Madras High Court
V. Nataraja Iyer And Ors. vs Arunachalam And Ors. on 28 January, 1976
Equivalent citations: (1976)2MLJ326
JUDGMENT N.S. Ramaswami, J.
1. These two appeals arise out of a suit for partition and separate possession, attacking the alienations made by the father of the plaintiffs. The five plaintiffs are the sons of Guruswami Iyer, the first defendant in the suit. Vembu Iyer, the second defendant, and Ayyasami Iyer, the third defendant, are the elder brothers of the first defendant and they are some of the alienees of the properties belonging to the family of the first defendant. It is common case that there had been an oral partition amongst the three brothers, namely the defendants 1 to 3, in 1943. It is also not in dispute that the first defendant and his five sons (the plaintiffs) constituted a Hindu joint family. It owned certain agricultural lands in Mayuram Taluk, Thanjavur District, to be specific in two villages, namely Melanallur and Arumozlhi Devan villages. It also owned two house properties and some lands in Tiruvannamalai. The properties situate in Tiruvannamalai are described as items 1 to 6 in the A schedule to the plaint while the lands in Mayuram taluk are described in the B schedule as items 1 to 37 thereof.
2. The first defendant started alienating the properties from 1945 onwards. The first of the alienations was under Exhibit B-1 dated 20th March, 1945. Under this document, the first defendant sold items 25 to 27 of the plaint B schedule to the second defendant for a sum of Rs. 1,700. Later there had been several alienations by the first defendant and all the alienees as well as the subsequent alienees have been made parties to the suit.
3. The plaintiffs claimed a 5/6th share in all the suit properties and according to them, none of the alienations was binding on them. Some of the alienees contested the suit and some did not.
4. The Court below held that all the suit properties are joint family properties and that all the alienations are fully supported by consideration; but the Court further held that certain alienations were not for binding purposes and that therefore the plaintiffs are entitled to their 5/6th share in the properties covered by those alienations. In respect of certain other alienations, the Court accepted the case of the alienees that the alienations were for binding purposes and dismissed the suit regarding the same. The suit had been filed in forma pauperis and the Court below has directed the plaintiffs to pay half the Court-fee 4ue on the plaint, the other half to be paid by the alienees who did not succeed in proving the binding nature of the alienations.
5. A.S. No. 498 of l969 is filed by defendants 25 to 28 who are the legal representatives of the second defendant (he having died during the pendency of the suit) challenging the decision of the Court below that the alienation under Exhibit B-1 conveying items 25 to 27 of plaint B Schedule is not binding on the plaintiffs. A.S. No. 536 of 1970 is filed by the plaintiffs against the dismissal of the suit in respect of four alienations, namely the one under Exhibit B-20, dated 5th January, 1954 conveying item No. 1 of plaint A schedule to the 10th defendant, that under Exhibit B-23 dated 10th July, 1953 conveying item No. 2 of plaint A schedule to the 9th defendant, that under Exhibit B-24 dated 21st January, 1947 conveying items 1 to 24 of plaint B schedule to the 4th defendant and the last under Exhibit B-l6 dated 26th June, 1957 conveying items 29 and 30 of plaint B schedule to the 12th defendant.
6. One of the points raised by the plaintiffs who are the appellants in A.S. No. 536 of 1970 is that the Court below has wrongly directed the plaintiffs to value the claim under Section 40 of the Madras Court-fees and Suits Valuation Act, 1955. Originally the plaintiffs valued the suit under Section 37(1) and the Court-fee payable was shown as Rs. 866.75. But the Court held that the plaintiffs were obliged to seek to set aside the several alienations and therefore Section 40 of the Madras Court-fees and Suits Valuation Act is attracted and that Court-fee should be paid on the value of the properties as contemplated under Section 40. Then the plaint was amended showing the value of the properties as found in the various sale-deeds, but later, on a check-slip issued by the Court-fee Examiner, the plaint came to be further amended showing the value of the properties as on the date of suit and the Court-fee payable has swelled to Rs. 4,500 odd.
