Partly allowed

Inti Venkata Subba Rao v. Talluri Ramesh Babu

Telangana HC29 Apr 2014AS/1922/1994

Case brief

AI extract

What is this about?

Appellant challenged a decree for partition affecting his purchased property. The court held the sale to minors was invalid but binding on the vendor father. Allowing the appeal partially, the court directed the trial court to allot the purchased land to the father's share after working out equities for the appellant.

What did the court decide?

Appeal allowed in part; direction issued to trial court to allot item No. 5 of schedule property to the 1st defendant's share after working out equities for the benefit of the appellant.

Inti Venkata Subba Rao Vs Talluri Ramesh Babu — Partition | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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APPEAL SUIT No. 1922 of 1994

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JUDGMENT:

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The 2^nd defendant in O.S.No.160 of 1983 on the file of the Subordinate Judge, Kovvur, West Godavari preferred this appeal against the impugned decree and judgment dated 27.04.1993 whereunder a decree for partition in favour of the plaintiffs was passed. The appellant was the 2^nd defendant. Respondents 1 to 3 were the plaintiffs and respondents 4, 5 and 6 were the defendants 1, 3 and 4 and they will be hereinafter referred as arrayed before the trial Court for convenience.

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2. The plaintiffs filed the suit for partition of the schedule properties into four equal shares and allot one such share to each of the plaintiffs and 1^st defendant.

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3. The plaintiffs are the minor children of the 1^st defendant. Defendant No.2 (appellant herein) and defendant No.4 are the purchasers of item Nos.1 to 5 of the plaint schedule property. Due to differences between 1^st defendant and his wife, there was an estrangement in 1990 between the plaintiffs mother and father, the 1^st defendant herein.

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4. The 1^st defendant and his brothers partitioned their property in June, 1981 and January, 1982. In the said partition of 40 acres of joint family property, ‘A’ schedule property was allotted to the share of 1^st defendant in the said partition. Thus, the property is the joint family property. Plaintiffs 1 and 2 being the sons, the 3^rd defendant being the unmarried daughter are entitled to claim share along with D1. However, D1 created fictitious sale transactions in favour of D2 to D5. The 2^nd defendant appellant purchased item No.5 of the schedule property and the 1^st defendant sold the same without any necessity or the benefit to

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the joint family and the sale was only to defeat the rights of the plaintiffs. Hence, the sale is not binding.

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5. Since the defendants 3, 4 and 5 filed separate appeals and their rights are not the subject matter of the appeals. I myself constrained to discuss about rights of the 2^nd defendant appellant in the property. Defendants 3, 4 and 5 filed separate appeals. A.S.No.1931 of 1994 and the same was ended in compromise between defendants 3, 4 and the plaintiffs therein by virtue of order in ASMP No.1963 of 2006 dated 23.09.2006.

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6. The 1^st defendant remained exparte. 2^nd defendant and other defendants contested, but the plea of the 2^nd defendant is relevant to decide the real dispute between the parties. The specific contention of the 2^nd defendant appellant is that the 1^st defendant for the joint family benefit borrowed amount from different creditors and indebted to them. The plaintiffs and the 1^st defendant have executed a sale deed in favour of the 2^nd defendant for item No.5 of the schedule property and it is binding on the plaintiff and defendants. Therefore, he is a bonafide purchaser of the schedule property and it is for the benefit of family and item No.5 of the schedule property is not liable for partition and prayed to dismiss the suit.

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7. Basing on the pleadings of all the parties to the appeal, the trial Court framed the following issues :

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1. Whether the plaintiffs are entitled for partition as prayed for ?

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2. Whether the alienations in favour of the defendants 2 to 4 are true, valid and binding on the plaintiffs ?

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3. Whether the plaintiffs are entitled to future profits ?

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4. To what relief ?

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8. During the course of trial, on behalf of the plaintiffs, P.W.1 was examined and marked Exs.A1 and A2 and on behalf of the defendants, DWs.1 to 10 were examined and marked Exs.B1 to B28.

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9. Upon hearing argument of both the counsel, considering the oral and documentary evidence on record, the trial Court held issues 1 and 2 in favour of the plaintiffs holding that the sale in favour of 2^nd defendant is not for the benefit of the joint family and held that the sale in favour of the 2^nd defendant is not binding on the plaintiffs and ordered for partition.

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10. Aggrieved by the impugned decree and judgment of trial Court, the 2^nd defendant preferred this appeal on various grounds, mainly contending that when the plaintiffs and the 1^st defendant are parties to the document executed sale deed in favour of the defendants and appellant, it is binding on both the plaintiffs and 1^st defendant and it is only for the legal necessity and benefit of the joint family. However, the trial Court on erroneous appreciation of facts disbelieved the case of the defendants.

