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Nelli Narasimha Reddy Vs. Vadla Krishnaiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 577 of 1972
Judge
Reported inAIR1975AP250
ActsHindu Law; Specific Relief Act, 1963 - Sections 38; Transfer of Property Act, 1882 - Sections 53A
AppellantNelli Narasimha Reddy
RespondentVadla Krishnaiah and ors.
Appellant AdvocateVasantha Rao Mukhedkar, Adv.
Respondent AdvocateK. Mahipathy Rao, Adv.
DispositionAppeal allowed
Excerpt:
..... the learned judge directed that the best course for the plaintiff is to sue for partition of the suit land and ask for allotment to him of that which on partition might be found to fall to the share of p. 8. on the other hand, the learned counsel for the defendants 1 and 2 argued that the only right of the purchaser like the plaintiff in this case is only to sue in a suit for general partition for adjustment of his equities and he cannot retain possession as against the other coparceners. the learned counsel argued that if a coparcener cannot obtain an injunction against another coparcener, an alienee from the coparcener cannot stand in a better position. so far, the law in regard to sale of undivided interest in a coparcenery has been well settled. the law is well settled as laid down..........for a perpetual injunction restraining the defendants from interfering with his possession of the suit land bearing r. s. no. 110 situate in karpamula village measuring 37 guntas. it was dismissed in the first court though many of the findings are in his favour and the decree has been confirmed in appeal. hence the second appeal. a few facts are necessary to understand the point arising in this appeal 2. the plaintiff purchased the suit land from vadla balanarayana, p.w. 4, who is the brother of the defendants 1 and 2 for rs. 500 under an agreement of sale dated 6-12-1960 marked as ex. a-1. p.w. 4 sold the property as manager of the joint family consisting of himself and his two brothers, according to the plaintiff, for a legal necessity. the plaintiff was put in possession of the suit.....
Judgment:

Venkatrama Sastry, J.

1. Plaintiff is the appellant in this Second Appeal. He filed the suit for a perpetual injunction restraining the defendants from interfering with his possession of the suit land bearing R. S. No. 110 situate in Karpamula Village measuring 37 guntas. It was dismissed in the first court though many of the findings are in his favour and the decree has been confirmed in appeal. Hence the second appeal. A few facts are necessary to understand the point arising in this appeal

2. The plaintiff purchased the suit land from Vadla Balanarayana, P.W. 4, who is the brother of the defendants 1 and 2 for Rs. 500 under an agreement of sale dated 6-12-1960 marked as Ex. A-1. P.W. 4 sold the property as manager of the joint family consisting of himself and his two brothers, according to the plaintiff, for a legal necessity. The plaintiff was put in possession of the suit land on the same date and he was in actual possession paying land revenue to the Government. On 9th August, 1970, when he went to the suit land to plough the same for purposes of cultivation, all the defendants came there in a body without any authority and, taking the law into their own hands, unyoked the ploughs of the plaintiffs and did not allow him to plough the land. Hence the plaintiff filed the suit for an injunction restraining the defendants from interfering with his possession.

3. Defendants 3 to 6 remained ex parte. Defendants 1 and 2 pleaded that the plaintiff has not purchased the land from their brother Balanarayana, that Balanarayana had no authority to sell the Land, that he was not the manager of the joint family, that the suit land is an ancestral balotha inam and the mother of the defendants 1 and 2 alone is the manager, that assuming that he was manager, there was no legal necessity, that the plaintiff colluded with the vendor and concocted the suit agreement, that as a matter of fact the plaintiff used to cultivate the suit land on lease on bathi basis, that as the plaintiff failed to cultivate the land, defendants 1 and 2 have sowed the seedlings in the suit land in Arudra Karthi, that the plaintiff was not in possession of the suit land in this year, that he did not go to the suit land on 9th August, 1970, that the defendants never unyoked his ploughs, that the plaintiff along with three others filed a petition in the Tahsil Office on 30-6-1970 that these defendants are interfering with his cultivation wherein he stated that he took the suit land on permanent lease some ten years back, that he has also filed another petition for the issue of a patta for the suit land on 10-2-1970 wherein he stated that he purchased the suit land on 6-12-1960, that it is not true that all inams are abolished and vested in the Government, that the Abolition of Inams Act of 1955 was repealed by 1967 Act and the same was struck down by the High Court on 31-3-1970, that the inam lands being Government lands cannot be alienated by the holder, that the relationship of the plaintiff and the defendants is that of landholder and tenant and therefore, the dispute has to be decided by the Revenue Court and the Civil Court has no jurisdiction to entertain the suit, that on the date of the filing of the suit, the plaintiff was not in possession of the suit land and so the suit for retention of possession does not lie, that the defendants are the owners of the land and so permanent injunction cannot be granted against the defendants, that the suit document is a sale deed and not an agreement and is inadmissible in evidence for want of proper stamp and registration and, therefore, the defendants prayed for the dismissal of the suit.

