Karnataka High Court
Fakirappa And Ors. vs Mallappa And Ors. on 26 August, 2003
Equivalent citations: 2004(3)KARLJ154, 2003 AIR - KANT. H. C. R. 2755, (2004) 3 KANT LJ 154
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
JUDGMENT A.V. Srinivasa Reddy, J.
1. This regular second appeal arises from the divergent findings of the Courts below.
2. For the sake of convenience the parties are referred to in the course of this judgment by their rank and status in the Trial Court.
3. The plaintiffs, respondents 1 to 5 filed O.S. No. 600 of 1990 against the defendants, appellants herein, seeking a decree of permanent injunction in respect of 8 acres of land in Sy. No. 12/1-AA of Karadikoppa Village, Hubli Taluk. The defendants resisted the suit and filed a counter-claim for partition of the said property and allotment of 1/3rd share to them on the ground that they had purchased 3 acres from Chennappa, the father of plaintiffs 3 to 5. After trial, the learned Trial Judge by his judgment and decree dated 16th December, 1993 decreed the suit as prayed for. Being aggrieved, the defendants took the matter in R.A. No. 8 of 1994 before the Court below. The Court below on reappreciation of the evidence set aside the judgment and decree passed in O.S. No. 600 of 1990 and dismissed the suit of the plaintiffs and allowed the counter-claim of the defendants. Being aggrieved, the plaintiffs in O.S. No. 600 of 1990 have come up in this regular second appeal.
4. I have heard the learned Counsels on both sides.
5. Learned Counsel for the appellants Mr. Umesh R. Malimath submitted that the plaintiffs are cultivating the land jointly and it is in their joint possession and that their name figures in the record of rights pertaining to the land in question. The property has been purchased from the nucleus of ancestral property. Chennappa was addicted to bad vices and the sale effected by him was not for legal necessity and, therefore, not binding on them, The Court below erred in proceeding with the appeal despite the death of second plaintiff (respondent 2 before the Court below) during the pendency of the appeal in the Court below. The regular appeal having abated the judgment and decree passed by the Court below is liable to be set aside.
6. Learned Counsel for the respondent-Mr. V.F. Kumbar on the other hand submitted that the suit land is not a joint family property. It is a property purchased jointly by plaintiffs 1 and 2 and Chennappa, the father of plaintiffs 3 to 5. The property was purchased by late Chennappa out of his self-earned funds and the property having been sold by him during his lifetime itself, the question whether it was sold for legal necessity or not is immaterial. The defendants are purchasers of 3 acres of the suit property for valuable consideration and they are entitled to a decree for partition.
7. In the light of the rivals submissions made before me, the following substantial questions arise for my consideration:
(1) Whether the judgment and decree of the Court below in R.A. No. 55 of 2000 is vitiated on account of abatement of the appeal as a result of death of the second plaintiff who was the second respondent in the said appeal?
(2) Whether the existence or otherwise of the legal necessity for late Chennappa to sell 3 acres of the suit property is a relevant issue for deciding the suit?
(3) Whether the counter-claim of the defendants could have been entertained by the Courts below without the plea for possession of the share claimed by them?
8. Point No. (1).--Order 22, Rule 4 of the CPC lays down the procedure to be followed in case of death of one of several defendants or of sole defendant. The said rule reads:
"4. Procedure in case of death of one of several defendants or of sole defendant.--(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
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(emphasis supplied) The counter-claim by the defendants was only in respect of 1/3rd share of the suit property which according to them they purchased from Chennappa. Undoubtedly, therefore, the counter-claim as set up by the defendants is only as against the share of plaintiffs 3 to 5 in the suit property. The cause urged by the defendants in their counter-claim is not common to plaintiffs 1 and 2 on the one hand and plaintiffs 3 to 5 on the other. In their defence against the claim of plaintiffs 1 and 2 for permanent injunction the cause is one of defending their right to enter upon the land purchased by them from Chennappa whereas in the counter-claim set up by them against plaintiff's 3 to 5 they were urging a cause for partition of 1/3rd share of the suit property purchased by them from Chennappa. Their claim in respect of partition which was being agitated by them in appeal is a cause which survived even after the death of the second plaintiff-Fakirawwa as the defendants were seeking a remedy only in respect of 1/3rd share of Chennappa in the suit property in which Fakirawwa could have had no interest. This cause could have been defended only by plaintiffs 3 to 5 who are the children of the deceased Chennappa and not by Fakirawwa who had no manner of right over 1/3rd share in the property which was purchased by Chennappa along with her and plaintiff 1. Therefore, there was no common cause in the appeal filed by the defendants in the Court below to hold that the whole appeal would abate on the death of Fakirawwa. Therefore, this question has to be answered in the negative and against the plaintiffs in the suit.