7. Mr. S. Thiagaraja Iyer, learned Counsel for the plaintiffs-appellants contends that the view taken by the Court below that Section 40 of the Court-fees and Suits Valuation Act is applicable to this case is not correct. I am of the view that the contention has to be upheld. It must be remembered that this is a case where the alienations were of joint family properties by the father-manager of the joint family. One is not concerned in this case about alienation of minors' properties by their guardian acting on their behalf. Needless to point out that the joint family manager has authority to deal with the entire joint family properties and, for necessity and binding purposes, he can validly alienate joint family properties. If in such cases, a junior member of the coparcenary claims a division of the properties contending that the alienations are not binding on him, he is not bound to ask for the setting aside of the alienations made by the joint family manager.
8. This position has been made clear in KandasWami Udayan v. Annamalai Pillai (1948) 2 M.L.J. 130 : 61 L.W. 637 : A.I.R. 1949 Mad. 105, which followed the full Bench decision in Ramaswami Aiyangar v. Rangachariar (1948) 2 M.L.J. 130 : 61 L.W. 637 : A.I.R. 1949 Mad. 105 Subba Rao, J., as he then was, held in Kandaswami Udayan v. Annamalai Pillai I.L.R. (1940) Mad. 259 : 51 L.W. 11 : (1940) 1 M.L.J. 32 : A.I.R. 1940 Mad. 113 (F.B.), that where the plaintiffs instituted the suit for partition of the family properties alleging that the properties were the ancestral properties of the plaintiff and their father and that the father alienated the properties, which alienations were not binding on the plaintiff, they are only seeking to recover possession ignoring the alienations and that therefore it was in substance a suit for mere possession falling under Section 7 (v) of the then Court-fees Act and the plaint was not leviable to Court-fee under Section 7(vi-A) of the said Act as amended in Madras. Section 7(iv-A) of the earlier Act corresponds to Section 40 of the present Act while Section 7(v) corresponds to Section 37(1) of the present Act. As I said, this decision follows the Full Bench decision in RamasWami Aiyangar v. Rangackariar I.L.R. (1940) Mad. 259 : 51 L.W. 11 : (1940) 1 M.L.J. 32 : A.I.R. 1940 Mad. 113 (F.B.). These are clear authorities for the proposition that where the alienations questioned are by a joint family manager, the plaintiffs who question the alienations need not pray for setting aside the alienations and the question of paying Court-fees under Section 40 of the Madras Court-fees and Suits Valuation Act does not arise. Only in a case where property belonging to a minor is alienated by his guardian, the minor becomes eo nominee a party to the document and hence he is obliged to ask for setting aside the alienation. In a case where the joint family manager alienates the family properties, even though the minor coparceners are also mentioned as parties to the document, that would not lead to the conclusion that when the minor coparceners question the alienation^ they would be obliged to pray for setting aside the alienation.
9. In Sankaranarayana v. Kandasami I.L.R. (1956) Mad. 1300 : (1956) 2 M.L.J. 411 : 69 L.W. 686 : A.I.R. 1956 Mad. 670 (F.B.), one of the questions referred to the Full Bench Was:
Is the position of a sale-deed executed by a father of the minor, as guardian of the minor son and not as manager of the joint family and head of the coparcenary, in any way different from the position of a sale-deed executed by the mother as guardian of the minor?
At page 676, column 2, Govinda Menon, J., speaking for the Full Bench observed:
The cases cited at the Bar can be classified under two heads, namely those in which the minor's properties are being dealt with by a guardian and the minor seeks a decision that such dealings are not binding on him and secondly, those in which the father or the manager of the joint family purporting to deal with the family properties acts as the guardian of the minor, who is only one of the members of the joint family.
It seems to us that in the former cases the minor is eo nominee a party to the transaction and he should seek to cancel the document in which case court-fee has to be paid under Section 7(iv-A) of the Act. But where the minor was only a member of a joint family and the transaction is on behalf of the joint family, he could always ignore the transaction as not binding on the family and seek to recover possession.
10. Therefore, the Court below is not right in holding that the prayer in the plaint has to be valued under Section 40 of the Court-fees and Suits Valuation Act. That part of the decision of the Court below is reversed and I hold that the Court-fee payable on the plaint is only Rs. 866-75 as originally shown by the plaintiff's.
