1. This appeal is by the plaintiffs against the judgment and decree dated October 9, 1974 of the Addl. Civil Judge, Tumkur, in O.S. No. 36 of 1972 on his file. The suit was for partition of the suit schedule items of properties consisting both immoveable and moveable properties. Plaintiffs claimed that four of them were the sons of defendant-2 and the 5th of them was the wife of defendant-2 and mother of first four plaintiffs. They further claimed that the suit schedule items of properties were all joint family properties of the joint family consisting of defendants 1 to 3. Plaintiffs further alleged that the alienations made by their father defendant-2 were not for legal necessity and that he was having illicit relation with another woman to the exclusion of the 5th plaintiff, his legally wedded wife and, therefore, such alienations should not in any way bind them. They prayed for partition of the suit schedule properties by metes and bounds and separate possession of the same.
2. The first and third defendants resisted the suit claim denying the plaint allegations in general. They particularly asserted that the plaintiffs had no cause of action against them as there was already a division or partition and the joint status had ceased as far back as 1951 and that the second defendant then had been given his one-third share of the properties and separate possession thereof. They also asserted that the woman said to be living illicitly with the second defendant was really his wife and it was, in fact, the plaintiffs who are not the sons and wile of the second defendant In the result, they prayed for dismissal of the suit. Defendant-2, father of plaintiffs 1 to 4 remained ex parte in the trial court.
3. On the above pleadings, the trial Court framed as many as six issues in the first instance and one additional issue which are as follows :
(1) Whether S. Nos, 45,56,13, Khaneshumari Nos. 54, 103 and houses bearing Nos. 103/3 and 116 belonged to the Hindu joint family of plaintiffs and defendants?
(2) Whether there was partition of the joint family properties among the defendants 1 to 3 in the year 1951 and the properties mentioned in the schedules A and B mentioned in the written statement fell to the share of the first and 3rd defendants?
(3) Whether the second defendant sold for legal necessity and benefit of his family 16 guntas of land in S. No. 83, 31/2 guntas of land in S. No. 19/2, 321/4 guntas of land in S.No. 5/2, 24 guntas of land in S. No. 35, 7 guntas in S. No. 38/2 and 3 guntas of land in S. No. 45, to the 1st defendant on 2-6-1959 and 26-11-1971 and the sale is binding on the shares of the plaintiffs?
(4) Whether the Hindu joint family of the plaintiffs and defendants possessed moveables mentioned in the plaint 'B' schedule?
(5) Whether the plaintiffs are entitled to any share in the plaint schedule properties and if so to what share they are entitled'?
(6) To what future mesne profits are the plaintiffs entitled?
(7) To what reliefs are the plaintiffs entitled?
Whether the 5th plaintiff is the wife of the second defendant and the plaintiffs 1 to 4 are the children of the second defendant?
4. The learned Civil Judge found on all issues in the affirmative in favour of the defendants except the additional issue. In the result, as is clear from paragraph 24 of the judgment of the trial Court, in regard to the relief to be granted to the plaintiffs, he found that the plaintiffs had no cause of action against the defendants 1 and 3 much less defendant-4, son of defendant-1. He also found that the alienations made by defendart-2 were binding on the plaintiffs. He also recorded a finding that it was only defendant-2 and plaintiffs who formed a separate joint family accepting the plea of the earlier partition set up by defendants 1 and 3. As there was no property left in the hands of defendant-2 which he had got to his share at the family partition earlier, no relief could therefore be granted to the plaintiffs. In the result, he dismissed the suit.
5. Aggrieved by the judgment and decree, the plaintiffs appellants have approached this Court.
6. In the course of this judgment, we will refer to the parties by the rank assigned to them in the trial Court. The controversy in this appeal does not touch upon many of the issues decided. It is confined to the alienations made by defendant-2 in favour of defendant- 1 as per Exhibit D-25, a deed of sale by which practically all the properties that fell to the share of defendant-2 at the earlier partition came to be sold for a consideration of Rs. 3000/-. Similarly, two other earlier alienations made as per Exhibits D-24 and D26 also require to be examined by this Court. If this court were to come to the conclusion that those alienations were justified on the ground of legal necessity or for the benefit of the estate, then the plaintiffs would have no case at all. On the other hand, if the, alienations are held to be not binding on the plaintiffs and it was not for legal necessity on account of the failure on the part of defendant- 1 to make the requisite enquiry, then the plaintiffs would succeed. Therefore, the question which we must determine is whether the alienations under Exhibits D-24, D-25 and D-26 could be held to be for legal necessity or for the benefit of the estate.
