Andhra HC (Pre-Telangana)
Bijjur Narasa Reddy And Others vs Ramulu And Others on 26 August, 1999
Equivalent citations: 1999(6)ALD157
ORDER
1. The defendants 2 and 3 are the appellants herein. The Suit OS No.128 of 1982 was filed by the plaintiffs on behalf of minors for partition of movable and immoveable properties shown in A and B Schedule of the plaint. For the sake of convenience the parties to this appeal hereinafter will be referred to in accordance with their status in the suit.
2. The brief averments in the plaint are as follows:
D1 and the plaintiffs are the members of the Hindu Joint Family. The lands in Survey No.123/A, admeasuring 4 acres and Survey No. 123 admeasuring 3 acres situated at Sonala village of Boath taluq and a house bearing No.2-48, situated at Sonala shown in A schedule to the plaint are the ancestral and joint family properties, in which the plaintiffs and Dl have equal shares. Besides this, the family has movable properties shown in B schedule. The plaintiffs and D1 got equal shares in those properties also. It is the case of the plaintiffs that Dl was addicted to all bad vices including drinking and gambling. Because of this, Dl sold survey No.123/A, admeasuring 3 acres to D2 and the land in survey No. 123 measuring 3 acres to D3 in the year 1979 without any legal necessity. He sold these lands to meet his expenditure for his bad vices. The mother of the plaintiffs protested against the same, but even than D1 sold the lands to meet his own expenditure. Ever since then, D2 and D3 are in possession of the said lands. The movable and immovable properties are the ancestral joint family properties. The plaintiffs have share in those properties by birth and each one has got 1/4th share in A and B schedule properties. The defendants 2 and 3 have no rights to purchase the lands ignoring their interest in the land. The plaintiffs are not parties to these sale transactions and therefore, they are not bound by the sales executed by the first defendant. The first defendant sold the entire agricultural lands without any reason or legal necessity. The present suit is filed for the benefit of the minor plaintiffs. Therefore, the sales are null and void, insofar as they relate to the share of the plaintiffs. The plaintiffs have filed the present suit for partition of their 3/4th share in 'A' and 'B' schedule properties.
3. The 1st defendant filed his written statement supporting the case of the plaintiffs.
4. Defendants 2 and 3 filed a joint written statement. It is their contention that the 1st defendant was not addicted to any bad vices and the said properties were sold for legal necessities. They also contended that the mother of the plaintiffs knew about the sales.
5. The trial Court framed appropriate issues as to whether the 1st defendant sold Survey Nos.123/A and 123 out of his legal necessity and held that the plaintiffs I to 3 are entitled to get 1/4th share each in the lands covered by Exs.Bl and B2. The trial Court further held that the plaintiffs are entitled to get 1/4th share in the house property, which is included in plaint 'A' schedule. Insofar as plaint 'B' schedule properties are concerned, the trail Court disallowed the claim and directed to divide the 'A' schedule properties into four shares.
Aggrieved by the decree and judgment of the trial Court, the present appeal is filed.
6. Sri Y. Srinivasa Murthy, the learned Counsel for the plaintiffs contended that the sale deed executed by the 1st defendant was for legal necessity and it was for the benefit of the family. He placed strong reliance on the evidence of DWs.3 to 6 the bank staff for the purpose of establishing that the loans of the 1st defendant were cleared. In the present case there is no dispute that the lands sold to defendants 2 and 3 under Exs.B1 and B2 are the ancestral properties. DW1, who is the 3rd defendant in the suit and who purchased Ac.3-00 from the 1st defendant under Ex.B1 for a consideration of Rs.13,500/-, stated in the chief-examination that the 1st defendant alone sold the lands under Exs.Bl and B2. In the cross-examination it was admitted that the suit property is ancestral property. Further plaintiffs 1 to 3 along with the 1st defendant, who is their father, have 1/4th share each in the suit schedule properties. DWs.1, 2 and 7 to 9 in their evidence have stated that after the sale in 1979 the 1 st defendant had performed the marriage of the eldest daughter of the 1st defendant and that he spent and amount of Rs.15,000/- for the marriage but this fact was not mentioned in the written statement and it was brought only in the evidence. The evidence relating to this aspect that the sales were effected solely for the purpose of performing the marriage has not been established and is not convincing. The evidence of DW2 that he attended the marriage eight days after the 1st defendant shifted to Karimnagar and that he accompanied the 1st defendant to Karimnagar, does not appear to be true and correct. In his cross-examination he says that the village of the 1st defendant is between Karimnagar and Siricilla and hence he stayed there only for one day. It is obvious that this witness came to speak in favour of the 1st defendant without any basis. Mo prudent man sells the entire valuable land to celebrate the marriage when there are other sons. On this ground the alienations made cannot be held to be for legal necessity. Even assuming that the evidence of DWs.3 to 6 with respect to loans are correct, there is no evidence to show that there was any threat by any creditor on the 1st defendant to pay the loans. There is also no evidence to show that he was pressurised for repayment of the loans due to which he was compelled to sell the lands for legal necessity. In the cross-examination DW1 admitted that after the payment of full consideration they did not give any amount subsequently towards the outstanding debt of the 1st defendant. This clearly shows that their claim that they paid the debts of the 1st defendant is baseless. When the alienation is questioned by the minor sons, the burden of proving the same is on the alienee to show that there was legal necessity or benefit of the family and the alienation was for the discharge of antecedent debts justifying the alienation. In the present case the alienee has failed to discharge that burden. The conduct of the 1st defendant in taking the plea that he was addicted to vices is anything but appreciable. It is not open to him to take shelter that he was addicted to vices and hence the alienations made were improper. Insofar as the share of the 1st defendant is concerned, defendants 2 and 3 are entitled to work out their claim against the share of the 1st defendant for the consideration paid by them. The trial Court has rightly decreed the suit in part. The trial Court has right in holding that plaintiffs I to 3 are entitled to get l/4th share each in the lands converted by Exs.B1 and B2. They are also entitled to get 1/4th share in the house property which is included in plaint 'A' schedule. Since the plaintiffs failed to prove that the family also possessed 'B' schedule properties, the trail Court has rightly disallowed the claim insofar as plaint 'B' schedule properties is concerned.
7. The trial Court on a consideration of the entire oral and documentary evidence has rightly decreed the suit in part. I do not find any reason to interfere with the judgment and decree of the trial Court.
8. The appeal, therefore, fails and is accordingly dismissed. There will be no order as to costs.