1. This is an appeal from the preliminary decree in a suit for partition of properties belonging to a joint Hindu family consisting of defendants 1 to 3 of whom the 1st defendant is the father the 3rd defendant the mother and plaintiff and 2nd defendant the sons. Besides the two sons there were 3 daughters also, all of whom have been married long before the date of the suit.
According to the plaintiff all the properties described in Sch. B of the plaint belonged to the joint family the major portion having been obtained under an earlier partition and the rest being acquisitions by the 1st defendant with the income of the properties obtained in partition. It is alleged in the plaint that the 1st defendant alienated all the properties under several deeds to defendants 4 to 53.
The plaintiff was a student till 1932 and thereafter he was working outside the State in various places. He came back in December 1948 when he found that all the properties had been alienated. The 1st defendant had executed a power of attorney in favour of the 2nd defendant and the latter influenced the father to dispose of the properties. It is also stated that the alienations arc not binding on the plaintiff as the same are not supported by consideration or valid necessity.
The plaintiff therefore claimed partition and recovery of one third of the properties, free of encumbrance, and also mesne profits at the rate of 100 paras of paddy and Rs. 1000 per annum. Of the contesting defendant it is necessary to state the contentions of defendants 6, 8, 10, 15, 16, 21 and 30 only whose contentions are more or less similar. According to these defendants all the properties in schedule B did not belong to the joint family. The alienations were made because all the Brahmins in the locality where the family was residing left the place and it therefore became necessary for this family to sell the properties and go and reside elsewhere.
It is further contended that all the alienations were made for consideration and legal necessity or benefit to the family and that the alienations were made with the knowledge and consent of the plaintiff. Even if the alinations are not binding on the plaintiff's share, the same would be liable for the proportionate share of the sale consideration paid, on the principle of pious obligation. Some of these defendants who were tenants of the property before taking sale deeds urged that even if the alienations in their favour were found to be invalid, partition could be allowed only subject to their tenancy rights.
The 22nd defendant who purchased items 1 to 11 from the 3rd defendant and items 32 to 39 from the 1st defendant had a special contention that items 1 to 9 belonged absolutely to the 1st defendant and not to the joint family and that the 1st defendant had conveyed items 1 to 11 to the 3rd defendant from whom he purchased the same. Items 32 to 39 were also stated to be the private acquisitions of the 1st defendant. He also raised a plea of limitation and adverse possession.
The 8th defendant contended that items 16 to 19 in schedule B were the private acquisitions of the 1st defendant, The court below held that all the properties belonged to the joint family, that all the alienations except Exts. B21 and B23 were unsupported by consideration and necessity and were invalid and that partition could be allowed subject to the tenancy right that some of the alienees had in the properties purchased by them.
A preliminary decree for partition was accordingly passed, directing that the properties other than those covered by Exts. B 21 and B 23 be partitioned, that as far as possible the plaintiff be given his share without prejudice to the rights of the alienees and that the question of mesne profits be determined at the stage of the final decree. Defendants 6, 8, 10, 15, 16, 21 and 30 have preferred this second appeal from the decree.
2. The first point raised by Shri Sundara Iyer, learned counsel for the appellant relates to the special contention of the 22nd defendant regarding items 1 to 9 in schedule B, that these items belonged to the 1st defendant, having been acquired by him with his private funds and that the joint family had no claim to the same. The 1st defendant conveyed these properties to his wife the 3rd defendant and it was from the latter that the 22nd defendant purchased the same.
It is further contended that the plaintiff was aware of the assignment of these properties by the 1st defendant to the 3rd defendant and that the suit in respect of these items is barred by limitation and adverse possession. The plaintiff's case on the point is that though these properties stood in the name of the 1st defendant he was in possession of joint family funds at the time these were acquired and that the same should be deemed to have been acquired from the family.
It is further stated by the plaintiff that he was residing outside the State from the year 1934 and that the properties though transferred in the name of the 3rd defendant continued to be in the possession of the joint family. It is admitted by the plaintiff that items 1 to 9 in schedule B were acquired in the 1st defendant's name under Exts. B11 dated 12-12-1907 and B12 dated 10-12-1907. The partition deed whereunder the first defendant and his two brothers divided joint family properties is Ext. Al dated 13-9-1907. Exts. B11 and B12 were thus acquired within three months of the date of the partition deed.
3. Shri Sundara Iyer relied on the fact that the 1st defendant had properties of his own on the date of the partition deed and that he was thus in possession of funds apart from what he obtained under Ext. A-1. It is stated in Ext. Al that the 1st defendant who is the second party therein had private properties of his own and that the same were not included in the partition deed.
Though the exact extent of such properties is known, it is clear from Ext. Al that he must have been in possession of some properties at that time. Reference has been made to the fact that items 1 to 9 were acquired shortly after the partition deed. There is no reliable evidence in the case regarding the income obtained in the year 1907 from the properties allotted to the 1st defendant nor is it possible to find that such income which consisted of paddy and cocoanuts was available at the time of taking Exts. B11 and B12.
