held as follows:
The petitioner contends that her son who is the 2nd defendant in the suit, has released the suit property in favour of his minor son. The said release deed has not been produced into court. Further the 2nd defendant is bound by the decree as the alleged transfer is made by means of a release deed in favour of his own minor son and that too after the decree in the suit. Hence the contention of the respondent that he held a release deed as a colourable transaction is true.
It is relevant to mention that the third defendant as a guardian of the plaintiff filed another application in E.A. No. 1708 of 1955 in Execution Petition No. 197 of 1954. In the claim petition, the plaintiff herein through his mother claimed that his father was living separately and released his rights by a deed dated 5.9.1953 and ever since the release deed, the claim petitioner, namely, the plaintiff is in possession of the suit property and so the decree passed would not bind him, as the debt was an avyavaharika. In the order dated 23.11.1955 the City Civil Court, Madras marked as Ex. B-12 has held the claim petitioner has not proved by any reliable evidence that he is living separately from his father and there is no evidence adduced to prove that he is in possession of the property and there is no evidence to prove that the debt is an avyavaharika debt. On the basis of the abovesaid finding, the claim petition was rejected and it had become final. Subsequently, under Ex. B-13, the second defendant, his mother Kuppammal and the plaintiff through his mother and guardian entered into an agreement on 4.2.1956 with the first defendant agreeing to sell the suit property in favour of the 1st defendant. The sale price was fixed at Rs. 14,000 and a sum of Rs. 100 was paid as advance. The balance should be retained by the first defendant for the payment of amounts due under three mortgages created over the property and for payment towards the decree in O.S. No. 1667 of 1950. It was agreed between the partiesthat the first defendant shall pay the amounts to the vendors at the time of registration of sale deed if any surplus amount was available. It is also relevant to mention here that the first defendant filed the suit O.S. No. 892 of 1955 on the file of the City Civil Court, Madras for recovery of possession from the second defendant herein, his mother and the plaintiff representing through his mother as shown in Ex. B-14. The suit was decree on 6.3.1956. The said suit was filed on 12.5.1955. Ex. B-15 shows that the property was brought to sale by the first defendant as assignee of the decree. On 4.6.1956 a sale deed Ex. B-18 was executed in favour of the plaintiff represented by his guardian the third defendant, transferring the property bearing door No. 10, Tukkaram, Street, T.Nagar, Madras-17. According to the first defendant, the plaintiff is living in the said property after constructing a house. Ex. B-18 shows the consideration of Rs. 1,275 was paid by the first defendant. It can be seen from Ex. B-19 that the third defendant as a guardian of the plaintiff had drawn amounts from the Savings Bank Account in the Indo Commercial Bank, Thyagarayanagar, Madras-17, out of the sum of Rs. 1,655 deposited for the purpose of constructing the building for the benefit of the plaintiff in the land purchased under Ex. B-18. It is also relevant to mention that Kuppammal died in 1960. On 6.9.1964 a memorandum of agreement was entered into between the first defendant on the one side and the second defendant and the plaintiff through his mother on the other side. The said document and marked as Ex. B-20. It is also stated that for the maintenance of the minor, they have received a sum of Rs. 4,500 payable to the minor. Similarly another memorandum of Agreement was executed between them under Ex. B-21 in which it is stated that a sum of Rs. 500 for the purpose of education and maintenance of the minor was paid to the minor.
6. The above surrounding circumstances would clearly establish that the plaintiff's father and his grand-father were in debts, the suit property was also subjected to encumbrances and to discharge the debts, the property was sold. On these backgrounds now I will proceed to discuss the matter with the submissions made by the learned Counsel for the appellant.
7. Mr. Santhanam, learned Counsel for the appellant, after taking me through the pleadings and the relevant evidence urged that the sale under Ex. B-17 dated 11.6.1956 in favour of the first defendant is void on the following grounds:
(1) while father was alive, mother cannot act as guardian;
(2) for want of Court's permission, to sell the minor's property;
(3) the property was not sold for legal necessity;
(4) as all payments mentioned under Ex. B-17 were not proved, it cannot be said that sale was supported by consideration;
(5) sale consideration mentioned in the document is inadequate and does not reflect correct value;
(6) there is no bonafide intention or action on the part of the defendant in getting the sale deed.
8. It is the admitted case that before execution of Ex. B-17 sale deed by the mother of the plaintiff, no permission was obtained from the court and the father was alive. Now the question remains whether the plaintiff can be allowed to avoid the sale on those grounds. Since the sale in question was before 5.8.1956, the provisions of the Guardians and Wards Act, 1890 (hereinafter referred to as the Act) would apply. Section 4(2) of the Act defines 'guardian' as follows:
"guardian" means a person having the care of the person of a minor or of his property or of both his person and property.