4. On the above pleadings, the trial court framed the following issues :

1. Whether the plaintiff purchased the suit land from Vadla Bala Narayana for Rs. 500 under an agreement of sale on 6-12-1960 as manager of the family for legal necessity?

(2) Whether the suit land is a Balwatha Inam and whether Bala Narayana in the capacity of Manager of ioint family has the authority to sell the land without the consent of other brothers and mother and he had any authority and sold the land for legal necessity?

(3) Whether the plaintiff is cultivating the suit Land on lease since nine years?

(4) What is the effect of the Abolition of Inams Act ever the suit?

(5) Whether the plaintiff was not in possession of suit land on the date of suit?

(6) Whether the transaction is sale or agreement of sale?

(7) Whether the deed dated 6-12-1960 is admissible in evidence?

(8) Whether the Court has jurisdiction to entertain the suit as the relationship between the plaintiff and defendants is that of tenant and landlord?

(9) If issue No. 3 is proved, whether this court is not competent to entertain the suit?

(10) To what relief?

5. The plaintiff examined P.Ws. 1 to 7 and filed his documents Exs. A-1 to A-3, On behalf of the defendants D.Ws. 1 to 7 were examined and Exs, B-1 to B-5 were marked. On the above evidence the trial court held that the sale by P.W. 4 of the suit land to the plaintiff is not for legal necessity and is, therefore, not binding upon the defendants 1 and 2 and that the plaintiff has not made even bona fide enquiry at the time of purchase of the suit land from P.W. 4 whether there was legal necessity for the said alienation. On the second issue, the learned District Munsif held that the suit land is an inam land which cannot be alienated by P.W-4 and the plaintiff cannot, therefore, get any title over the suit land under Ex. A-1. On issue (3) relating to the question whether the paintiff was holding the land as a lessee of the defendants, it was found that the defendants have not established that case. On issue (4) it was held that the suit land which is a belwatha inam was excluded by the Abolition Act, and, therefore, the Inams Abolition Act had no effect upon the present suit. On issue (5) relating to the material question arising in the suit, it was held that the plaintiff was in possession on the date of the suit and that the defendants unlawfully interfered with his possession and unyoked the ploughs of the plaintiff which gave the cause of action for the suit. On issue (6) it was held on a prior occasion by the trial court that the suit transaction is only a sale but not an agreement of sale. On issue (7) it was held that Ex. A-1 is admissible in evidence for a collateral purposes viz.. to show the nature of possession of the vendee. On issue (3), it was held that the lower court has jurisdiction to maintain the suit because the relationship of landlord and tenant has not been established. On issue (9), it was held that since the lease has not been proved, the Court was competent to entertain the suit. On issue (10) relating to the relief which the plaintiff was entitled to, the learned District Munsif held that since the alienation by P,W. 4 was not for legal necessity and therefore not binding upon the defendants 1 and 2 the plaintiff cannot invoke to his aid the benefit of Section 53A of the Transfer of Property Act, In the end, the suit was dismissed. It, is therefore, clear that though almost all the findings are in favour of the plaintiff, the suit was dismissed because of the finding that the alienation made by the manager of the family was not binding upon the defendants 1 and 2 in spite of the fact that it was found that the plaintiff was found in possession on the date of the suit.

6. The plaintiff carried the matter in appeal. The learned appellate Judge also confirmed the findings of the trial court relating to legal necessity and the binding nature of the same on defendants 1 and 2. It was also held that on the basis of Ex. A-1, the plaintiff cannot claim any right. As regards the plea under Section 53A of the Transfer of Property Act in support of his right to maintain the suit, the learned Judge held that even if it is held on the authority of Achayya v. Venkatasubbarao, AIR 1957 Andh Pra 854 at p. 857 that though the plaintiff is entitled to the benefit of Section 53A since the plaintiff was only a purchaser of a coparcener's undivided interest in a joint Hindu family, he is not entitled to a permanent injunction restraining the defendants 1 and 2 who are the other co-owners, from interfering with his possession of the suit land which is the common property of the vendor of the plaintiff and the defendants simply because he purchased it from the manager. It was also held that the plaintiff who would be entitled only to the extent of the undivided interest of the vendor in the suit land, is not entitled to possession of what he has purchased and, therefore, he is not entitled to be granted an injunction restraining the other coparceners from entering into the suit land. The learned Judge directed that the best course for the plaintiff is to sue for partition of the suit land and ask for allotment to him of that which on partition might be found to fall to the share of P.W. 4 whose share he would be entitled to under Ex. A-1. With that observation, the appeal was dismissed.