The acquisitions of these properties cannot therefore be treated as one made by the manager of joint family who had private funds as well as funds belonging to the family at the time of the acquisition. Thai the members of the joint family treated these properties as the private acquisitions of the 1st defendant can also be seen from the fact that no protest was made regarding the assignment of the same to the 3rd defendant under Ext, Bl dated 26-5-1934.
The plaintiff, no doubt, has a case that he was not aware of the execution of Ext. Bl but we are unable to accept the same. It is seen that after obtaining Ext. Bl, the 3rd defendant took a release deed Ext. B2 from a tenant on 1-2-1936 and executed a fresh release deed Ext. B3 to the same tenant on the same date. Thus the tenant was made to attorn to the 3rd defendant. It is also seen from the evidence that the 3rd defendant got the property registered in her name in revenue records as seen from Exts. B4 to B6, Ext. B6 being the Patta obtained by her.
It is admitted that the plaintiff was residing in the family house for some time in 1934. Exts, A4 and A5 are two deeds executed by the 1st defendant, the plaintiff and the 2nd defendant in August 1934 in respect of family properties. Ext. Bl was executed about 3 months before the execution of Exts. A4 and A5. The family was obliged to part with some properties in August 1934 for clearing debts which shows that the financial position of the family at that time may not have been very satisfactory.
The plaintiff who participated in the execution of Exts. A4 and A5 could not have been unaware of the fact that items 1 to 9 in schedule B had been conveyed to his mother. This transaction was not questioned by the plaintiff till this suit was filed and he may not have questioned it at all if the 3rd defendant had not sold the properties to the 22nd defendant. It is seen from the circumstances stated above that items 1 to 9 belong to the first defendant absolutely and that the execution of Ext. Bl was with the knowledge of the plaintiff and that he ratified the same by acquiescence.
These properties, along with items 10 and 11, were purchased by the 22nd defendant from the 3rd defendant under Ext. B7 dated 23-1-1947. So far as items 10 and 11 which are also included in Ext. B7 are concerned, these stand on a different footing. Item 10 is the building situated in item 11 and according to the plaintiff item 10 was obtained by the 1st defendant under Ext. Al in which these are items 41 to 43 and 351.
This fact is not seriously disputed by the 22nd defendant. There is however some controversy regarding the building in item 11 which was in existence on the date of Ext. B7. According to the 32nd defendant this was constructed by the 1st defendant with his own fund in place o an old building which stood in the property. The building in item 10 was the house where the family resided until it was sold under Ext. B7. At the time of construction of the new building the 1st defendant was admittedly the manager of the joint family, in possession of family properties and the fact that it was constructed in the garden where the family residence stood shows that it was intended for the joint family.
The considerations which arise in respect of items 1 to 9 do not therefore apply to items 10 and 11 and the sale of items 10 and 11 cannot be supported. The 22nd defendant is not therefore entitled to claim exclusion of items 10 and 11. However, in view of our conclusion that items 1 to 9 belonged to the 1st defendant and were conveyed as early as 1934 to the 3rd defendant, the 22nd defendant is entitled to succeed in respect of those items. Ext. B7 must therefore be upheld so far as it relates to items 1 to 9 in schedule B.
4. The next question for decision is whether the alienations are binding on the plaintiff. The learned Judge found that Exts. B21 and B23 were supported by consideration and necessity and were therefore binding on the plaintiff's share also. As regards the other alienations it was found that same were not supported by legal necessity or benefit to the family.
The necessity pleaded by the contesting defendants is that all the other Brahmins who were residing at Srinarayanapuram left the place, that it became difficult for this family to continue to reside there in the absence of members of their community and that the alienations were made so that they could go and reside elsewhere. Apart from the question whether this would be a valid necessity, it has to be stated that there is no satisfactory evidence that all the Brahmins had left the locality.
It is in evidence that there is a Hindu temple at Srinarayana Puram and that there are still some Brahmin families there. P. W. 4 is a Sarswath Brahmin who resides there with his family. It is stated that the 1st defendant left the locality in 1943. Several of the alienations were made after 1943, so that it is clear that the purpose of such alienations was not the one pleaded by the defendants. There is the further fact that most of these properties were in the possession of tenants so that the income could have been obtained even if the family was not residing in the locality.
The defendants have no case that these properties were sold in order to acquire other properties yielding a higher return or situated in the vicinity of the family house. Learned counsel for the appellants did not cite any decision in which such a ground has been upheld as a valid necessity. Whatever might have been the position in ancient times it cannot be said that in these days the absence of other Brahmin families in the immediate neighbourhood is an unsurmountable obstacle for the purpose of conducting religious ceremonies etc.
In these circumstances we are unable to uphold the defence that the alienations are supported by legal necessity. We agree with the trial court in holding that all the alienations of joint family properties made by the 1st defendant other than Exts. B21 and B23 are liable to be set aside to the extent of the plaintiff's share as the same are not supported by necessity.
5. Another point raised by Shri Sundra Iyer is that the alienations were made with the consent of the plaintiff and that he is not entitled to question the same. The evidence on this point was not accepted by the trial court. In this connection it has to be mentioned that when certain alienations had to be made in the year 1934 to discharge debts, the plaintiff was also made to join the execution of the relative deeds.