Section 27 of the Act deals with the duties of guardian of the minor's property as follows:
Duties of guardian of property: A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
9. Section 30 of the Act deals with voidability of transfer made in contravention of Section 28 or 29. No other provision deals with the sale similar to the facts of the present case. Even according to Section 30 of the Act, if no permission is obtained, the sale is only voidable at the instance of the minor.
10. In support of his submission, the learned Counsel for the appellant relied on the judgment reported in Prathuji Jain Temple and Ors. v. Harikrishrta and Ors. , In fact, in this judgment the permission was obtained under the Act, so, this judgment will not support the case of the appellent.
11. The learned Counsel for the appellant also relied on the judgment reported T.V. Duraiswami Naicker v. E. Balasubramanian . In this case, under a will, mother has appointed her brother as guardian for her minor son. Her sister sold the properties which was challenged by the minor after attaining the age of majority. So, this decision cannot be relied on by the appellant as it deals with only testamentary guardian, relying on Section 28 of the Act. In the case on hand, it cannot be said that the mother was the testamentary guardian. Per contra, the learned Counsel for the respondent has submitted that in the present case, the father was alive, and there is evidence to show that the mother was managing the affairs of the minor throughout. Even according to the plaintiff, he was not residing with his father. Exs. B-10, B-12, B-14, A-1, B-16, B-19, B-20 to B-22 will clearly prove that the mother, the third defendant alone had acted as guardian for the minor and delay with the affairs of the minor. In the particular circumstances of this case, the mother can be considered to be the natural guardian of the plaintiff. In support of his submission, the learned Counsel for the respondent has also relied on the decision reported in Jijabhai Vithalra O'Gajre v. Parthankhan , in which the Apex Court has held as follows:
It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular, circumstances of this case, the mother can be considered to be the natural guajd-ian of her minor daughter.
12. The learned Counsel for the respondent has further relied on the decision reported in Gangoji Rao v. H.K. Chinnappa and Ors. A.I.R. 1983 Karn. 222, in which the learned Judge has held that the mother was managing the family property being a natural guardian and she can validly sell the property of the minor for family necessity or benefit without obtaining permission of the court. Even in the judgment reported in Mayilswami Gounder v. Kallammal and Ors. (1969) 1 M.L.J. 177, the learned Judge of this Court has held that both the father and the mother are natural guardian of their minor children and only if contest arose as between the father and mother as to who should be the guardian of the minor, then it would be the father who would be the guardian. In the present case, the father himself had ratified the action of the mother acting as guardian. So, it is fairly clear that the challenge made by the plaintiff that the sale was illegal for want of permission from the court cannot be accepted.
13. The learned Counsel for the appellant next submitted that while a father is alive, the mother cannot act as a guardian and the execution of sale deed by her cannot be enforced in law. In support of the said submission, the learned Counsel for the appellant cited a number of decisions. Before dealing with those decisions, I feel it is necessary to deal with the facts relating to the said issue. It cannot be denied that the mother had acted as guardian of the plaintiff on so many occasions and no single occasion has been cited before me that the father has acted as guardian to the plaintiff. Under Ex. B-10, the notice issued on behalf of the minor, the mother has acted as guardian. Again in the claim petition, which has been marked as Ex. B-12, the mother had filed the same on behalf of the plaintiff, though the father, the second defendant was also a party to the said proceedings. Ex. B-14 shows that the third defendant, mother has acted as guardian to the plaintiff in the suit filed by the first defendant in O.S. No. 892 of 1955, in which the father, the second defendant/second respondent herein is a party to the proceedings and no objection was raised by him. Even in Ex. A-1 release deed, the father himself has appointed the mother as a guardian of the plaintiff. Again, Ex. B-13, B-19 to B-22 will show that the mother alone has acted as a guardian of the plaintiff, though the father was a party to those documents. It is also relevant to mention that neither in the plaint nor in the evidence the plaintiff has stated anything against his mother and it is not the case of the plaintiff that the mother had acted against his interest. In paragraphs 11 and 12 of the plaint it is stated that the third defendant, mother, is an illiterate, backward and old fashioned woman and she had no capacity to understand the nature and scope of the transaction. To prove the same, the plaintiff has not examined his mother, the third defendant. Since the father himself has permitted the mother to act as a guardian in all the occasion, now the plaintiff cannot be allowed to say that the mother cannot act as a guardian. Even the father, who was a party to all those documents, had not stated against his wife as guardian of the minor.
