1. This appeal under Letters Patent has been filed against the judgment of a learned single Judge of this court in A.S. 36 of 1970, wherein the learned Judge has confirmed the findings of the trial Judge, that in so far as the purchase of items 10, 11, 35 and 37 of the suit properties by the 9th defendant they were not supported by tarwad necessity. Aggrieved by their judgment, the 9th defendant has preferred this appeal.
2. Plaintiffs-respondents 1 to 3 herein filed O. S-9 of 1968 on the file of the District Judge of Kanyakumari at Nagarcoil praying for partition and separate possession of their share in the tarwad properties. In seeking the relief of partition, they assailed the alienations of several items of tarwad properties effected by the adult members during their period of minority. The trial Court sustained the case of the plaintiffs and found that they would be entitled to a 3/10 share in the suit properties and consequently, granted a decree for partition in respect of that share.
3. Against the judgment of the trial court, defendants 7, 9, 18, 23, 24, 28, 29, 30, 32, 40, 42 to 44, 34 and 20 preferred A.S. No. 36 of 1970, which was heard by Ramanujam J. Two contentions were raised before the learned Judge; one of them was that a partition had taken place between the branches of the tarwad in the year 1958 under Ex. A. 15 and by reason of that partition, the plaintiffs will not be entitled to claim partition and challenge the alienations of other items of properties, which have not been awarded to the share of their sub-tarwad, under Ex.A 15. Ramanujam J. accepted the contention and held that a distinction has to be made between the pre-partition alienations and the post partition alienations, that in respect of pre-partition alienations, the plaintiffs can challenge the same on the ground that the alienations are not for tarwad necessity and that in respect of the post partition alienations, they can challenge them only if the alienations related to the properties allotted to them. The second contention before the learned Judge related to the merits of the defence put forward by the various alienees in justification of the sales, effected by them. For the purpose of this appeal, we are only concerned with the case put forward by the 9th defendant, who, as already stated, is the appellant herein. As has been mentioned above, the 9th defendant had purchased items 10, 11, 35 and 37 under Ex.A.5 sale deed. The consideration for these four items of properties is 10500 fanams. It was recited in Ex.A.5 that 3000 fanams were to be paid for obtaining the release of a mortgage from one Arulanandam, that 1150 fanams were reserved for redeeming a mortgage of item 5, 285 fanams were reserved for redeeming a mortgage of item 35, and the balance of 6065 fanams was paid in cash 'for the purpose of acquiring properties' in the names of the vendors and the minors, While the plaintiffs contended that the sale under Ex.A.5, had not been effected for consideration and tarwad necessity, the 9tb defendant set up a defence that the sale had been effected for tarwad necessity and therefore, the alienations in his favour were binding on the minors and they could not be set aside.
4. After considering the documentary and oral evidence in the case, the trial Judge held that items 10 and 35 had been redeemed in accordance with the recitals in Ex.A.5 however there was no proof that 3000 fanams
had been paid for redeeming the mortgage in favour of Arulanandam and that there was also no proof that 6065 fanams intended for purchase of other properties had been paid to the vendors. There appears to be a mistake in the finding rendered by the learned trial Judge, because the plaintiffs had not let in evidence to prove that 6065 fanams had not been paid to the vendors on the date of sale. Evidence had been let in to show that 3000 fanams received for discharge of the mortgage in favour of Arulanandam had not been paid
and that had led to the mother of the plaintiffs filing a suit, O.S.670 of 1953 on the file of the District Munsif, Padmanabhapuram for recovery of the balance of the sale price due under that head. It is borne out by records that the suit had been subsequently compromised. The learned trial Judge has held that there was collusion between the 9th defendant (appellant herein) and the guardian of the minors, and hence Ex.A.5 sale deed cannot be held to have been executed for consideration or tarwad necessity. He therefore held that the sale is liable to be set aside and accordingly granted the relief of partition to the paintiffs.