11. Regarding the alienations, I will first take up the alienation of items 25 to 27 of plaint B Schedule under Exhibit B-1. As I said that is the first of the alienations and it is in favour of the second defendant who is one of the elder brothers of the first defendant. It was at a time when all the properties were available. The document recites cash consideration of Rs. 1,700. No purpose for the first defendant receiving cash and parting with the property is mentioned in the document It is now common ground that the family of the first defendant and the plaintiffs had a money lending business apart from a hotel business at Tiruvannamalai. At the time of this sale the family was small, only the first plaintiff having been born by then. The case put forward by the second defendant and then his legal representatives who are now the appellants in A.S. No. 498 of 1969 is that the sum of Rs. 1,700 was received by the first defendant under Exhibit B-1, for discharging debts incurred in connection with the funeral of the the mother of defendants 1 to 3. This part of the case h3s been rightly disbelieved by the Court; below. It may be true that mother of defendants 1 to 3 had died sometime prior to the execution of Exhibit B-1, but surely, there is no question of the three brothers amongst themselves spending Rs. 5,000 to Rs. 6,000 towards funeral expenses. Anyway when it is admitted that the family had a motley lending business apart from other properties, there Is nothing to show that the first defendant had been obliged to borrow for the funeral expenses and that necessitated the sale of the said items to the second defendant under Exhibit B-1, especially when there was no other commitment. The conclusion of the Court below that the said sale is not binding on the other coparceners is right.
12. However, the Court below is not right in granting a decree in favour of the plaintiffs in respect of those items for a 5/6th share. It is; common ground that plaintiffs 2 to 5 were not born when Exhibit B-1 came to be executed. There was controversy in the Court below, whether the first plaintiff himself was born on that date. The second defendant had contended that the first plaintiff was also born only subsequent to 20th March, 1945, the date of Exhibit B-1. But there is sufficient evidence to show that the first plaintiff was in existence when exhibit B-1 came to be executed. In Exhibit B-24 which is a sale deed in favour of the fourth defendant, the plaintiff is shown as a minor aged 3 years and that document is dated 21st January, 1947. That means the first plaintiff ought to have been born even prior to 20th March, 1945. Therefore the conclusion of the Court below that the first plaintiff was born even prior to the execution of Exhibit B-1 is corrects In fact in the grounds of appeal in A.S. No. 498 of 1969, no ground has been taken attacking the finding of the lower Court on this question, namely, whether the first plaintiff was born even prior to Exhibit B-1. On the contrary, the grounds of appeal themselves proceed on the basis that the first plaintiff was born prior to Exhibit B-1 and that only plaintiffs 2 to 5 were not in existence on the date of Exhibit B-1.
13. That means, on that date, the coparcenary consisted of only the first defendant and the first plaintiff. The first defendant can validly alienate a half share as on that date, for, if there had been a division between him and the first plaintiff on that date, the first defendant would be entitled to a half share. Therefore, the Court below ought to have granted a decree in respect of items 25 to 27 of plaint B Schedule only for one half and not for 5/6th.
14. Another error committed by the Court below as far as the legal representatives of the second defendant are concerned is about the payment of Court-fee. It has generally directed all the alienees whose alienations have been held to be not binding on the plaintiffs, to pay half of the total Court-fee payable on the plaint. That is not right. Each alienee is interested only in the property or properties purchased by him. Therefore, the proper direction should be that the appellants in A.S. No. 498 of 1969, namely the legal representatives of the second defendant who are now in possession of items 25 to 27 of plaint B Schedule shall pay half the proportionate Court-fee payable in respect of those items. A.S. No. 498 of 1969 has therefore to be partly allowed as indicated above.