14. The learned Counsel for the appellant has also relied on the decisions reported in Sundaramoorthy v. Shanmugha Nadar (1980) 1 M.L.J. 486, Dhanasekaran v. Manoranjithammal, (1991) 2 L.W. 635 : (1983) 1 M.L.J. 366. All those decisions cannot be made applicable to the facts of the present case as the said decisions had delay with the sale executed after 1956 Act. The learned Counsel for the appellant further referred to the decision reported in 1980 L.W. 13 and, in the said decision, the learned Judge has held that the father of the minor was alive, but another person claims to be a de facto guardian, and that absolutely there was no piece of evidence to show that he had acted as a guardian of the minor. On the basis of the above, the learned Judge found that the impugned transaction cannot be valid. But, in the present case, the facts are different. As mentioned earlier, the mother alone had acted as a guardian in all the transactions.
15. The learned Counsel for the appellant has further relied on the decision reported in Ponnammal v. Gomathi Animal A.I.R. 1936 Mad. 884. In this decision, the question was whether the alienation is by a guardian who is neither de facto nor de jure. In that case the person who acted as a guardian was de jure guardian and not the natural guardian. So, that the facts of that case is different and the said decision cannot be made applicable to the facts of the present case.
16. Per contra, the learned Counsel for the respondent has cited the decision reported in Mayilswami Chettiar v. Kaliammal and Ors. (1969) 1 M.L.J. 177 in which the learned Judge has held that the mother can act as a de facto guardian of the minors and alienate their property for necessity. In that case, the father has attested the mortgage deed and the management of the property had been all along with the mother. In those circumstances it was held that the alienation by the de facto guardian would be valid. This decision will directly apply to the facts of the present case. Then the learned Counsel for the respondent cited the decision reported Gopalakrishnan v. Venugopal (1976) 2 M.L.J. 134. The Division Bench of this Court has held that if the debts are incurred for paying and if the sale was pay off debts already in existence, then it will be normally understood at an occasion in which an antecedent debt is being discharged. The challenges made by the minor in the matter of alienations or borrowings made by their elders involving their father cannot lightly be accepted by Courts, unless the facts in each of the cases do satisfy the norms laid down by the various decisions cited in that judgment. Ultimately the learned Judge has found that the suit filed by the minor was only at the instigation of the parents and on that basis held that the alienations are valid. The learned Counsel for the respondent would further rely on the decision reported in Pattammal v. Nagarajan (1977) 2 M.L.J. 296, in which the Division Bench of this Court has held as follows:
In order to pay off such a debt which is popularly known as antecedent debt, the father sells the property a few months later. The complaint is that there was no pressure from the mortgagee. It is not always such pressure from the creditor which might compel a debtor to sell a property in order to pay off a mortgage debt on it. There are mired ways which might prompt a debtor to sell away the property in order to pay off the mortgage debt. One purpose is to avoid paying interest and secondly, there may be circumstances, such as in other means by which the mortgage debt could be paid off. We are not enumerating all such circumstances. Suffice it, however, to say that if one or more of such circumstances could prompt a reasonable person to sell a property in order to pay off an antecedent debt, then obviously, there is legal necessity for such sale. It is in such circumstances that the second defendant thought of selling the property. We are unable to agree with Mr. Alagar that there was no legal necessity to sell the entirety of the property. It is a small shop of an extent of 13' × 27'. It cannot be truncated for any purpose or divided so as to sell it piecemeal in order to discharge an antecedent debt. It is an indivisible property subject to a mortgage and in the absence of other means by which the mortgage could be paid off, we are of the view that the only way in which such a debt could be discharged was by the sale of the property. This was thought of by the father and therefore, cannot be questioned by the sons In another decision reported in Kesavalu Naidu v. Nagarathnam , a Division Bench of this Court has held as follows:
In our opinion whether in such a case the sale could be said to be for necessity would spend upon not merely whether there was pressure on the estate but whether there were other circumstances present which showed that though there was no immediate pressure for repayment there were no other means or pay of paying off the antecedent debt. We think also that in such circumstances it is not necessary for the sale to be binding that the purchaser should show that there was no alternative for the vendor but perforce to sell the property. Even that extreme test appears to be satisfied in the present case. In the present case, the facts will satisfy the abovesaid requirements. From the above discussion, I find that there is no force in the submission of the learned Counsel for the appellant that the mother cannot act as a guardian when the father is alive.
17. The learned Counsel for the appellant has further submitted that the consideration mentioned in the document is inadequate and in the absence of any proof that the amounts mentioned in the sale deed has been paid, it should be construed that it is not supported by consideration at all. The learned Counsel for the appellant referred to paragraph 12 of the plaint in support of his contention. In plaint paragraph 12 it is stated that the suit property would fetch more than Rs. 35,000 at the time of sale. In support of that submission, P.W. 3 has been examined who deposed that the property is worth about Rs. 40,000. The trial court while dealing with this aspect disbelieved the evidence of P.W. 3 as he is not speaking the truth, I was no persuaded to take different view. So no reliance could be placed on his evidence.
