Andhra HC (Pre-Telangana)
Patamata Seshagiri Rao vs Pamidimukkala Sree Ramachandra Rao And ... on 3 December, 1998
Equivalent citations: 1999(1)ALD333, 1999(1)ALT374
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
JUDGMENT
1. Heard the learned Counsel on both sides.
2. The unsuccessful plaintiff in the suit is the appellant. During the pendency of this appeal, the sole appellant-plaintiff died and his legal representatives are brought on record as appellants 2 and 3.
3. The appeal arises out of a suit for partition of the plaint schedule property consisting of two items i.e., item No.1 comprises an extent of 84-1/2 sq.yards of site with a thatched house therein and item No.2 comprises of 253-1/2 sq. yards of site with a zinc sheet shed therein. It may be mentioned that both these items are part of a total extent of 338 sq. yards of site. Defendants 2 to 6 are the sisters of the plaintiff. The first defendant is the husband of the second defendant. It is not in dispute that the total extent of 338 sq. yards of site originally belonged to Gireyya, the paternal grand father of the plaintiff who had four sons including the plaintiffs father China Raghavulu. In a partition between China Raghavulu and his three brothers effected prior to 1951, China Raghavulu got for his share 84-1/2 sq. yards which is shown as Item No.l of the plaint schedule property. China Raghavulu purchased the shares of his three brothers also subsequently. Item No.2 of the plaint schedule represents the three shares of the brothers which were so purchased by China Raghavulu. Thus China Raghavulu became the owner of the entire extent of 338 sq. yards. China Raghavulu died intestate on 21-7-1975 leaving behind surviving the plaintiff who is his only son and defendants 2 to 6 who are the daughters. According to the plaintiff, the suit property is the joint family property of himself and his father and as such he is entitled to a half share in the same by birth and on the death of his father he became entitled to l/6th share in the half share held by his father. Thus, according to the plaintiff, he is entitled in all to a 7/12 share in the suit property.
4. Defendants 3 to 6 did not contest the suit and they remained ex parte. Defendants 1 and 2 filed a written statement contending that the suit property is the self-acquired property of China Raghavulu and that China Raghavulu sold the suit property to defendants 1 and 2 under a registered sale-deed dated 19-6-1973 (the registration of which is marked as Ex.A2 in the case) for discharge of antecedent debts and the plaintiff is, therefore, not entitled to any rights in the suit property. A further plea is taken by them that the suit filed for partition without seeking the relief of cancellation of the sale-deed dated 19-6-1973 is not maintainable and it is also barred by limitation. The 6th defendant filed a separate written statement supporting the case of the defendants 1 and 2. The plaintiff, however, sought to question the validity of the sale-deed dated 19-6-1973 on the ground that the same was obtained by defendants 1 and 2 by exercising undue influence and fraud on China Raghavulu and that the same is not supported by consideration.
5. After framing appropriate issues, the trial Court dismissed the suit holding that the suit property is neither joint family property nor joint property as claimed by the plaintiff, that the sale-deed dated 19-6-1973 executed by China Raghavulu in favour of defendants 1 and 2 is perfectly valid and binding on the plaintiff and that he has no right to question the same. The lower Court also held that the suit is barred by limitation.
6. In this appeal, the learned Counsel for the plaintiff-appellant sought to assail all the findings of the lower Court, The first question which arises for consideration is whether the suit property is the joint family property or the self-acquired property of China Raghavulu.
earlier. Item No.l of the plaint schedule admittedly is the property which fell to China Raghavulu's share in the sail partition. It does not, therefore, admit of any doubt that Item No.l is the ancestral joint family properly. The learned Counsel for defendants 1 and 2, however, contends that the suit property was the self-acquired property of Gireyya. There is no reliable evidence to show that the suit property was the self-acquired property of Gireyya as contended by the learned Counsel for the respondents. The fifth defendant, who is examined as PW3 in the suit, no doubt, stated in her evidence that her grand father purchased the property from Dhulipala Rathaiah under a registered document. Merely because the property was purchased by Gireyya, it does not follow that it was his self-acquired property in the absence of any evidence with regard to the source of acquisition and the nature of enjoyment and treatment of the property. 1 have, therefore, no hesitation in holding that Item No. 1 of the plaint schedule is joint family property.