5. While disposing of A.S. 36 of 1970 Ramanujarn J. has observed as follows -
'It has been found on evidence by the court below that though the alienee undertook to obtain the release of the mortgage from Arulanandam, the mortgage was not in fact released and that the plaintiffs' mother later had to file a suit for realising that amount but the suit came to be settled out of Court. It has not also been shown by the alienee that any property has been purchased for the tarwad with 6065 fanams alleged to have been paid to the vendors. It has not been proved that the two mortgages for which the balance of consideration is said to have been utilised had been redeemed. Therefore, on these facts, the lower Court found that Ex.A.5 sale also cannot be held to be supported by tarwad necessity. I have no reason to disagree with the finding of the court below as regards these items'.
Mr. Thiagarajan learned counsel for the appellant, contends that the finding of the learned single Judge that the redemption of the two mortgages, for which the balance of consideration is said to have been utilised, has not been proved, is not a correct finding, because the trial Judge has rendered a finding on that matter in favour of the 9th defendant. We are inclined to sustain this contention, because we find that the trial Judge has in fact rendered a finding that 1150 and 285 fanams had been utilised for the discharge of mortgages over items 10 and 35 respectively.
6. The next Submission of Mr. Thiagarajan is that 3000 fanams reserved for obtaining the release of the mortgage from Arulanandam whould also have been paid by the 9th defendant at a subsequent point of time. In support of this plea. the counsel points out that the mother of the plaintiffs had filed a suit as borne out by Ex. A.97 for recovery of money due under this head. The suit had been subsequently compromised and the counsel would say that the mother would not have entered into a compromise unless she had been paid the sum of 3000 fanams, which had to be paid by the vendee for obtaining the release of the mort0age from Arulanandam. On the other hand, the respondents' counsel would say that when the trial Judge has given a finding that there has been collusion between the 9th defendant and the plaintiffs mother the court cannot attach my weight to the compromise entered into between the parties in O.S.670 of 1963. For the purpose of this appeal, we do not think it necessary to go into the question whether the 9th defendant had discharged his obligation of paying 3000 fanams by having the amount paid to the plaintiffs' mother when she filed the suit for the ultimate purpose of getting a release of the mortgage executed in favour of Arulanandam.
7. We will proceed on the basis that the stand taken by the appellant in this behalf is also sustainable. Even then, we have to see whether the sale effected under E-x.A.5 is legal and valid and sustainable in law. As we have stated above, the major portion of the consideration viz. 6065 fanams is said to have been paid to the Vendors for the purchase of other items of properties in the name of the vendors and the minors. There is no evidence in the case to show that other item or items of properties had in fact been purchased by the vendors in compliance with the recitals contained in Ex.A.5. Now the question for consideration is, whether in the absence of proof of purchase of other item or items of properties, the 9th defendant can seek to justify the sale in his favour on the ground of tarwad necessity. Ramanujam J. had held that since the 9th defendant has not shown that any property had been purchased for the tarward necessity with 6065 fanams mentioned in Ex.A.5, the sale cannot be said to have been effected for tarwad necessity. Mr. Thiagarajan assails the finding of the learned Judge on this aspect of the matter and states that it is not possible for the alienee to exercise control or supervision over the alienor and see to it that another item of property was purchased from out of the sale consideration and such being the case, it will not be just to hold that since the alienee has not proved the purchase of property by the vendor, the sale transaction in his favour should fall on the ground that it was not for tarwad necessity or the benefit of the family. In support of this contention, Mr. Thiagarajan invited our attention to Muthusami Pillai v. Sandana Valan : AIR1927Mad649 . In that case, a father sold an Item of property for Rs. 2000, and it was mentioned in the sale deed that the sale transaction was being entered into for the beneficial purpose of the family, viz, to purchase a more productive land than the one that was sold. It was however, found that no such land was in fact purchased and the minors, who questioned the alienations, were not benefited by the transaction of sale. Even so, a Bench of this Court accepted the finding of the Subordinate Judge that the sale transaction had been entered into with intent to benefit the family and therefore, the finding on the issue 'whether the sale was an act calculated to benefit the family should be found in favour of the alienee. We do not derive any light from this judgment because it has been rendered with reference to the peculiar facts of that case.