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11. It is further contended that the plaintiff being the purchaser of item No.5 of ‘A’ schedule property both from the plaintiffs and 1^st defendant is entitled to claim equities in view of the judgment reported in 1956 AIR 251 FB and 1959 ANWR 79 FB. Finally prayed to direct the trial Court allot the property purchased by the 2^nd defendant-appellant to the share of the father of the plaintiffs D1 herein working out equities.

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12. Learned counsel for the appellant during the course of arguments reiterated the contentions raised in the grounds of appeal and mainly contended that in the event the Court found that the sale in favour of the 2^nd defendant appellant is not binding on the plaintiffs requested this Court to allot an extent of Ac.0.86 cents purchased by the 2^nd defendant appellant to the share of 1^st defendant. So that equities can be worked out and placed reliance on the judgment reported in 1959(2) ANWR 1979.

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13. Whereas the counsel for the respondent argued totally in support

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of the findings recorded by the trial Court. Considering rival contentions and perusing the material available on record, the points that arise for consideration are :

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1. Whether the plaintiffs and D1 executed Ex.B15 dated 13.09.1982 in favour of defendant No.2 appellant. If so, is it for the benefit of joint family and binding on the plaintiffs and 1^st defendant?

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2. Whether the 2^nd defendant appellant is entitled to claim any equities for allotment of the property purchased by him to the share of 1^st defendant herein?

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14. POINT No.1 :- Admittedly, the 2^nd defendant purchased item No.5 of the ‘A’ schedule property under Ex.B15 executed by Talluri Krishnarao and his undivided minor son represented by the 1^st defendant Talluri Krishnarao himself, conveying an extent of Ac.0.80 cents in Survey No.770 of Chagallu villave. The purpose of sale is to discharge the debts contacted for agricultural purpose and details of debts are also mentioned at page Nos.3, 4 and 5 of document Ex.B15. From the contents of Ex.B15, no amount was paid except discharging the debts due to various creditors of 1^st defendant and plaintiffs were only minors by the date of execution of Ex.B1. They did not personally join as executants in execution of Ex.B15. When I advert to oral evidence of DW2, the 2^nd defendant herein, the 1^st defendant borrowed Rs.5,000/from him under a mortgage deed Ex.B6 and also testified that 1^st defendant agreed to sell the property. In the cross-examination, DW2 pleaded ignorance about the purpose of sale etc. Therefore, basing on the evidence of DW2, the trial Court disbelieved the sale deed marked as Ex.B15 on the ground that the sale of property covered by Ex.B15 is not for the benefit of joint family and the plaintiffs were not parties to the suit in their individual capacity but they were represented by the 1^st defendant who is their father. Therefore, the trial Court disbelieved the oral evidence of DW2 and held that the sale under Ex.B15 is not binding against the plaintiffs respondents 1 to 3 herein and the finding of the trial Court in para 23 is as follows :-

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“I therefore, hold that the alienations made in favour of defendants 2 to 4 are not valid and binding on the plaintiffs. The 1^st defendant has not contested the suit. The plaintiffs are coparceners and therefore they are entitled for partition of the schedule property. Hence, I decided the above issues in favor of the plaintiffs and against the defendants.”

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As per the finding recorded by the trial Court, the sale covered by Ex.B15 was held not binding on the plaintiffs. It means that the sale transaction Ex.B15 is binding on the 1^st defendant being the coparcener. Therefore, the finding of the trial Court that the sale covered by Ex.B15 is not binding on the plaintiffs does not call for interference by this Court and apart from that the sale deed is not disputed by the 1^st defendant, father of the plaintiffs. Hence the sale transaction is binding on the 1^st defendant.

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15. Even according to Section 30 of Hindu Succession Act, Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 or any other law for time being in force and applicable to Hindus. If the alienation is considered with a reference to Section 30 of Indian Succession Act, the 1^st defendant being member of undivided Hindu joint coparcenery is entitled to sale, a part of it which he is capable to sell. Therefore, the sale of the property to the extent of share of the 1^st defendant binds him and it is not hit by Section 30 of Hindu Succession Act.

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16. Considering admissions both in the pleadings and evidence of the 2^nd defendant, it is clear that he purchased the property from the 1^st defendant though the 1^st defendant himself represented his minor undivided sons, the sale is not binding on the minors as they are not direct parties to the document and that no benefit for the joint family was shown in the entire evidence or pleadings. Hence the finding of the trial Court that the sale is not valid and binding on the plaintiffs is upheld.

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17. In view of my discussion in the earlier paras, the plaintiffs are

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entitled to claim partition of the schedule property allotting 1/4^th share to each of the plaintiffs and 1^st defendant. Accordingly, point No.1 is held in favour of the plaintiffs, respondents 1 to 3 and against the appellant.