7. In this second appeal preferred by the plaintiff, the learned counsel for the appellant submitted that in view of the finding that the plaintiff was in possession of the suit land on the date of the suit and in the absence of any suit by the defendants 1 and 2 to recover possession of the property from the plaintiff on the ground that the alienation is not binding upon them, the lower court should have granted him an injunction and a refusal of the injunction on the ground that even though the plaintiff is able to justify his stand under Section 53A of the Transfer of Property Act is not warranted. The mere fact that the alienation is not binding on the defendants 1 and 2 is not a ground according to the learned counsel to refuse an injunction in his favour so long as he is in possession.

8. On the other hand, the learned counsel for the defendants 1 and 2 argued that the only right of the purchaser like the plaintiff in this case is only to sue in a suit for general partition for adjustment of his equities and he cannot retain possession as against the other coparceners. The learned counsel argued that if a coparcener cannot obtain an injunction against another coparcener, an alienee from the coparcener cannot stand in a better position. No person, according to the learned counsel, can file a suit against a true owner for injunction. The plaintiff also cannot invoke to his aid Section 53A for purposes of sustaining the suit.

9. The finding given by the trial court that the plaintiff has been in possession on the date of suit has not been reversed by the Appellate Court. It must, therefore, be taken that the plaintiff was in possession when he came to court with a prayer for injunction. It has also been held that Ex. A-1 was treated as a sale deed and not having been stamped and registered, it was inadmissible in evidence. But it was held that it can be looked into for collateral purposes viz. for the purposes of assertaining whether the plaintiff was in possession on the date of the suit. This is a case where the manager of a joint Hindu family has alienated a specific item of property to the alienee i.e. the plaintiff. The other coparceners, viz. the defendants 1 and 2. have not questioned this alienation from 1960 to 1970. The alienor. as P.W. 4, supported the alienation. The alienee has been in possession from 1960 to 1970. The case set up by the defendants 1 and 2 that the plaintiff was a lessee of the suit land has been negatived. It must, therefore, be upheld that the possession held by the plaintiff was as a purchaser under Ex, A-1 and not as a lessee.

10. The next question that arises is. whether the plaintiff can protect his possession by obtaining an injunction in a court of law against a non-alienating coparcener, when he tries to interfere with his possession. This depends upon the provisions of Hindu Law. Mulla, in his treatise on Hindu Law, 13th Edition, at pages 292 and 293 deals with the rights of the purchaser of coparceners' interest. According to the learned author, as per Mitakshara Law prevailing in Bombay, Madras and Madhya Pradesh, a coparcener may alienate his undivided interest in the entire joint family property, or his undivided interest in a specific property forming part of the joint family properties. But he has no right to alienate, as his interest, in any specific property belonging to the coparcenery, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. The purchaser of an undivided interest of a coparcener in a specific property at a private sale or sale in execution does not acquire a right to joint possession with the other coparceners. He acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, and had he been so minded. before the sale of his interest took place. That right which is obtained by the purchaser can only be enforced by a suit for a general partition to which all the coparceners must be joined as parties. In such a suit, the purchaser may ask the court to allot to his vendors the specific property sold to him and the Court may allot that property to him if the interests of the other coparceners are not thereby prejudiced. So far, the law in regard to sale of undivided interest in a coparcenery has been well settled.

11. Where the purchaser has not obtained possession, but claims the whole property as his own, the non-alienating coparceners may sue him for declaration that he is entitled to no more than the undivided interest of the alienating coparcener. The learned author continues as follows:--

'If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor. The purchaser is not entitled in such suit to an order for partition either of the specific property sold to him or of the joint family properties in general. He must, if he wants to realise his vendor's interest, bring a suit of own for a general partition. Where a suit therefore is brought by the non-alienating coparceners for possession, the proper decree to be passed would be an order directing the purchaser to deliver possession to the plaintiffs of the whole property, and declaring that the purchaser is entitled to a declaration that he has acquired the undivided interest of his vendor in the property and that he is entitled to take proceedings to have that interest ascertained by partition. But to protect the purchaser a further direction is added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for a specific period, and if before the expiry of that period the purchaser brings a suit for general partition against the plaintiffs then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled.'