8. So far as Item No.2 is concerned, admittedly the same was purchased by China Raghavulu from his brothers. Though the plaintiff claims that the said purchase was made by China Raghavulu with the income derived from Item No.l and also with the amounts contributed by the plaintiff from his earnings, there is no acceptable evidence in proof of the same except the ipsi dixit of the plaintiff. Item No.l is a meagre extent of 84-1/2 sq. yards of site with a thatched house therein. In the very nature of things, it is not capable of fetching any appreciable income. It appears that China Raghavulu and his family members were living in the same and, therefore, the possibility of deriving any income out of the same is very remote. At any rate, it is highly improbable that the meagre income, if any from Item No.l would have facilitated the acquisition of Item No.2. There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. The plaintiff failed to discharge the said burden which lies on him. Admittedly China Raghavulu has been plying a taxi from which he was earning money. It is the admitted case that the plaintiff had some differences with China Raghavulu and he was, therefore, living separately. Under these circumstances, it is improbable that the plaintiff would have contributed money to China Raghavulu for the acquisition of Item No.2. Further the plaintiff was quite young at that time. At any rate, there is absolutely no reliable evidence to substantiate the claim of the plaintiff that he was sending money to his father periodically from his own earnings. Apart from his own evidence, the other evidence adduced by the plaintiff on his side is the oral evidence of defendants 3 and 5 who were examined as PWs. 2 and 3. Their oral evidence also, besides being interested evidence, does not throw much light on this aspect of the case. I do not, therefore, find any valid grounds to disagree with the finding of the lower Court that Item No.2 of the plaint schedule is the self-acquired property of China Raghavulu.
9. The next question for consideration is whether Ex.A2 sale-deed dated 19-6-1973 under which China Raghavulu sold the suit property to defendants 1 and 2 is valid and binding on the plaintiff. The sale-deed is sought to be impeached by the plaintiff on the ground that it was obtained by defendants 1 and 2 by undue influence and fraud and that the sale is not justified by any legal necessity so as to bind the plaintiff. It is also contended that the sale-deed is not duly proved inasmuch as the original of the sale-deed was not produced by defendants 1 and 2 and the scribe or the attestors have not been examined. It is also contended by the learned Counsel for the plaintiff-appellant that China Raghavulu was a signatory but the sale-deed contains only a thumb mark. It is further contended that the sale-deed is not supported by consideration and the alleged pronote debt covered by Ex.B7 is a bogus debt, and no one connected vviih the same has been examined. As regards the question of proof of the sale-deed is concerned, in the plaint the plaintiff has not denied or disputed the execution of the said sale-deed by China Raghavulu. It is categorically stated in the plaint that the plaintiff came to know in the month of March, 1980 that defendants 1 and 2 obtained a sale-deed on 19-6-1973 from the father of the plaintiff for the entire plaint schedule property taking advantage of his old age, perturbed mind and feeble condition. It is further stated that the sale-deed dated 19-6-1973 is a sham, collusive and void document and defendants 1 and 2 obtained the sale-deed by playing fraud and undue influence on the father of the plaintiff ignoring the rights of the plaintiff in the plaint schedule property. Thus the plaintiff did not dispute the execution of the sale-deed by China Raghavulu nor did he dispute the genuineness of the thumb marks. This objection was also not raised in the lower Court. I do not, therefore, find any substance in the same.