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18. POINT No.2 :- One of the major contention raised in this appeal is that the 2^nd defendant-appellant being the purchaser of 0.86 cents i.e., item No.5 of ‘A’ schedule property under Ex.B15 is entitled to claim equities against the 1^st defendant and requested to direct the trial Court to allot item No.5 to the share of 1^st defendant working out equities. The counsel for the respondents did not object the request of the 2^nd defendant appellant specifically. However, when the sale against the plaintiffs is invalid, it is binding on the 1^st defendant who sold the property. At the same time when it is binding on the 1^st defendant the purchaser can claim equities for allotment of item No.5 of ‘A’ schedule property to the share of 1^st defendant so as to claim this property for himself. According to settled law, the alienation may be upheld in its entirety though necessity was only partial in other words even though the whole consideration was not for the necessity of the joint family or to discharge the antecedent debts. Even then the purchaser can claim equities to compel the 1^st defendant to make good the loss, the purchaser the 2^nd defendant appellant herein. In a similar situation in a judgment between Ede China Gurunadham and others V. Palakurthi

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Venkata Rao and others^[1] , the Full Bench of this Court held as follows :-

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“The equity which arises in the case of first alienee is not available to the alienee from an alienee of a specific item of property from a Hindu coparcener and the latter could not maintain a suit for general partition claiming the allotment to him of that specific item.”

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The authorities bearing on this problem, though few, lend us considerable assistance in answering it and we will advert to them presently. A member of a Hindu united family could alienate either his undivided share in the family property or in specific immovable property or the whole of a specific item therein. In either of these cases, the alienee does not get an interest in the property but acquires an equity to stand in the shoes of his alienor and work out his rights in a partition suit. He could either institute a suit for partition or could get himself impleaded in a general suit for partition filed by any of the coparceners and ask for allotment of that share to the

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alienating coparcener if that does not prejudice the rights of the others. If that could not be so set apart, he would be entitled to recover the other property falling to the share of his vendor in substation of the property that the alienated to him. This is not a right which is founded on any of the texts of Hindu law but is the result of a doctrine developed by judicial policy. These proposals are beyond controversy and no citation is necessary in order to support them.

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The equitable doctrine seems to have been conceded having regard to the incidents of the rights of a coparcener in a joint Hindu family. So long as the family is united, a member’s share does not attach itself to any particular part of the estate but to the estate as a whole and could be determined only by “taking a general account and making a distribution in accordance with the result”. It is therefore only equitable that everything being equal the alienating coparcener’s share should be so made up as to embrace wholly or so far as practicable the lands which were sold by him, so that the vendee might not be prejudiced.”

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In the facts of the above judgment, the equity was claimed by alienee of alienee and the Subordinate Judge’s Court at Machilipatnam declined to grant equity in favour of alienee’s alienee. However, the same was confirmed by the Full Bench of this Court holding that alienee’s alienee is not entitled to claim equity and it is not a right and it depends upon the circumstances of the case. It is clear from the above judgment that a purchaser of the property can claim equity for allotment of the property purchased by him to the share of his vendor in a suit for general partition and one who approached the Court claiming equity must do equity since it is not a right based on any provisions of Hindu Succession Act. Therefore, the appellant 2^nd defendant is only a purchaser i.e., alienee is entitled to claim equities for allotment of item No.5 of plaint A schedule property to the share of 1^st defendant, so, as to claim the property from the 1^st defendant, working out equities.

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19. In view of the principle laid down by the full bench of this Court in the above judgment and considering the facts and circumstances of the case, I find that it is a fit case to direct the trial Court to allot item No.5 of A schedule property to the share of 1^st defendant, the vendee of the 2^nd defendant appellant after working out equities while passing a final decree, accepting the contention of the appellant.

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20. In the instant case, it appears that the plaintiffs are no other than

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the sons of the 1^st defendant vendor and the 1^st defendant did not contest the suit for different reasons. It appears that the 1^st defendant in collusion with the plaintiffs trying to avoid the sale transactions so as to deprive the purchaser, 2^nd defendant and others to claim their legitimate rights in the property purchased by them. Thus, the 1^st defendant and plaintiffs did not approach the Court with clean hands but with an intention to deprive the purchasers to claim rights in the property purchased by them.

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21. Hence, in view of my foregoing discussion, I hold that the 2^nd defendant-appellant is entitled to claim equities as he approached the Court with clean hands. Accordingly, point No.2 is answered in favour of the 2^nd defendant-appellant and against the plaintiff.

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22. In the result, appeal is allowed in part while confirming the right of the plaintiffs-respondents 1 to 3 to claim partition, issuing direction to the trial Court to allot item No.5 of the A schedule property to the share of 1^st defendant after working out equities, so as to claim the same by the 2^nd defendant-appellant. In the circumstances, each party do bear their own costs.

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JUSTICE M. SATYANARAYANA MURTHY

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Date : 29.04.2014 ssp

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[1] 1959(2) ANWR 79

Inti Venkata Subba Rao v. Talluri Ramesh Babu

Case brief

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Inti Venkata Subba Rao v. Talluri Ramesh Babu

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