15. Coming to A.S. No. 536 of 1970, the appeal filed by the plaintiffs, one is concerned with four alienations. I shall first take up the alienation under Exhibit B-20 dated 5th January, 1954 in favour of the 10th defendant. Under that document, item No. 1 of plaint A Schedule which is a house property in Thiruvannamalai town had been sold to the 10th defendant for a sum of Rs. 2,500. The consideration for this sale is the discharge of two earlier mortgages, each for Rs. 1,000 and discharge of a promissory note debt to the extent of Rs. 500, the promissee being the 10th defendant himself. Exhibits B-21 and B-22, both of the year 1953, one in favour of the 1Oth defendant himself and the other in favour of a third party are the two earlier mortgages. Nothing is shown before me that the said two mortgages were not for binding purposes. Therefore under the sale deed, Exhibit B-20, a major part of the consideration, namely Rs. 2,000 had gone in discharge of antecedent binding debts of the family. The contention of Mr. Tyagaraja Iyer, learned Counsel for the plaintiffs-appellants, is that there is no acceptable evidence that there was a promissory note debt to the extent of Rs. 500and that the same came to be discharged by the sale of this property. It is pointed out that if the 10th defendant's case that the promissory note debt is true, then he would be in a position to produce the discharged promissory note. The 10th defendant as D.W. 7 has sworn to the fact that on the execution of the sale-deed under Exhibit B-20 in his favour, he handed over the promissory note for Rs. 500 with an endorsement of discharge to the first defendant. Under the circumstances of the case, there is no reason why this part of the evidence of the 10th defendant should not be accepted. It must be remembered that the promissory note debt was not due to a third party. It was due to the 10th defendant, the alienee himself. Therefore when the debtor sells his property and out of the consideration, the promissory note debt is discharged, it stands to reason that the first defendant insisted upon, getting back the promissory note with the endorsement of discharge and accordingly the 10th defendant parted with the promissory note.
16. Even though in the Court below it seems to have been contended that the property had not been sold for a proper price, such a contention is not raised before me as far as this alienation is concerned-I uphold that decision of the Court below regarding the sale in favour of the 10th defendant under Exhibit B-20.
17. Exhibit B-23 dated 10th July, 1953 is a sale in favour of the 9th defendant under which item No. 2 of plaint A Schedule had been sold for a sum of Rs. 800. That is also a house property in Tiruvannamalai. It may be noted that by the time this document came to be executed the first defendant had been obliged to alienate several other properties to third parties, for some reason or other. The recitals in this document go to show that the first defendant received a cash consideration of Bs. 800in order to meet the family expenses. That is what is spoken to by the 9th defendant as D.W. 10. The Court below has analysed the evidence carefully and has come to the conclusion that the said sale for a sum of Rs. 800 was for necessity and binding purposes. In view of the fact that the document itself recites that the sale was for meeting the family expenses, I think the evidence of the 9th defendant as D.W. 10 in this regard can be accepted. The validity of this alienation also is upheld.
18. Mr. Tyagaraja Iyer, seriously attacked the alienation under Exhibit B-24, dated 21st January, 1947 under which items 1 to 24 of B Schedule (some of the lands in Mayuram taluk) had been sold to the fourth defendant. The sale consideration is Rs. 10,000. The extent of the land conveyed is 12 acres 941/2 cents and it is classified wet. The contention is that considering the extent of the property which is nearly 13 acres, the consideration of Rs. 10,000 in grossly inadequate. But the learned Counsel is not right in this respect, for, when the suit was filed in the year 1962, the value of these items has been shown only as Rs. 20,000. It is common knowledge that between 1947 and 1962, the price of immovable properties including agricultural lands had sharply risen. If the said items were worth Rs. 20,000 in 1962, it is quite probable that the real value of the same in 1947 was Rs. 10,000.
19. Out of the total consideration of 10,000, Rs. 1,000 had been received by the first defendant at the time of the agreement for sale and another sum of Rs. 5,000 on the date of sale. The balance, namely Rs. 4,000 was allowed to be with the vendee and the document recites that the same may be paid over after the plaintiffs 1 and 2 (who were then born) attained majority. There is also another clause in the same document which says that the amount has to be paid by the vendee even earlier and that to the first defendant himself if he offers sufficient security for the said amount. The alienee had executed a promissory note for the said amount. On the promissory note, a suit was laid and it was ultimately compromised under which the sum of Rs. 4,000 was paid to the first defendant on taking immovable property security.