18. Ex. B-17 speaks about the price of the property. Originally when the property was brought to sale since there was no purchasers, the reserve price was reduced to Rs. 5,500 subject to the mortgages mentioned therein. Even in the sale deed Ex. B-17, it is stated that the consideration of Rs. 14,000 is fair and proper. The learned Counsel for the appellant replied on Ex. A-5 to show that the suit property would fetch more price. The said document cannot be relied on as it is not proved by examining either to vendor or the purchaser or any party to the document. In support of his submission, the learned Counsel for the appellant cited the decision reported in Prasad v. Govindaswami Mudaliar. In that case, it was found that the sale deed executed was for the collateral purpose and worth a view to stave off creditors with the express understanding that the properties sold would be reconveyed to the vendors after the pressure of the creditors had subdued. On the basis of that finding the Apex Court held that the sale deed was not supported by adequate consideration. So, the learned Counsel for the appellant cannot rely on this decision in support of his case. The learned Counsel for the appellant has further relied on the decision reported in Samboornammal v. Asokan and 13 Ors. 1983 T.L.N.J. 61. This decision also will not held the appellant. In that case, evidence was not available whether the entire consideration was either paid to discharge the debts or for the benefit of the minor and on that basis the learned Judges held that the property was purchased for inadequate consideration. In view of the above discussions, I find that there is no force in the submission of the learned Counsel for the appellant that Ex. B-7 is not supported by sufficient consideration.
19. The learned Counsel for the appellant has also submitted that there is no necessity to sell the property. The facts already set out regarding the circumstances under which the family dealt with the property will clearly prove that there was a pressing necessity to sell the property. Even in Ex. B-12, the said contention has been raised, and the executing court rejected that contention in the order dated 23.11.1955 in E.A. No. 1708 of 1955. Even on an earlier occasion this Court while disposing of the appeal held as follows:
I am of the view that a major portion of the consideration had been utilised for the acquisition of the house site in the name of the plaintiff and for the subsequent construction of a building on the side. The trial court also held, on the basis of the evidence that apart from the amount utilised for the discharge of the debts, the balance amount has been utilised for the benefit of the minor.
So it cannot be said at this stage that the sale was effected without any necessity.
20. The learned Counsel for the appellant has further submitted that since there is a restriction under Ex. A-1, the mother cannot sell the property. But the facts set out earlier will clearly prove that this property was subjected to encumbrances and such restriction cannot be enforced legally and the plaintiff cannot rely on that restriction to contend that the sale even to discharge the said encumbrances is not valid. It is also submitted by the learned Counsel for the appellant that the first defendant has acted dishonestly with a view to get the sale in his favour. But there is no evidence available on record to support the said contention. On the other hand Ex. B-17 was executed on the basis of the earlier agreement between the parties with a view to discharge the debts. Taking legal action to recover the amount in the earlier suit cannot be construed as a pressure on the parties' to sell the property.
21. The learned Counsel for the appellant has further argued that the amounts mentioned in Ex. B-17 has not been paid as directed in the sale deed. It is not the case of the plaintiff that the creditors demanded the said amount from the plaintiff. There is no material available before the court to come to the conclusion that the first defendant has not discharged the obligations mentioned in the sale deed. In this case, as held earlier by this Court, the amounts have been utilised not only to discharge the debt but also for the benefit of the minor and having got the benefits, now the plaintiff cannot be allowed to challenge the same. In this context, I feel it necessary to cite the following passage from the decision reported in Santhana Venugopal Krishnan and Ors. v. K.V. Venugopal and Ors. (1976) 2 M.L.J. 134.
We may also in passing refer to the decided case making another general observation in cases like the one under consideration. It is the common feature in such cases that the father who is responsible for the litigation, who, though is living with the minor, keeps himself safely outside the witness box. He can easily be presumed to be a person who is encouraging this litigation as a sutradari. It would not be unreasonable to presume that the hand of the father is always there is this litigation and he just brings into the witness box his brother's sons, minor children and others so as to gamble in litigation, by challenging his own alienations through them." In the present case it cannot be said that the plaintiff has no obligation to discharge the debt. The sale deed contains the details about the payment of money and such payment has been proved under Exs. B-18 to B-21. The sale deed under which the property was purchased in favour of the plaintiff, utilising the money paid by the first defendant, has been marked in this case. Having enjoyed the benefits, the plaintiff cannot be allowed to say that the sale deed is not a valid one, at this stage.
22. This is one of the usual litigations filed by the minor children, challenging the sale made by the parents with the encouragement and active support of the parents. Admittedly, neither the mother nor the father went into the box in this case. In view of the above discussions, I accept the findings of the trial court, and this appeal has to be dismissed.
23. In the result, this appeal is dismissed. There will be no order as to costs.