MOHAMED NAZIRUDDIN Vs. GOVINDARAJULU APPAH

JUDGEMENT

(1.) PLAINTIFFS 1 and 2 are the sons of plaintiffs 3 and 4, who were added as the legal representatives of the second plaintiff who died during the pendency of the suit. One Mohamed Ghouse Khan Sabhi, the father of the fourth plaintiff, executed a gift deed on 19-9-1938 in respect of the superstructure of house No. 13 Fakir sated Street, first lane, Triplicate, Madras in favour of his grandsons, plaintiff 1 and 2, who were then minors represented by their father and guardian Mohamed Mahaboob Khan, the fourth plaintiff in the suit. Ex. A-1 is a registration copy of the gift deed and it shows that the property has been valued at Rs. 1000. At the time of the gift there was a mortgage Ex. B-1 dated 25-4-1938, executed by Mohamed ghouse Khan for Rs. 300, over the property covered by the gift deed. The donor directed the mortgage to be redeemed from out of the income and profits from the property gifted by him. The fourth plaintiff paid only a sum of Rs. 55 towards the principal till the end of 1946. On 10th October 1946, he agreed to sell the property covered by the gift on behalf of his minor sons to one Abdul Azeez Sahib and received Rs. 300 and redeemed the mortgage Ex. B-1 by paying Rs. 245 on 1412-1946, as evidenced by the endorsement Ex. B-2. He executed the sale deed, ex. B-3 dated 7-6-1947, as guardian of his minor sons in favour of Abdul Aziz sahib for Rs. 500 and received the balance of consideration of Rs. 200 for the maintenance expenses of the minor sons. Abdul Aziz Sahib sold the property purchased by him under Ex. B-3 to one Gulam ahmed Sahib for Rs. 700. Gulam Ahmed Sahib sold the superstructure on the western portion described as 13-A Fakir Sahib, St. , first lane, Triplicane, under Ex. B-9, dated 3-1-1948 for Rs. 5500 in favour of Mohamed Yusuf Sahib. The heirs of mohamed Yusuf Sahib at first executed the mortgage Ex. B-10 dated 10-9-1956 in favour of one Bano Prasad Davay and subsequently sold the property under Ex. B14, dated 29-4-1957 in favour of the first defendant. Gulam Ahmed Sahib sold the eastern half of the superstructure purchased by him under Ex. B-4 in favour of muthu Kannammal for Rs. 1000 under Ex. B-19 dated 26-7-1947, and she in here turn sold the property to Amirthavalli Ammal under Ex. B-22, dated 20-8-1948 for rs. 1500. The second defendant is the mother and heir of Amirthavalli Ammal. It should be noted that the first defendant and the second defendant's daughter amirthavalli Ammal have purchased the sites of the respective superstructure from the owner Krishnadas Lala under Ex. B-12 and Ex. B-23 respectively. The third defendant has been impleaded as the mortgagee from the said Amirthavalli ammal. Defendants 4 to 7 are the vendors of the first defendant. The 8th defendant was impleaded under Order 8-A C. P. C. at the instance of the first defendant.

(2.) PLAINTIFFS 1 and 2 file the suit in forma paupers for a declaration that they entitled to Item 1 and 2 of the plaint A Schedule properties, which are described as superstructure being former door No. 13 and now 12 Fakir Sahib St. first lane, triplicane, by virtue of the gift deed under the original of Ex. A-1 in their favour, and for possession of the same with past mesne profits Rs. 870 form the first defendant and Rs. 1080 from the second defendant and future mesne profits. Their case is that the alienation made by their father is viod and not binding on them. The suit was contested by defendants 1 and 2. The learned Third Assistant judge, City Civil Court, Madras, found that the sale deed Ex. B-3 executed by the fourth plaintiff as guardian of his minor sons was not binding of plaintiffs 1and 2, that defendants 1 and 2 were however entitled to rights by way of subrogation in respect of the mortgage debt of Rs. 245, discharged out of the sale consideration of Ex. B-3, that the claim of the first plaintiff was barred by Art. 44 of the Limitation Act as he had attained majority more than three years prior to suit and that though defendants 1 sand 2 had effected improvements as claimed by them, there was no evidence about the value of the same and he relegated the plaintiffs to a separate suit for partition and separate possession in respect of their 5/12th share in the suit properties. The first plaintiff has filed the appeal in so far as the trial court had negatived the portion of his claim and defendants 1 and 2 have filed a memorandum of cross-objections to the extent to which the trial court had decreed the suit against them.

(3.) THE main question for consideration in this appeal is the validity of the sale deed Ex. B-3 dated 7-6-1947, executed by the fourth plaintiff as guardian of plaintiff 1 and 2 for Rs. 500. An inter-lineation has been made in para 5 of the plaint that the property has been sold under Ex. B-3 by the fourth plaintiff, "to one abdul Azeez at a gross undervaluation. '' The learned Third Assistant Judge City civil Court, Madras, has discussed this aspect of the case in para 12 of his judgment and found that "the property was not sold for a proper price'' under Ex. B-3. The burden of proof is on the plaintiffs to prove that the sale under Ex. B-3 is for a low price, as contended by them. It is true that in the gift has been valued as rs. 1000. But the sale deed Ex. . B-3 was executed on 7-6-1947. The recital therein shows that the agreement of sale took place on 10-10-1946. The recital in the sale deed is that the superstructure is in a dilapidated condition. The learned third Assistant Judge has strongly relied on Ex. B-4, under which the superstructure has been sold within seven days of Ex. B-3 for Rs. 700 as a strong circumstance to show that the price mentioned in Ex. B-3 is no a proper one. Though the superstructure might have been worth Rs. 1000 at the time of the gift in 1938, it decreased in value evidently as it got dilapidated. It is significant to note that during the course of 8 years the fourth plaintiff was able to pay only a sum of Rs. 55 towards the principal of the mortgage. debt. The learned Third Assistant Judge has erred in relying on the fact that the property was sold for Rs. 700 within a few days from the date of Ex. B-3 to infer that the property was not sold for a proper price by the legal guardian of plaintiffs 1 and 2. Though the sale deed Ex. B-3 is dated 7-6-1947, it is clear from the recitals that the fourth plaintiff agreed to sell the property on behalf of his minor sons for Rs. 500 even as early as 10-10-1946. The rise in price by Rs. , 200 from 10-10-1946 to 16-6-1947 may be due to several causes. It may be that the vendee under Ex. B-3 spent some money and effected improvements. Even in Ex. B-4 there is a recital that the vendor had agreed to sell the property as the purchase had offered to purchase the property for the advantageous sum of Rs. 700. It is possible that on account of the fact that advantageous or fancy price was offered by the vendee under Ex. B-3, the property was sold for Rs. 700 and that it does not really represent the reasonable market price at that time. The fourth plaintiff could have been examined to speak to the circumstances under which he sold the property under Ex. B-3 for a low price as pleaded by the plaintiffs. But he has not been examined as a witness in this case. In the absence of any evidence about the value of the then existing superstructure on the suit property on 10-10-1946, we are unable to find that the sale under Ex. B-3 is not a proper price.