7. Counsel on both sides agreed before us that there was an earlier partition between the brothers-defendants 1 to 3 and the properties alienated by defendant-2 came to the share of defendant-1. On the basis of this submission, the only point that arises for consideration is whether defendant-2 was justified in alienating the items of properties under Exhibits D-24 to D- 21 6.
8. Exhibit D-24 was the earliest alienation. It was on February 20, 1964. It was a mortgage in respect of plaint items Nos. 13 and 14 in favour of the son of defendant- 1 who is none other than defendant-4. The mortgage amount was Rs. 600/- the properties mortgaged are S. No. 38/2 measuring 27 guntas in all and S. No. 45 measuring 3 guntas.
9. Exhibit D-26 is a sale decd dated June 22, 1964 executed by defendant-2 in favour of defendent-1 for Rs. 800/-. The property sold was plaint item No. 18 which is S. No. 83 measuring 16 guntas.
10. Exhibit D-25 is another sale deed dated November 26, 197 1. It was also executed by defendant-2 in favour of defendant-1 for Rs. 3,000/-. There under as many as seven items were sold which practically covered the properties which fell to the share of defendant2 at the family partition.
11. So far as the mortgage under Exhibit D-26 (24?) is concerned, we find no substance in the contention urged by Sri Kadidal Manjappa that there was no necessity for defendant-2 to alienate those two properties in favour of defendant-4. We have got to uphold that alienation.
12. Equally so when we come to the sale deed Exhibit D-24 (26?). S. No. 83 measuring 16 guntas, which fell to the share of defendant-2 which was sold by defendant-2 to defendant -1I for Rs. 800/-. The recitals in the sale deed,
*( '......................' )
This indicates that the alienation was necessitated for the purpose of discharging the antecedent debt due to Kapinigowda and Byregowda. Byregowda is none other than D.W. 13. He has stated that defendant-2 had obtained a loan of Rs. 300/- on a promissory note and repaid the same after selling his property. The alienation was found necessary for discharging the antecedent debts which have been proved. Plaintiffs, who are the sons of defendant-2, cannot disclaim their responsibility under the doctrine of pious obligation to bind themselves by the alienation. (See: : 1SCR955 , V. D. Deshpande v. Kusum Kulkarni).
13. This takes us to Ext. D-25. Mr. Vedanta Iyengar, learned Counsel for the respondents rested his contention on the recital therein and it would be useful therefore to set out the relevant portion of the deed :
*( '...........................' )
14. There is a twofold necessity set out in the above recitals- (i) the lands were said to have been sold for the purpose of purchasing new lands at Amruthur Hobli in Hosakere village and (ii) for the purpose of discharging the earlier mortgage debt of Rs. 600/- in respect of suit items Nos. 13 and 14 as per Ex D-24.
15. Mr. Vedanta Iyengar, learned Counsel for respondents 1 and 3 urged that these recitals are sufficient indication of the existence of the pressure on the estate for alienation and legal necessity and, therefore, no more evidence was required to be produced by the alienee. He also urged that so far as earlier mortgage Ex D-24 remains undisputed and undischarged the debt due there under must be considered as an antecedent debt and that itself would constitute a pressure on the estate.
16. It is true that the earlier mortgage under Ex D-24 was still subsisting when the properties under Ex D-25 were sold. The properties there under were only two small items- (i) Sy. No. 38/2 measuring in all 27 guntas and (ii) Sy. No., 45 measuring 3 guntas. If those properties were only sold under Ex .D-25 the submission of Sri Vedanta 1yengar would have been justified. There would be no necessity to go into the evidence adduced by the alienee. Under Ex. a25 defendant-2 sold to defendant 1 for the total consideration of Rs. 3,000/- the joint family properties he had received at the earlier partition including the residential house with Kaneshumari No. 26/1 with six 'ankanas'. It is under these circumstances the alienee has to establish that the alienation was either for discharging an antecedent debt or was made for legal necessity or for the benefit of the family. We cannot, on the face of Ex D-25 hold that the alienation was justified on account of antecedent debt due under Ex. D-24. As seen earlier only two items of properties -small in extent - were under mortgage. The existence of that mortgage in regard to two properties would not constitute sufficient pressure for the alienation of all other properties. The alienee in this case, therefore, had to establish one of the following two things- (i) the transaction was in fact justified by legal necessity or was for the benefit of the joint estate or (ii) he had made reasonable and bona fide inquiry as to the existence of the necessity and satisfied himself that the manager was acting for the benefit to the estate (see Mayne on Treatise on Hindu Law and Usage VII Edition P. 473).
