In the second appeal against a decision dismissing a partition suit, the High Court upheld the lower courts' finding that the family property alienation was for lawful necessity and that the suit was barred for partial partition due to omission of other lands. The appeal was dismissed for lack of substantial question of law.
The second appeal is dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.01.2017
PRONOUNCED ON : 06.02.2017
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.469 of 2011
and
M.P.No.1 of 2011
R.Sudha ... Appellant Vs.
Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 04.10.2010 in A.S.No.23 of 2010 on the file of the Principal Subordinate Judge, Thiruvannamalai, confirming the decree and judgment dated 25.03.2010 in O.S.No.523 of 2007 on the file of the Principal District Munsif, Thiruvannamalai.
For Appellant : Mr.R.Rajarajan For Respondent : No appearance Nos.1 to 3 For Respondent : Mr.T.Dhanasekaran Nos.4 & 5
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JUDGMENT
Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 04.10.2010 made in A.S.No.23 of 2010 on the file of the Principal Sub Court, Thiruvannamalai, confirming the decree and judgment dated 25.03.2010 made in O.S.No.523 of 2007 on the file of the Principal District Munsif Court, Thiruvannamalai.
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the first defendant, without any necessity, had alienated the suit properties in favour of the defendants 4 & 5 and despite the above said alienation, as the plaintiff is entitled to claim partition in the suit properties, the suit has been laid.
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findings and conclusions of the courts below, no exception could be taken even in this appeal. The counsel for the plaintiff has not pointed out that the first defendant had alienated the suit properties under Exs.B1 and 2 for tainted objects and illegal activities. He would contend that the first defendant had not obtained the sanction of the court before alienating the Joint Hindu Family properties under Exs.B1 & 2. The above contention of the plaintiff's counsel has to be rejected as it is found that in view of the express terms of the provisions contained in Section 6 and 12 of the Hindu Minority and Guardianship Act, 1956 in respect of the Joint Hindu Family properties, the Kartha is not necessitated to seek the permission of the court for the alienation of the minor's share under Section 8 of the above said Act. In this connection, a useful reference may be made to the decisions reported in AIR 1996 Supreme Court 2371
(Sri Narayan Bal and others Vs. Sridhar Sutar and others), (1990) 3 Supreme Court Cases 68 (Manibhai and others Vs. Hemraj and others) and 2005-1-L.W.628 (Pandiarajan and four others Vs. Korangi Thyagarajan and seventeen others).
Supreme Court Cases 68 (Manibhai and others Vs. Hemraj and
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others) , it could be seen that alienation of the Joint family property by the kartha to satisfy debts contracted even for his personal benefit and without any legal necessity is binding on his children on the basis of the doctrine of pious obligation if the alienation is not avyavharik or tainted with immorality or illegality and the debts were antecedent in fact as well as in time to the alienation.
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courts below that it is only the first defendant, who is maintaining the joint family and also put up house construction in respect of the properties and also not acted against the interest of his children. Therefore, the courts below have also disbelieved the evidence of PWs1 and 2 and found that the joint Hindu Family had owned 3.66 acres lands and on the other hand, the plaintiff has deliberately excluded certain items and only had laid the suit in respect of the suit properties covered under Exs.B1 & 2. Therefore, as rightly contended by the contesting defendants, the suit laid by the plaintiff for partition is bad for partial partition. The findings of the courts below, as regards the above issue is found to be based on the correct appreciation of the evidence on record and also upon acceptable findings and conclusions. No infirmity is found with reference to the above findings of the courts below.
In conclusion, no substantial question of law is found to be
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involved in this second appeal and accordingly, the second appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
06.02.2017
Index : Yes/No Internet: Yes/No sms
To
T.RAVINDRAN,J.
sms
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Pre-delivery Judgment in S. A.No.469 of 2011 and M.P.No.1 of 2011
06.02.2017
3 issues framed by the court
Whether the alienation of joint Hindu family property by the karta for family necessity is binding on the daughter without court sanction under the Hindu Minority and Guardianship Act.
Whether the suit for partition is maintainable as partial partition by omitting other joint family lands.
Whether the appellate court should interfere with the courts' factual findings regarding the nature of the alienation and maintenance of the joint family.
Colour shows how this judgement treated each authority
AIR 1996 Supreme Court 2371Referred¶25
Manibhai and others Vs. Hemraj and othersExplained¶27
(1990) 3 Supreme Court Cases 68
Pandiarajan and four others Vs. Korangi Thyagarajan and seventeen othersReferred¶25
2005-1-L.W.628
R. Sudha
Shanmugam
Murugan
Raju
Elumalai
Subramani
T. Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
T. Ravindran
Parties & counsel