12. We are now concerned with a situation which is discussed in the passage extracted supra, Here is a case where the purchaser had obtained possession and is now seeking to protect his possession. If the non-alienating coparceners had filed a suit against the plaintiff for recovery of the whole property, they would certainly have been granted a decree for recovery of the whole property after declaring the right of the plaintiff that he is entitled to the alienor's share and staying the execution of the decree for some time during which the plaintiff might bring a suit for general partition. It means that the possession of the plaintiff would have been continued even in the case of such a suit by the non-alienating coparceners for some time more in order to enable the plaintiff to file a suit for general partition. It is not the law that non-alienating coparceners can straightway walk into the land and recover possession of the property without regard to the rights of the purchaser in the suit land. The learned author cites, in support of the above proposition, the Bench decision in Kandasamy Udayan v. Velayutha Udayan. ILR 50 Mad 320 = (AIR 1926 Mad 774). In that decision, a direction was given in the following terms:--

'We therefore dismiss the Letters Patent Appeal with costs and direct that the execution of the decree in plaintiffs' favour be stayed for three months and if before the expiry of that period the appellant brings a general suit for partition then the stay would continue till the disposal of the suit for partition but if no such suit for partition is brought then the stay of execution will stand cancelled.'

The citation in the Mulla's treatise is, therefore, supported by ample authority.

13. The learned counsel for the respondents relied upon the Full Bench decision in Permanayakam v. Sivaraman, : AIR1952Mad419 . It is true that the Full Bench discussed elaborately all the principles relating to the rights of the purchaser of a coparcener's interest. But we do not find the point arising in this case, viz. whether the purchaser can defend his possession so long as he was in possession, has arisen in that case, nor was it considered. The law is well settled as laid down in that decision and in Sidheshwar Mukherjee v. Bhubneshwar Prasad, : [1954]1SCR177 and V.C. Thani Chettiar v. Dhakshina Murthy Mudaliar. : AIR1955Mad288 .

14. In Subbe Goundan v. Krishnamachari, AIR 1922 Mad 112. their Lordships Kumaraswami Sastri and Devados, JJ. were also dealing with the case of a coparcener filing a suit for possession. Their Lordships held that possession must be decreed declaring the right of the purchaser to a partition. In the course of the discussion, at page 117, their Lordships referred to the decision of Hardei Narain Sahu v. Ruder Perkash Misser, (1883) ILR 10 Cal 626 wherein a decree was passed by the High Court permitting the alienee to retain one-third share of the land which was not upset in that decision.

15. In view of the aforesaid law as stated by Mulla and as supported by the decision of the Bench in (AIR 1926 Mad 774) (supra), I am of the view that the plaintiff, who is an alienee from one of the coparceners in respect of the specific item of property (not an undivided share but the whole of it) can maintain his possession so long as there is no attempt made by the non-alienating coparceners to recover possession of the property from him in due course of law. In Bhau v Budha Manku, ILR 50 Bom 204 = (AIR 1926 Bom 399) it was held by a Bench of the Bombay High Court that a purchaser out of possession should not be given joint possession with the other coparceners but should be left to his remedy of a suit for partition. But, if he is already in possession and a suit for recovery of possession is brought by an excluded coparcener, the purchaser need not necessarily be ejected; the Court has discretion to declare Mm entitled to hold pending a partition as a tenant-in-common with the other coparceners. But this view as applied in our State that he is entitled to joint possession, does not appear to apply here. But the principle that he may be permitted to retain possession before a general suit for partition is filed seems to get support from this decision as well.

16. On the authority of AIR 1957 Andh Pra 154 the appellate Court also has held that the plaintiff is entitled to the benefits of Section 53A of the Transfer of Property Act. If so, he is entitled to protect his possession till the general suit for partition is filed. As already stated, if the non-alienating coparceners file a suit for recovery of possession the law says that they are entitled to a decree subject to a declaration in favour of the plaintiff. But, until that is done, I do not see how the plaintiff's possession can be disturbed.

17. It is argued by Mr. Mahipathi Rao, learned counsel for the respondents, that pending the first appeal before the lower Appellate Court, on account of the expiry of the period of injunction his clients got into possession and, therefore, an injunction cannot now be granted. What has happened pending the appeal before the determination of the final appeal is not a matter that can be taken into consideration in deciding the rights of the parties.

18. In the above view, I am satisfied that the plaintiff is entitled to an injunction as prayed for against the defendants. The suit of the plaintiff has therefore, to be decreed with costs throughout. The Second Appeal is allowed accordingly. Leave granted.


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