9. Point No. (2).--The suit as filed by the plaintiffs is one for bare injunction against the defendants. The plaintiffs case as could be gathered from the plaint averments is that they are the absolute owners of the suit property and that the defendants have no manner of right over the suit property and the sale deed executed by Chennappa was not valid. The plaintiffs 1 and 2 could not have taken the stand that the sale deed is invalid on the ground that it was not sold for legal necessity because the status of the family of Chennappa and plaintiffs 1 and 2 was not joint at the time of purchase of the suit property. There was a division among them of the joint family properties and the purchase of the suit property was made by them in their individual capacity by joining together each own contributing the consideration in respect of his share and not as coparceners. The question whether the suit property becomes in the hands of plaintiffs 3 to 5 their joint family property would arise for consideration in this suit only if it was pleaded by plaintiffs 3 to 5 that the consideration received by selling the suit property was not spent for legal necessities. There is of course a plea taken by plaintiffs 3 to 5 that the consideration for purchase of the suit property by Chennappa flowed out of the funds received by him as his share from his joint family property but that by itself is not enough to hold that the sale is invalid. There has to be a specific plea that the sale was not for legal necessities. As such a plea was not taken by plaintiffs 3 to 5 no amount of evidence led at the trial would give rise to this issue and the said issue was irrelevant for deciding the suit and both the Courts below erred in going into this aspect of the matter for deciding the suit. The purchase having been made by Chennappa in his individual capacity and not as the kartha of the joint family the presumption in law is that it was purchased from his self-earnings. Unless it is pleaded and proved by the members of Chennappa's family that the purchase was made from out of the joint family nucleus received by Chennappa in the partition between himself and other members of his family and the consideration received from the sale of the suit property was spent on the bad vices that Chennappa was addicted to, there was no need for the defendant to have shown that the sale was for family necessity. Sarojini, the daughter of Chennappa who stepped into the witness-box merely stated that: Chennappa was given to bad vices but never stated that the consideration received from the sale of the suit property was spent by him on those bad vices. In Smt. Rani v. Smt. Santa Bala Debnath, the Apex Court had occasion to determine on whom the onus lies to prove that alienation is for legal necessity. The decision has also laid down what evidentiary value can be attached to a recital in the sale deed to the effect that the sale is for legal necessity. The ratio of the decision is brought out in Head note (B) in the following terms:
"Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession".
In the case on hand except for making a general statement that the sale is not for legal necessity, plaintiffs 3 to 5 have not spelt out the specific reason why the property was sold and how the consideration therefrom was utilised by Chennappa. A general statement made without making reference to specific instances of spending by Chennappa on the bad vices, knowledge of which could only be attributed to plaintiffs alone, could not take away the evidentiary value that is attached to the recital in the sale deed. The ratio of the decision in Smt. Rani's case, supra, also is to the same effect. Therefore, the decision cited by learned Counsel Umesh Malimath is of no avail to the appellants. To similar effect is the ratio of the decision in Sunder Das v. Gajananrao . In the said case also the Apex Court has held that the transaction, as the recitals in the sale deed themselves rightly showed, in the light of surrounding circumstances was a transaction for the benefit of the family. In Fakirappa v. Venkatesh, 1976(2) Kar. LJ. 186 the validity of a sale by father for legal necessity was under challenge. A learned Single Judge of this Court dealing with the said issue, held:
"An alienation made by the father for discharging antecedent debts would be binding on the sons irrespective of the fact that there was no other legal necessity or family necessity supporting it".
The legal necessity for which the suit property was sold as mentioned in the sale deed was to improve the land and in the absence of any surrounding circumstances to disbelieve this recital it must be held that the sale was for legal necessity. In matters where the challenge to a sale is on the ground of want of legal necessity, it is for the persons so claiming to bring out in detail how the money was spent other than for legal necessity because knowledge of such spending on vices by the vendor would always be within the knowledge of the plaintiffs and not the alienees. Where such facts and circumstances are not brought out in evidence, then the recitals in the sale deed aid the claim of the alienee with greater force and Court would be justified in raising an inference against the plaintiffs who contend otherwise.
10. Notwithstanding the legal position obtaining in law on this point, insofar as facts are concerned, there is a clear averment in the sale deed that the sale was being effected for making improvements to his land. The evidence as to the fact of Chennappa being given to vices would have been well-within the knowledge of the plaintiffs 3 to 5 and it was for them to have shown by adducing cogent and satisfactory evidence that the recital contained in the sale deed that the sale was being effected for improving the land is incorrect. Though recitals in a deed of sale themselves do not prove legal necessity, the recitals are admissible in evidence and where it is not shown by the plaintiffs 3 to 5 by satisfactory evidence that the sale was not for legal necessity and the consideration was spent on bad vices, knowledge of which could be exclusively attributed to them alone, the recital contained in the sale deed becomes an acceptable piece of evidence to hold that the sale was for legal necessity. Therefore, this point also has to be answered in the negative and against the appellants.
11. Point No. (3).--Both parties have contended that they are in possession of the lands. The Court below has held in favour of the defendants. This finding being purely a finding of fact, it is not open for this Court to go into the same in this second appeal. As the finding of fact recorded by the Court below on this aspect is in favour of the defendants, it must be held that the counter-claim by the defendants for mere partition of their 1/3rd share is legally valid as they were already in possession and the Courts below were right in raising the said issue for determination and in determining it. I answer point No. (3) accordingly.
12. In the result, for the reasons stated above, I find no merit in this appeal and the same is accordingly dismissed affirming the judgment and decree passed by the Court below.