10. So far as the plea that the sale-deed is obtained by undue influence and fraud is concerned, the burden of establishing the same lies heavily on the plaintiff and the plaintiff miserably failed to discharge the burden which lies on him. There is practically no evidence on record to substantiate that plea except the interested oral evidence of the plaintiff himself as PW1. Even PWs.2 and 3 have not spoken about any fraud or undue influence exercised by defendants 1 and 2 on China Raghavulu. On the other hand, it is the admitted case that neither the plaintiff nor defendants 3 to 6 ever looked after China Raghavulu in his old age and it was only defendants 1 and 2 that looked after him. The recitals in Ex.A2 reveal that the suit property was mortgaged to Bank of Baroda and that the said debt was outstanding and there was also a pronote debt due to one Vengala Subba Rao and that China Raghavulu, being unable to discharge the said debts, sold the suit property to defendants 1 and 2 directing them to discharge those debts. The sale-deed is executed for a total consideration of Rs.5,200/-. Subsequently the first defendant discharged the debt due to the Bank by payinga sum of Rs.5,500/- under Exs. B3, B4 and B5. He also discharged the debt due under the promissory note marked as Ex.B7. The plaintiff does not dispute the debt due to the Bank. He, however, claims that the debt was discharged by China Raghavulu himself and not by the first defendant. This contention of the plaintiff is, however, belied by Exs.B3, B4 and B5 which clearly show that the amounts thereunder were paid by the first defendant only but not by China Raghavulu. The learned Counsel for the plaintiff contended that the first defendant might have paid those amounts on behalf of China Raghavulu only as his agent. It is difficult to accept this submission. In the first place, it is improbable and unlikely that China Raghavulu, having already executed the sale-deed in favour of defendants 1 and 2 directing them to discharge the debts, would have paid any amounts to the Bank for the discharge of the said debts. Further admittedly by that date China Raghavulu was advanced in age and he had no means to pay any money to the Bank. Under Ex.B3, the first defendant paid a sum of Rs.4,000/- to the Bank of Baroda on 12-7-1974. Under Ex.B4, the first defendant paid a sum of Rs.1,000/- to the Bank by means of a cheque dated 27-8-1973. Under Ex.B5, the first defendant paid a sum of Rs.500/- by means of a demand draft dated 20-6-1993. Thus in all he paid a total sum of Rs.5,500/- which is more than the sale consideration stipulated under Ex.A2. Even is we eschew from consideration the pronote debt covered by Ex.B7, which is also discharged by the first defendant, it is clearly established from Exs.B3 to B5 that the sale-deed is fully supported by consideration.
11. It now remains to be seen whether the sale-deed is valid and binding on the plaintiff. It is the settled position that under Hindu Law the father has special powers of alienating coparcenary property which no other coparcener has. In the exercise of the said power, he may sell or mortgage the joint family property, whether moveable or immoveable, including the interests of his sons for the payment of his own debt, provided it was an antecedent debt and was not incurred for immoral or illegal purposes. It is not the case of the plaintiff that the debt due to the Bank of Baroda is tainted by any illegality or immorality. On the other hand, it is his specific case that the said debt was contracted by him and his father jointly for family necessity. It, therefore, follows that even assuming that the entire suit property is joint family property, the sale of the same by the father to defendants 1 and 2 for the discharge of the said debt is perfectly valid and binding on the plaintiff. So, viewed from any angle, the plaintiff is not entitled to question the said sale.
12. The contention that the sale-deed dated 19-6-1973 is a sham, nominal and collusive document is absolutely without any substance. The evidence on record unmistakably shows that the sale-deed was acted upon and the property was also mutated in the name of the vendees in the municipal records and they have been paying all the taxes to the Municipality ever since. It also appears that after obtaining the permission from the Municipality, defendants I and 2 have constructed a pucca building also in the place of the thatched shed and zinc-sheet shed which were there earlier.
13. The learned Counsel for the plaintiff-appellant has finally submitted that the lower Court erred in holding that the suit filed for partition without a prayer for cancellation of the sale-deed is not maintainable and that the suit is also barred by limitation inasmuch as it was not filed within three years from the date of the alienation. I find force in this submission. As the plaintiff is not eo nomine a party to the sale-deed, it is not necessary for him to pray for cancellation of the sale-deed and it is open for him to question the validity and binding nature of the sale-deed. In Ramaswami v. Rangachariar, AIR 1940 Mad. 113, a Full Bench of the Madras High Court held that in respect of alienations by the father to which the minor son was not eo nomine a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation. The Full Bench referred to in this context the following observations made in Unni v. Kunchi Amma, (1891) 14 Mad 26:
"If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it, to sue to set it aside, for it cannot be used against them. They may treat it as nonexistent and sue for their right as if it did not exist."
The same principle has been laid down in Bijoy Gopal v. Krishna Mahishi Debi, (1907) 34 Cal 32 = 34 IA 87, regarding the alienations made by the widow of the last male owner which are sought to be impeached by the reversioners as not binding on them. It, therefore, follows that it was not necessary for the plaintiff to pray for cancellation or for setting aside the sale-deed. In this view of the matter, the question of limitation also does not arise. However, this would not make any difference so far as the ultimate result is concerned.
14. For all the aforesaid reasons, the plaintiff-appellant is not entitled to any relief.
The appeal thus fails and it is accordingly dismissed. But there will be no order as to costs.