17. There is another reason why we should hold that the alienation was not for any necessity. The alienation was of the year 1971. The suit was filed in 1972. It is settled principle that where the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. (see Mayne on Treatise on Hindu Law & Usage 7th Edn. P. 475).
18. Bearing mind these principles, we shall now turn to the evidence adduced by the alienee. Defendant- 1 has been examined as D.W. 1. He has stated:
'The 2nd defendant has mortgaged with possession the garden which had gone to his share, in favour of my son the 4th defendant. Again in 1963 or so he sold to me 18 guntas of land. Ex. D-24 is the sale deed he executed in my favour. Famine had broken out then. In order to maintain himself and his family, fie had to sell his land to me for Rs. 800/-. He had not incurred any loss earlier. I do not know about it Again in 1971 the property mortgaged in favour of 4th defendant was sold to me. Then the mortgage deed was taken by me from 4th defendant. Ex. a25 is the sale deed then executed by 2nd defendant in my favour. Ex. a24 is the usufructuary mortgage deed which was delivered to me. I deducted the mortgage amount from the sale consideration amount..............The talk about sale tinder Ex. D-25 had taken place 15 days earlier than the date of document. Then Kapanigowda and Siddegowda were also present. When document was got written Kapanigowda was present. The 2nd defendant told me that he was purchasing land at Hosakere and so he was selling. I did not enquire him as to who was willing to sell him.'
19. The first part of above narration from the evidence of D.W. ideals with mostly about Exs. D-24 and D-26 in respect of which we have already held that there was sufficient justification for the alienation thereunder.
20. The second part of the evidence which we have extracted above deals with only Ex. D-25. It will be seen there from that defendant2 just told defendant I that he was purchasing land at Hosakere and so he was selling. He admitted that he made no further enquiry about the proposed purchase. He also did not enquire from whom the proposed property was being purchased for how much and what extent. There is thus complete failure on the part of the alienee to make a reasonable and bona fide enquiry as to the existence of necessity for the alienation under Ex. D-25. Parties to the deed are not strangers. They are uterine brothers. It would not have been difficult for defendant-1 to make a closer enquiry with regard to the prospects of purchasing a new land by selling the existing estate in order to benefit the family. The very fact that defendant- 1 made no enquiry itself shows that he was totally unconcerned about the need necessitating the sale. There is no proof that defendant-2 at any time purchased new land subsequent to Ex. D. 25.
21. We cannot, however, confirm the alienation only in regard to items 13 and 14 which were also sold under Ex. D-25. Since there was no proper enquiry and since defendant- 1 has not discharged the onus cast upon him regarding the existing necessity to alienate all the properties under Ex. D-25, the entire alienation to the extent of the plaintiffs' share shall be held to be not binding on the plaintiffs.
22. Mr. Vedanta Iyengar, however, urged that in equity defendant- 1 should get the refund of the sale consideration in excess of the mortgage debt, since it becomes a debt with an obligation on the plaintiffs to pay their father's debt On this question as to refund of the sale consideration there is no unanimity of judicial opinion in the country. We do not therefore venture to express our view in the absence of proper pleadings and fuller examination of the question. We, therefore, leave that question open.
23. In the result, the appeal is allowed in part; the judgment and decree of the trial court are modified and the plaintiffs suit is decreed declaring that the alienation under Ex. D. 25 is not binding on the plaintiffs to the extent of their shares. It would, however, be binding to the extent of the share of defendant-2. The suit in regard to Exs. D-24 and D-26 is dismissed.
24. We direct the parties to bear their own costs.
25. The appeal has been filed in indigence. The court-fee payable on the memorandum of appeal shall be recovered by the Deputy Commissioner as if it is an arrear of land revenue.
26. A copy of the decree may be transmitted to the Deputy Commissioner, Tumkur, for necessary action.
27. Appeal allowed in part.