NARAYANA PRABHU Vs. JANARDHANA MALLAN

JUDGEMENT

(1.) Defendants 1 to 3 in a suit for recovery of possession of property on the basis of title are the appellants in this appeal The plaintiffs claimed that their father, one deceased Venkiteswara Mallan, was in possession and enjoyment of the suit property when he, in conjunction with the 4th defendant, his eldest son, is said to have executed a sale deed for the suit property in favour of the first defendant That is Ext. P2 dated 24-3-1955. The plaintiff's aver that they and the 4th defendant are members of an undivided Hindu Mithakshara joint family, the 4th defendant is the manager and the suit items belonged to that family having been obtained in the p]ition of the family in the year 1951. Venkiteswara Mallan who was in management died in 1131 Kumbham and before his death he had sold the properties along with the 4th defendant to the first defendant for a consideration shown as of Rs. 21,000/- and the first defendant was put in possession. This sale deed is said to be not binding on the family as being unsupported by consideration as well as necessity or benefit to the estate. It is said that the father Venkiteswara Mallan and the 4th defendant had, at any rate, no fight to transfer the interest of the plaintiffs and therefore in any event in the alternative they prayed that the plaintiff's may be allowed to recover 6/8th share in the suit properties. According to them on the date of Ext. P2 the properties were much more valuable than the amount shown as consideration so the sale deed and even the amount so shown was not received but the entire amount was reserved with the first defendant to discharge by payment the future kuri instalments in a kuri subscribed by their father. This, it is said, could have been done from out of the income of the property sold and also of the properties which were in the possession of the family. The main contention raised by the first defendant was that the property never belonged to the joint family that it was separate property of the father, Venkiteswara Mallan, that it was dealt with by him as if his own property, that the 4th defendant joined the document by way of abundant caution at the instance of the first defendant and that plaintiff's have no right to challenge Ext. P2 sale deed, it is also contended that Venkiteswara Mallan was heavily in debts on the date of Ext. P2 and that liquidation of such debts was an urgent necessity for which purpose he had to sell items other than those which were the subject matter of Ext. P2 sale deed, but he could not do so because all these items were secured for the payment of future subscriptions of a kuri under Ext. P7 kuri mortgage deed and it was in order to release items other than suit items that the sale was effected. It is said that as a result of the sale other items of properties were released so that they could be sold and that they were actually sold for discharge of the debts of the father.

(2.) The court below did not accept the case of the first defendant that the property was the separate property of Venkiteswara Mallan. It found that the property was joint family property in his hands. The court found that even if Venkiteswara Mallan had other debts on the date of execution of the sale deed those debts were not binding upon the family and they have not been shown to be so binding and therefore the existence of those debts would not be a justification for Ext P2 sale. As to the consideration for Ext P2 court below found that there was no pressing necessity to assign the homestead leaving the entire money with the first defendant and giving him the privilege of making piecemeal payments in instalments to the Lord Krishna Bank by way of future subscriptions. It was held that payment of future subscriptions would not be a debt and therefore it could not be contended that Ext. P2 was executed by a Hindu father for discharge of his antecedent debts and for that reason sons are not entitled to challenge the document. Of course, there is no plea that the debt is tainted by immorality or illegality, The sale is not for discharge of antecedent debts and it cannot be held to be binding on the family once it is shown that the property belonged to the family and no necessity for such execution so far as the family is concerned is shown by the evidence in the case. The court also found that considering the price of the property as determined by the Commissioner the price fixed under Ext, P2 could not be said to be adequate. The plaintiffs who were minors on the data of Ext. P2 were held to be competent to question the validity of the document But a decree was given only in regard to 6/8th share, This too was subject to liability to contribute 6/8th share in the kuri subscriptions made from the date of Ext. P2. The plaintiffs were further directed to pay the costs of the improvements in the share allotted to them under the final decree,

(3.) Though one of the hotly debated issues in the court below was whether the properties comprised in Ext. P2 belonged to Venkiteswara Mallan separately or whether it belonged to his family that is no longer in controversy here because counsel fairly concedes that such a proposition cannot be sustained in law. The property admittedly belonged to Venkiteswara Mallan's father and it is such ancestral properties that were taken by Venkiteswara Mallan and his brothers under the partition deed of 1951. Any property obtained by a person governed by the Hindu Mitakshara law from his ancestors must be ancestral property in his hands and the sons in the family will have right by birth to such property,