20. The document recites that the first defendant sold the said item for investing the monies in his money-lending business. The question for consideration is whether the said sale could be supported on the ground of benefit to the family. As it is not the case of the alienee that the sale was not in order to discharge any antecedent debts or to meet any other family expenditure, the alienation cannot be supported on the ground of necessity. It can possibly be supported only on the ground of benefit to the family. It must be remembered that the lands sold under Exhibit B-24 are situated in Mayuram taluk in Thanjavur district while the family was living in Tiruvannamalai about 150 miles away. Evidently, the lands were in possession of tenants and it is not unlikely that the first defendant was not able to get proper income from these properties. As I pointed out already, it is common ground that the family had a money-lending business. It was also running a hotel at Tiruvannamalai. Under the above circumstances, if the first defendant thought that it would be in the interest of the family, if he converted the agricultural lands situate in Mayuram taluk into cash and put the same in the family business, it cannot be said that he acted imprudently.
21. The properties purchased by the fourth defendant have passed on to defendants 5 to 8 by subsequent alienations. Incidentally it may be noted that the recitals of consideration in those sale-deeds also go to show that under Exhibit B-24 the first defendant got the proper price for items 1 to 24 of plaint B Schedule. The conclusion of the Court below is therefore right regarding this alienation also.
22. The only other alienation with which I am concerned in this appeal is under Exhibit B-16 dated 26th June, 1957. Under that document, items 29 and 30 of B Schedule whose total extent is 1 acre 65 cents, had been sold to the 12th defendant for a sum of Rs. 2,227.50. The document itself recites payment of cash consideration. In this case it was not contended that the price was inadequate. However, the contention of Mr. Tyagaraja Iyer is that from the very recitals in the document it is evident that there was neither necessity nor benefit and therefore the alienation should not have been upheld by the Court below. The document simply says that the sum of Rs. 2,227.50 had been received by the vendor, namely the first defendant, in cash. The 12th defendant has given evidence as D.W. 2 and the attestors to the document have given evidence as D.Ws. 5 and 6. The evidence of these witnesses is that the first defendant had been obliged to sell the said two items because of pressing debts. It should be remembered that by this time the family had grown and many of the family properties had been lost. It is their evidence that in order to discharge the several debts due by the family, the document came to be executed. D.Ws. 5 and 6 are independent witnesses by all standing. Their evidence makes it clear that the first defendant represented that he had pressing family debts which he had to discharge and the sale was for that purpose. The question is whether this evidence is to be accepted or not. The Court below which had the opportunity to see the witnesses in the witness, box, after carefully assessing their evidence has accepted the same to be true do, not find any reason to differ from the view taken by the Court below. It is true that the purpose for which the same came to be executed is not stated in the document itself. But that circumstance is not conclusive and the evidence of the independent witnesses cannot be rejected on that score. Therefore the said alienation has also to be upheld.
23. The result is, A.S. No. 498 of 1969 is partly allowed, in that the plaintiffs are entitled only to a half share in items 25 to 27 of plaint B Schedule and that the appellants (defendants 25 to 281 have to pay only half of the proportionate Court-lee payable in respect of those items. A.S. No. 536 of 1970 is also partly allowed. That is only in respect of the Question of Court-fee payable on the plaint as indicated earlier.
24. The question of Court-fee has been taken as a specific ground in this appeal and part of the subject-matter of the appeal is the difference between the real Court-fee payable on the plaint and the Court-fee payable as determined by the Court below. On this part of the subject-matter of the appeal, the Court-fee payable is Rs. 273.50, whereas in respect of the main part of the appeal, the Court-fee payable is Rs. 666.50. As the plaintiffs-appellants succeed regarding the question of Court-fee, the sum of Rs. 273.50 is not to be recovered, from the plaintiffs. Nor is it recoverable from any of the defendant, for the excess Court-fee came to he determined by the Court below, not on objections raised by any of the defendants. The Court-fee of Rs. 666.50 on the appeal Memo in A.S. No. 536 of 1970 shall be paid by the appellants therein.
25. The parties are to bear their respective costs in both the appeals.