NARAYANA PRABHU Vs. JANARDHANA MALLAN

JUDGEMENT

(1.) DEFENDANTS 1 to 3 in O.S.No.35 of 1963 on the file of the Sub Court,Irinjalakuda are the Appellants in this appeal.In the above suit for recovery of possession of property,plaintiffs claimed that their father deceased Venkiteswara Mallan who was in possession and enjoyment of the suit property had executed Ext.P2 sale deed dated 24th March 1955 alongwith the 4th defendant,the elder son in favour of the 1st defendant.According to the plaintiffs,they and 4th defendant are members of an undivided Hindu Mithakshara joint family and the suit items belonged to their family having been obtained in the partition of the family in the year 1951 as per Ext.P1 partition deed dated 15th July 1951.Venkiteswara Mallan who was their father and who was in management of the property died in 1131 Kumbam M.E.It was contended that the sale deed is not binding on the family as being unsupported by valid consideration as well as necessity or benefit to the estate.It was also contended that,at any rate,their father Venkiteswara Mallan and their elder brother(4th defendant)had no right to transfer the interests of the plaintiffs and,therefore,the plaintiffs are at least entitled to recover 6/8 shares in the suit properties.The consideration shown in the document is only Rs.21,000 and the entire amount of Rs.21,000 is seen reserved for discharge of a kuri liability payable in future instalments for a period of 12 1/2 years.It was further stated that the family was in a position to pay up the subscription from the income from the properties and there was no necessity for transferring the property especially when the property was the seat of the family house.It was contended by the 1st defendant that it was not joint family property.It was not ancestral properties.On the death of Janardhana Mallan,grandfather of the 4th defendant,his assets were partitioned between his two children Venkiteswara Mallan and Narayana Mallan and those two persons were entitled to deal with the properties as their own self acquired properties and the A schedule properties were set apart to the plaintiffs father Venkiteswara Mallan and those properties are his separate properties.It was contended that the 4th defendant joined as a party to the document as an abundant caution at the instance of 1st defendant as 4th defendant was residing in the property.Venkiteswara Mallan was heavily in debts and to discharge the liabilities sale of some of the properties were necessary.But,while taking assignment of one prized kuri from one Ramaswamy Iyer,entire properties of Venkiteswara Mallan were hypothecated to the Lord Krishna Bank.By executing Ext.P2 sale deed hypothecation liability was also discharged and,therefore,there was sufficient consideration.Even if the property covered by Ext.P2 sale deed is family property it was sold for discharging the debts of Venkiteswara Mallan and for family necessity.Question of limitation etc.were also not raised.Defendants 2 and 3 who were the children of the 1st defendant did not file separate written statements.4th defendant who joined in Ext.P2 sale deed and who was a member of the joint family of the plaintiffs did not file any written statement.The Trial Court found that Ext.P2 sale deed is not supported by adequate consideration and it dealt with family property and for sale of the above property there was no family necessity and,therefore,Ext.P2 sale deed is invalid and liable to be set aside.By Judgment dated 10th July 1973,a Division Bench of this Court confirmed the Judgment and decree of the lower court except regarding a minor point with regard to the value of improvements.It was found by the then Division Bench that the entire contentions were raised by the defendants on the assumption that the property belonged to Venkiteswara Mallan.Even though the Trial Court found that there was no family necessity to sell the property,this Court did not go into that question on the ground that there was no pleading to that effect in the written statement.On appeal,the Supreme Court found that there was alternative pleading in the written statement to the effect that even if it is family property it was sold for family necessity and for clearing antecedent debt of father and,therefore,Division Bench was clearly in error in proceeding on the basis that there was no such pleading.Therefore,by Judgment in Civil Appeal No.1197 of 1974 dated 10th May 1996,the Judgment of this Court dated 10th July 1973 was set aside and the matter was remanded for fresh disposal.

(2.) IT is common case that the plaint items were originally acquired by Janardhana Mallan,grandfather of 4th defendant,by Exts.P8 and P9 sale deeds.Ext.P8 is the sale deed executed by one Subramanian Pattar in favour of Janardhana Mallan and Ext.P9 dated 12th Medam 1088 is another sale deed executed by one Ananthan Kammathi in favour of Janardhana Mallan.After the death of Janardhana Mallan,his sons,who inherited the properties,entered into a partition deed,Ext.P1.Thus,property of Janardhana Mallan was divided as per Ext.P1 among his two sons,Venkiteswara Mallan and Narayana Mallan.Properties covered by Ext.P2 sale deed was obtained by Venkiteswara Mallan under Ext.P1 partition deed on inheritance from his father.The property admittedly belonged to Venkiteswara Mallan's father.Under Mithakshara law property obtained from ancestors or father must be treated as family property and the sons in the family will get a right by birth to such property.Therefore,the property covered by Ext.P2 sale deed is a joint family property.The learned Advocate appearing for the appellants rightly conceded that this is a joint family property.The main contention in the written statement however was that it was personal property of Venkiteswara Mallan.4th defendant,the elder son,joined only because he was residing in the property.However,in the written statement itself an alternative contention was raised stating that Ext.P2 sale deed was executed because of family necessity to clear off the debts.It is also submitted that Venkiteswara Mallan being father and manager of the family can sell the property for clearing his own antecedent debts and it is binding on the sons in view of pious obligation.Therefore,the main questions to be considered in this appeal are whether there was antecedent debts;whether there was family necessity;whether there was due enquiry by the purchaser;and whether there was adequate consideration.All these aspects were considered by the Trial Court and found against the appellants.

(3.) AS per A schedule to Ext.P1 partition deed,Venkiteswara Mallan got various items of properties from his father.Item I has an extent of 1 acre and 14 cents which is the subject matter of Ext.P2.It was the seat of the family house where the parties were residing.Apart from the residential house,there was coconut trees.It is contended by the appellants/defendants that 1 acre 1.4 cents assigned by Ext.P2 contained only 52 fruit bearing coconut trees apart from the house.Only because of this assignment charge on other properties were released.After release of the other items from Ext.P7 hypothecation deed,out of item No.2 in Ext.P1 partition deed,i.e .,5 acres 94 cents of coconut garden,one acre 97 cents was assigned under Ext.D1 and 66 cents in item 4 was assigned under Ext.X1.It was contended that consideration for Exts.D1 and X1 was utilised for discharge of the debts of deceased Venkiteswara Mallan and other family debts.Therefore,Ext.P2 was executed in furtherance and as part of a scheme put into effect by Venkiteswara Mallan and his well wishers to clear off his debts.It was pointed out that there was challenge to Exts.D1;and X1,transactions and challenge to Ext.D1 was settled pending suit and Ext.X1 transaction was affirmed by the Trial Court;but,set aside by the High Court.The Honourable Supreme Court affirmed the decision of the Trial Court as Ext.X1 assignment deed was executed to clear off the antecedent debts.