This was not done in the case of the alienations impeached in this suit. If the plaintiff was actually present and gave his consent to these transactions it is difficult to understand why he was not made to join in the execution of the deeds or at any rate to figure as an attestor. Almost all the alienations were made between the years 1942 to 1947 and there is no reliable evidence that the plaintiff was present at the time of these alienations.
Items 40 to 44 were sold in 1942, items 13, 45, 48 to 52 in 1943, items 14 to 21, 46, 47, 56 and 57 in 1944 and items 22 to 31 in 1945. D. Ws. 2 to 4 have stated that the plaintiff was present at the time of several of the transactions. D. W. 2 deposed that he negotiated for the sale of several of the properties and that he was an attestor to Exts. B16 to B18, B20 to B22 & B31. He added that the defendant alone executed these documents as the plaintiff and the 2nd defendant said that would suffice. D. W. 3 is the son of the 29th defendant who took Ext. B23.
We have already stated that Ext. B23 is supported by necessity and is not liable to be set aside. Though he says that the plaintiff was present when Ext. B23 was executed, he admitted that the plaintiff was employed in some place outside the State and that he does not know when the plaintiff came back. D. W. 4 was not sure whether the plaintiff was employed outside the State at any time.
He said that he used to meet the plaintiff once in about 6 months and that the plaintiff himself told him sometime in 1120 that they were selling all their properties in order to leave the place. D. W. 5 is an attestor to Exts. B7 and B25 taken by the 22nd defendant. He said he accompanied the 22nd defendant when the latter went to inspect the properties before the date of the sale and that the 1st defendant and his sons were there at that time.
He further stated that the plaintiff and the 2nd defendant were present when these documents were executed. According to his own version he is a friend of the 22nd defendant and the fact that he accompanied the plaintiff when he went for the inspection of the properties shows that he is very much interested in the 22nd defendant. In considering the evidence of these witnesses it is important to note that if the plaintiff was actually present he could at least have been made to attest the deeds in question.
That also was not done. We do not place any reliance on the oral evidence of these witnesses so far as the presence of the plaintiff at the time of the execution of the deeds is concerned. In these circumstances we are unable to accept the argument that the disputed alienations were made with the plaintiff's consent.
6. The last point raised on behalf of the appellant is that in any view of the case the plains tiff's share should have been made liable for the proportionate consideration paid by these alienees on the principle of pious obligation. The argument is that when the father sells family property without legal necessity and the sale is set aside at the instance of other coparceners, the father becomes liable to return to the vendee a proportionate part of the consideration and that this obligation being a debt of the father, the sons are bound to discharge the same.
The learned subordinate Judge held that the claim based on the rule of pious obligation should be enforced in a separate suit in which it would be open for the plaintiff to question the debt on the ground of illegality or immorality. It is not disputed that until the alienation is set aside the liability of the father is only a contingent one and that it becomes a present liability only when the alienation is set aside. Reliance was placed by the appellant's counsel on the decision of Full Bench of the Madras High Court in Lingayya v. Punnayya, AIR 1942 Mad 183.
That was a suit by a vendee against the sons at whose instance an alienation by the father had been set aside, to recover the proportionate share of the consideration for the sale. Reference to the Full Bench was made in view of an earlier decision of Wallis C. J. and Seshagiri Ayyar J., in Srinivasa Ayyangar v. Kuppuswamy Ayyangar, ILR 44 Mad 801: (AIR 1921 Mad 447).
That was a suit by a son during the life time of his father to set aside the alienation of family property by the latter and for partition and the question which had to be decided was whether the son was entitled to a decree of his share without being required to refund the proportionate share of the consideration received by his father from the alienees. It was held that the son was entitled to recover his share without any obligation to refund the share of the consideration.
Leach C. T., who delivered the leading Judgment in AIR 1942 Mad 183 (FB). held that if the judgment reported in ILR 44 Mad 801: (AIR 1921 Mad 447), had stopped there and had not made certain observations beyond the immediate question which had to be considered in that case, this controversy would not have arisen. The observations referred to were made in the judgment of Seshagiri Ayyar J., regarding the inapplicability of the principle of pious obligation in modern times.
The decision of the Full Bench shows that the view held in ILR 44 Mad 801: (AIR 1921 Mad 1447), that the son was entitled to recover his share without any obligation to refund was correct and this decision cannot therefore be of any help to the appellants here. The father is alive, and in view of the decision setting aside the alienations he may pay the debt which has arisen by reason of the decree in this suit.
In case he does not pay the same it will be time enough to consider whether the son is liable to pay the debt on the principle of pious obligation. There is thus no justification to make a direction in this decree that the share of the son shall be liable for the proportionate share of the sale consideration. This point is therefore repelled.
7. In the result we modify the decree of the trial court to this extent, namely, that Ext. B7 is upheld so far as, the sale of items 1 to 9 in schedule B of the plaint 'is concerned. The plaintiff's 'claim to a share in those properties is disallowed. The decree is confirmed in other respects. The appeal is allowed to the above extent and is dismissed in other respects. We direct both sides to bear their costs in this court.