SAROJA AMMAL Vs. AMEENA AMMAL

JUDGEMENT

(1.) The third respondent in O.S. No. 276 of 1981 on the file of the Principal District Munsif, Thirutharaipoondi, is the appellant in the second appeal. Respondents 1 to 3 herein fled the said suit against respondents 4 and 5 herein and the appellant for partition and separate possession of their 21/40 share in the plaint schedule properties, for mesne profits and for costs alleging as follows : The suit properties belonged to one Musthafa Maracair, husband of the fourth respondent and father of the other respondents they being the daughters of the said Musthafa through the fourth respondent herein, who was the second wife of Musthafa and the fifth respondent being the son of Musthafa through his first wife. Musthafa died in 1974. Respondents 1 to 3 became entitled to each 7/40 share, the fourth respondent to 5/40 share and the fifth respondent 14/40 share. The fourth respondent did not take proper care of respondent 1 to 3 compelling them to seek the protection of their material uncle through whom they had filed the suit. The fifth respondent had one Vanjoor Maracair as his power agent. As per his advice the fourth respondent and the fifth respondent sold away suit schedule 1 item to the appellant on 4.8.1975 for a grossly inadequate price of Rs. 11,000, though the property was worth Rs. 50,000. The fourth respondent under Mohammedan Law had no legal right to represent respondent 1 to 3 as the guardian and to deal with the property The sale by the fourth respondent in favour of respondents 1 to 3 was therefore invalid The sale was also not for any necessity The fourth respondent also did not buy any other property from out of the sale proceeds of the schedule property, though it was so recited in the sale deed. The sale had been gone through on the ill-advice of the fifth respondent's Power of Attorney Holder and the sale would not bind the share "of respondents 1 to 3. They caused a notice to be issued to the appellant on 8.1.1980, to which there was reply on behalf of the appellant on 13.1.1980 containing unacceptable and false reasons. Even otherwise, it could not be stated that the appellant had purchased the property bona fide without notice of the rights of respondents 1 to 3. The suit was therefore filed.

(2.) Respondents 4 and 5 remained ex parte. The appellant resisted the suit contending inter alia as follows : It was not true to say that the suit schedule I property was worth Rs 50,000 It had been purchased by the appellant for proper consideration. It was also not at the instance or advice of the agent of the fifth respondent that the property was sold. It was only the fourth respondent, who was taking care of respondents 1 to 3. She did not have any personal income. It was false to say that the paternal; uncle of respondents 1 to 3 was taking care of them. There was not enough income from the lands left behind by Musthafa Maracair. This compelled the fourth respondent to incur debts and she had to sell the suit schedule item 1. The sale itself was for benefit of respondents 1 to 3 and it would bind them. After purchase by her, the appellant had improved the same by spending about Rs. 20,000. She had planted 60 coconut saplings, 10 cashews, 6 mangoes, 5 guaves, 2 lime and 3 bamboo clusters. Even conceding without admitting that respondents 1 to 3 had any share in schedule item I, they were liable to pay the expenses incurred by the appellant in improving the property The other properties set out in the schedule had been given as security for the suit sale in any event, in equity the schedule 1 property consisting of 51 cents could be allotted to the share of respondents 4 and 5. Proper Court fee had not been paid.

(3.) On the basis of the pleadings, the learned District Munsif framed the necessary issues and found that the main could not be upheld, but then the appellant would be entitled to have this item allotted to the share of respondents 4 and 5 in equity. The learned District Munsif, in the absence of proper material, did not accept the case of the appellant that she had effected improvement by spending over Rs. 20,000. The learned District Munsif further observed that the Counsel for respondents 1 to 3 did not object to equity being granted as prayed for by the appellant. The appellant filed appeal in A.S.No. 53 of 1983 before the Subordinate Judge not only did not accept the case of the appellant that she had effected improvement to the tune of Rs. 20,000 and more, but further held that the appellant had taken the other properties as security that it had therefore to be concluded that the sale in her favour was not a bona fide transaction and that therefore she was not entitled to equity. As regards the improvements, the learned subordinate Judge held that it was not necessary at this stage to give a decision as to whether improvements had indeed been effected. So holding the learned District Judge conferred the decision of the trial Court for the further reasons given by him in the judgment