SRIDHARAN Vs. AMMUGAM

JUDGEMENT

(1.) SRINIVASAN, J. This appeal arises out of an usual Hindu Law Suit, if we can use that expression, the meaning thereby a litigation initiated by the minor children of a Hindu father challenging the alienations effected by him on grounds of illegality and immorality. The unsuccessful plaintiffs in the court below are the appellants. The 5th plaintiff, is the with the 1st defendant. Plaintiffs 1,2 and 4 are the sons and the third plaintiffs is the daughter of the 5th plaintiff and the first defendant. At the time when the suit was filed, plaintiffs 1 to 4 were minors. Plaintiffs 1 to 3 have attained majority since then and have been now declared as major. The 4th plaintiffis nearing completion of 18 years.

(2.) THE first defendant got items 1 to 19 in a family partition under Ex. A-1, dated 3. 8. 1974. He was directed by the deed of partition to discharge debts to the tune of Rs. 19,240,90. THE first defendant got item 20 as heir to his sister Asupathi Ammal who got it under settlement deed dated 21. 7. 1958 (Ex. B-33 ). THE first defendant alienated almost all the properties between 15. 5. 1975 and 2. 6. 1979. THE present suit was filed on 14. 8. 1979. In the plaint, it was alleged that the first defendant was leading an immoral and wayward life and he was addicted to drink, gambling and other bad habits. It was stated that he was not attending to the family affairs and has squandered major portions of the family properties. It was also alleged that the properties was sold for inadequate consideration and the sale proceeds were utilised for illegal and immoral purposes of the 1st defendant. On that basis, the plaintiffs claimed 3/4th share in the suit properties besides provision for the maintenance of 3rd and 5th plaintiffs.

(3.) BEFORE proceeding to refer to the evidence on record on the question of illegality and immorality, it will be advantageous to quote a passage from the judgment of a Division Bench of this Court in a similar case in Santhanavenugopala Krishnan v. K. V. Venugopal, (1976)2 M. L. J. 134. The division Bench observed: "when a minor institutes an action challenging the alienation made by his father or his ancestors on the ground that the debts were avyavharika in nature and that there was no legal necessity which would compel the manager, though he may be a father, to sell or alienate otherwise the properties it is for him to establish at least reasonably, that the circumstances and the position of the family were such that no occasion could have arisen for such a borrowing and that there was no necessity, - all, to alienate the properties at any particular or material point of time. The mere ipso dixit of the plaintiffs, as soon as he becomes a major basing his information on hearsay and gathering some witnesses who would parrot-like repeat what he wants them to say would not improve the position. Antecedent debt has a special signification. If the debts are incurred for paying off debts already in existence, then it will be normally understood as an occasion in which an antecedent debt is being discharged. It is, therefore, essential that in such connections wherein alienations are made so as to pay off antecedent debts in the sense of debts which are recited in a registered and old documents as existing debts of the family, the minor should be in a position to bring home to the court that there was no occasion or there could have been no occasion for the father-manager or any other manager of the joint family to involve himself in such entrepreneurship. For this purpose, he must be in a position to prove what would be the income from the joint family properties and after meeting the generality of expenses connected with the family, there could have been available surplus the existence of which cannot prompt a respectable person to borrow unnecessarily or to mortgage unnecessarily the family properties so as to ultimately burden them. The supreme Court has laid down in uncamy terms that proof of such available surplus of a reasonable inference or acceptable materials that there is a possibility of such in available surplus, should be established so as to compel court of law to set aside an ancient or an old alienation on that ground that the recitals in the documents which created such alienations have to be ignored lightly and contemporaneously brushed aside as not binding on the challenging minor coparceners. Further in cases like this, it would be a practical impossibility for the alienee who is brought to the threshold of the court on the facts adversed by the minor challenging coparcener to prove that the consideration which passed/under one or other alienations made by the father-manager or the manager was rightfully or properly utilised by their vendors. It would be unreasonable to expect such meticulous proof of appropriation and treatment of such consideration nearly 15 or 20 years after the date of such alienation. We may also in passing refer to the decided cases making another general observation in cases like the one under consideration. It is the common feature in such cases that the father who is responsible for the litigation, who though' ' is living with the minor, keeps himself safely outside the witness-box. He can easily be presumed to be a person who is encouraging this litigation as a sutradari. It would not be unreasonable to presume that the hand of the father is always there in this litigation and he just brings into the witness box his brother's sons, minor children and others so as to gamble in litigation, by challenging his own alienations through them. It is this conduct of the parents which is condemned in the following lines in Masit-Ullah v. Damodar Prasad 51 M. L. J. 792 the learned Law Lords state that: "the only sum that was left unaccounted for was rs. 2,000 odd, as found by the Subordinate Judge, Janki Prased, the plaintiffs father, admittedly received the whole consideration, and was the man who used the largest part of the money for the discharge, of the ancestral debts. He could have told in his evidence how the sum of Rs. 2,000 was applied. There is no evidence that it was used for immoral or unauthorised purposes. His testimony was therefore most material in the case. . . . . . Efforts were made to get him into the witness box, but he studiously avoided appearing in court. " we shall now state the general principle which apply under such circumstances as was spoken to by the Privy Council and the other decision of the Supreme court as well. In Jagannath v. Shri Nath, 66 M. L. J. 321. An old father alienated certain family properties and the sale deed was attested by the eldest members of the family. In a suit brought by the minors challenging such alienations, the Privy Council said that the attestors who were the eldest members of the family and who were intimately connected with it were in a better position than anyone else to say whether the money was applied for the necessary purposes of the family. They had allowed their children to figure as plaintiffs and got themselves impleaded as defendants. The suit was a collusive suit and the conduct of the elders afforded ample corroboration of the other evidence that the same was effected for necessary family purposes. " A Division Bench of the Oudh High Court in Sant Baksh v. Lachman Prasad, I. L. R 1946 Oudh. 92, observed that: "where the father executes a sale-deed by which he alienates joint family property to satisfy his previous liabilities and his son, on attaining majority, files a suit to set aside the sale deed on the ground that it was executed without any legal necessity in pleading the father as defendant and the father does not come forward to give evidence whether all or any of the debts borrowed by him were not for legal necessity, it must be held that the suit is a collusive suit filed at the instance of the father and the failure of the father to come into the witness box and to state the real facts raises a presumption against the plaintiff that the money must have been needed for legal necessity. " (The italics is ours.) Finally, the Supreme Court in Doha Amrit Lal Nagji v. Doshi Jayantilal Jethalal, (1960)3 S. C. R. 842, stated that: "where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons who challenge the allegation have to prove not only that the antecedent debts were immoral but also that the purchasers had notice that they were so tainted. In this respect no valid distinction can be made between mortgage and a purchase and the above principle will apply to a mortgage created by the father. " Again the Supreme Court in Radha Krishnadas v. Kalluram, (1963)1 S. C. R 648, stated that: "where an alienation, by way of sale of the family property made by a Hindu father is challenged by his sons on the ground of want of legal necessity then it is now well established that what the alienee is required to establish his legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the action application of the money paid or advanced by him unless he enters into the management, himself. " It is, therefore, fairly clear that the challenges made by a minor in the matter of alienation whom or borrowing made by their elders including their father, cannot lightly be accepted by Courts unless the facts in each of those cases do satisfy the norms laid down by the various decisions cited above. "in the light of the above, it is for consideration, in the instant case whether the minors have proved that the debt challenged by them or the alienation questioned were in connection with antecedent debts which were immoral and whether the purchasers had notice of the inherent avyavaharike nature of such debts. "