CHIKKATHARMAIAH Vs. CHIKKAHUTCHIAH

JUDGEMENT

(1.) This revision petition is filed against the order of the learned Munsiff at Mandya, while deciding Issue No. 5, holding that the suit was not maintainable unless the petitioners-plaintiffs sought for the relief for cancellation of a previous sale deed executed by their father in favour of the defendant-2. The petition arises in the following circumstances. A Civil Suit was filed by Chikkathamaiah and two others who are sons of one Chikkegowda for declaration of title and permanent injunction relating to a house site. It was stated that Chikkegowda executed, a sale deed in 1954 in favour of his son-in-law K. L. Mallegowda and that sale deed was obtained by undue influence and fraud inasmuch as Chikkegowda was an old man and he was sick and feeble on the date of the execution of the sale deed. The plaintiffs based their claim stating that the property was the joint family property and after the death of Chikkegowda the plaintiffs being the sons got the title and the sale deed of 1954 was not binding upon them. The defendants raised a preliminary objection that the suit was not maintainable unless a relief was asked for the cancellation of the sale deed of' 1954 and thereafter court-fee paid on that relief. The learned Munsiff agreed with the defendants and he has held that the suit is not maintainable unless the sale deed of 1954 is sought to be cancelled. Against that order of the learned Munsiff, the present revision is filed.

(2.) The learned counsel for h respondents rightly contended that under the very allegations made in the plaint, the property was ancestral and the plaintiffs claimed title from their father Chikkegowda with whom they constituted a joint Hindu family, Chikkegowda being the father of the plaintiffs could alienate the property for legal necessity and in exercise of his power of management as 'Kartha' of the family. Unless the sale deed is not sought to be cancelled by the plaintiffs they can only get whatever share could be assigned to them in 1954 as a partition between the father and the sons. Chikkegowda could always alienate his share in the property and the other members of the family could claim a partition from the purchaser. In the face of this legal position, the argument, of the learned counsel for the petitioners that the plaintiffs not being a party to the sale deed need not ask for cancellation of that sale deed, does not appear to be correct. Until and unless the sale deed of 1954 is cancelled, the plaintiffs cannot get the relief. In other words, the plaintiffs cannot ignore the sale deed and must seek for cancellation of that sale deed. Otherwise, the suit may not be maintainable.

(3.) The learned counsel relied on In Re Thirupathiammal (AIR 1956 Mad 179). But in that case, the son executed the sale deed and the father was not a party. It is evident the father was not claiming title through the son and so it was held that the father need not have asked for the cancellation of the sale deed.