GOPALAKRISHNAN Vs. BALASUBRAMANIA CHETTIAR AND ORS.

JUDGEMENT

(1.) THE plaintiff who has substantially failed in the Courts below has filed this second appeal. The suit, ostensibly and in the ultimate one for partition and separate possession of the plaintiff's 1/3 share in the properties of a joint Hindu family with consequential reliefs, is in the main one challenging the alienations made by the plaintiff's father. The first defendant in the suit is the father and the second defendant, the younger brother of the plaintiff. Defendants 3 to 14 are alienees from the father. Defendants 10, 11 and 14 did not contest the plaintiff's claim and except in respect of items 6, 7 and 10 in the plaint in which they were said to be interested, the plaintiff's claim for partition was rejected. A preliminary decree for partition was granted to the plaintiff as against the ex parte defendants in respect of the items in which they were stated to be interested. Of the contested items that were made the subject -matter in the second appeal the arguments in Court were confined to items 2, 3, 4, 5, 8 and 9 only. In the Courts below one of the main planks of attack was that the debts incurred by the father were in a speculative and hazardous new business, that the business was not the ancestral business of the family, and that the alienations for discharge of the debts of the business would not therefore, bind the son. There are of course the usual allegations that the father was weak minded, taken to immoral ways and that the alienations were for discharge of avyavaharika debts. Averments were also made that there was no necessity for the sales, and that in some of the cases the properties were sold for in adequate consideration.

(2.) THE parties are Vysias whose Kulachara is trade. Even during the lifetime of the plaintiff's grandfather, the family had trade in rice, groceries and gunpowder. It was a flourishing business with considerable annual income. It is stated that the first defendant in 1924 started a new business, the business being in cotton and groundnuts, and that he entered into forward contracts in respect of these commodities. It is the expansion in this business which is characterised as speculative in character. Between 1924 and 1928 the first defendant had incurred a liability of over 2 lakhs of rupees and according to the plaintiff this led to the partition in the larger joint family between the first defendant, and his brothers. The partition was on the 9th August, 1928, and is evidenced by the partition deed Exhibit A -l. A major portion of the debts incurred was directed to be discharged by the first defendant, he being allotted more properties for the said purpose. All the outstandings due to the business it is said, were also allotted to the first defendant besides lands. buildings, etc. The plaintiff charges his father with continuing his speculative and hazardous business in grounduts and cotton even after the partition and incurring debts between 1928 and 1932. It is admitted by the plaintiff in his plaint that by 1932 the first defendant had discharged the debts undertaken by him in the partition deed selling properties and realising the outstandings. It is stated that even after setting apart properties for discharge of debts in the partition substantial properties were left with the first defendant. It is alleged that still he became worse after the partition and incurred debts by his immoral life. According to the plaintiff as a prudent man the first defendant ought not to have continued the business. The alienees sought to sustain the sales in their favour contending that the alienations Were effected for the discharge of antecedent debts, that the business in groundnuts and cotton was neither a new nor speculative business, and that at any rate the business was started even before the plaintiff was born. It was pleaded by the defendants that the alienations were fully supported by consideration, and that the debts were all incurred for the purposes binding on the family, by the first defendant Who was a very careful and prudent manager.

(3.) THE Courts below have examined the several alienations in detail taking each alienation separately for consideration. The Courts below have, in considering the validity of the alienations, referred to the legal principles applicable in the matter by reference to decided cases. The questions raised were approached for consideration on correct legal principles. The Courts below found that the alienations were valid and binding on the plaintiff. They held that there was legal necessity for the alienations and the debts for discharge of which the alienations were made were binding debts. They found that the business carried on by the first defendant was neither speculative nor hazardous. The business was started when the first defendant was joint with his brothers. He had continued the business after the partition in the family in 1928. The plaintiff is the eldest son of the first defendant and he was born only in August, 1933. It was not open to the plaintiff in the circumstances to contend that his father had embarked the ancestral assets on a hazardous and speculative business. Even in 1924 the family had a ginning factory. The first defendant purchased cotton, ginned and sold the same to mills at Coimbatore. The family had a grocery business and was also trading in rice. According to the modern concept of business in the circumstances it cannot be held that the business embarked upon by the first defendant was new and speculative and debts incurred therein would not bind the members of the family. It must be noticed that it was during the continuance of the business after the partition, that the first defendant discharged debts to the tune of two lakhs which he was directed to discharge under the partition deed. When the new line of the business was started, the first defendant was the sole coparcener. He as the sole coparcener was entitled to start the new business with the joint family funds. (See Sakthivel v. South Indian Bank : AIR 1958 Mad 132 . Learned Counsel for the appellant, therefore, did not challenge before me that the debts incurred are in consequence of a speculative ventures and, therefore, they cannot bind the family. Learned Counsel does not even challenge the truth or genuineness of the debts referred to in the impugned alienations : nor does he contend that the debts cannot properly form the consideration for the alienations in question. What is urged before me for the appellant is that in respect of some of the alienations there has been no adequate consideration, and that in respect of some of them a good part of the consideration was cash. It is stated that in such cases where only a part of the consideration had gone in discharge of the debts, in the absence of proof that the cash had also been applied for discharge of the debts or bona fide enquiry by the alienees as to the necessity for alienation had been made the alienations must fail. It is also stated that a mere recital in a deed of alienation that the alienation was for discharge of debts generally without specifying the debts will not be sufficient, and that the alienee must prove existence of debts for the discharge of which the alienation was effected or enquiry by the alienee of existence of the debts. The Courts below have examined the impugned alienations with reference to the adequacy of consideration and also the application of the balance when upholding their validity. If they have approached the question from the right legal perspective and applied the legal principles to the evidence on record, really there is little left in the matter for consideration in second appeal.