8. Mr. Thiagaraian, then cited Radhakrishnadas v. Kuluram : 1SCR648 . In that case, the question was whether a sale of joint family property for Rs. 50,000 could be sustained when the sale was justified by necessity only to the extent of Rs. 45000. The argument put forth before the Supreme Court was that for the balance of the sale price of Rs. 5000 legal necessity had not been established and therefore the sale transaction was liable to be set aside. The Supreme Court referred to the judgment of the Privy Council in two cases, viz. Sri Krisnnadas v. Nathuram and Niamat Rai v. Din Dayal , and held as follows -
'It is well established by the decisions of the courts in India and the Privy Council that what the alienee is required to establish is legal necessity for the transaction and it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity.'
Though this decision lends apparent force to the contention of Mr. Thiagarajan, we find that the ratio cannot be applied to this case, because there is a marked difference between cases where the sale of a property belonging to a joint Hindu family is effected for purposes of necessity on the one hand and for purposes of family benefit on the other. If the sale had been effected for the purpose of necessity, then all that the alienee will have to prove is the existence of the necessity, which impelled the vendor to effect the sale. It is not obligatory on him to prove that the necessity was fulfilled in accordance with the recitals contained in the sale deed. This is because of the fact that the alienee cannot effectively control and direct the actions of the vendor. The Privy Council has observed in Sri Krisnnadas v. Nathiram as follows --
'the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the managements himself'
On the other hand, we have another line of decisions, where the obligation of the alienee to prove the application of the sale price for purposes intended for the benefit of the family, has been set out. We may only cite a Bench decision of his court in Sengoda Goundan v. Muthuvelappa Gounden : AIR1955Mad531 , in this behalf. In that case, the alienation of certain items of family properties was challenged on the ground that they were not supported either by necessity of for the benefit of the family. In respect of certain alienations, the alienee could not prove that the sale was supported by necessity. Therefore, an alternative plea was taken that the sale was intended for the benefit of the family. But the alienee was not able to prove that the sale price had been used for the purchase of another item of property for the, benefit of the family. Taking note of that fact, the Bench held as follows --
'In the absence therefore of any proof of utilisation of the sale proceeds in the purchase of other property for the family, we must hold that the alienations were not for the benefit of the family. We agree with Subba Rao J. that the alienations were not for the benefit of the family and therefore were not binding on the plaintiff.'
Therefore the view taken by Ramanujam J. that since the 9th defendant had not proved the utilisation of 6065 fanams for purchase of another item of property for the benefit of the family the sale cannot be held valid, is fully in accordance with law.
9. We may also refer to a judgment of Ramanujam J. in Krishnasami Naidu v. Velumani 1974 TNU 139 where the learned Judge has held that in case of alienations for family necessity, the alienation can be upheld even if the sale consideration had not been utilised as was expected of the Manager at the time of entering into a transaction as the alienee need not look to the proper application of the sale proceeds-, but with regard to alienations for purpose of family benefit, the alienee has to prove that the sale consideration was actually utilised for the purpose of purchasing other lands for the benefit of the family and in the absence of such evidence, the alienation cannot be taken to be beneficial for the family.
10. Mr. Thiagarajan then contended that the plaint does not proceed on the basis that the sale was not for the benefit of the family, but it proceeds on the basis that the sale was not for consideration and tarwad necessity. Hence, he would say that since 4435 fanams have been utilised for discharging three mortgages, it must be held that the sale was for tarwad necessity. We are unable to accept this contention. We may refer to Regulation 25 of the amended Nair Ragulation, 1100 which Governs the parties where it is stated as under -
'Except for consideration and tarwad necessity and with the written consent of all the major members of the tarwad, no Karnavan or other managing member shall sell tarwad immovable property or mortgage it with possession for a period of more than twelve years, or lease it for a period of more than twelve years.'
Therefore, the regulation would also take in a case of a sale, where a major portion of the sale consideration is not for tarwad necessity, but for the purpose of benefit for the family. For the aforesaid reasons, we are in complete agreement with the view taken by the learned single Judge about Ex.A.5 sale not being binding on the plaintiffs. Consequently, we affirm the judgment of the learned single Judge with reference to the 9th defendant's case and dismiss the appeal. However, there will be no order as to costs.
11. Appeal dismissed.