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Pethu Reddiar Vs. Kandaswami Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2321 of 1946
Judge
Reported inAIR1950Mad560
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 to 101; Hindu Law; ; Transfer of Property Act, 1882 - Sections 6; Limitation Act, 1908 - Schedule - Article 44; Evidence Act, 1872 - Sections 101 to 103
AppellantPethu Reddiar
RespondentKandaswami Pillai and ors.
Appellant AdvocateK. Venkataramani, Adv.
Respondent AdvocateA.V. Narayanswami Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredHunoomanpersaud Pandey v. Mt. Babooee Munraj Koonweree
Excerpt:
.....expenses are sufficient for the conclusion arrived at by the learned judge to hold that..........is concerned, it is abundantly clear from the evidence that the sale-deed is genuine and the learned judge's finding on that point being on a question of fact cannot be upset in second appeal. on the other question as regards the right of the plaintiff to bring a suit without setting aside the sale in favour of d. w. 2 the lower appellate court relied upon the decision in kamaraju v. gunnayya, (1924) 45 m. l. j. 240 : a. i. r. 1924 mad. 322 and rejected the view of the calcutta high court in man mohan v. bidhu bhusen : air1939cal460 . i see no reason to disagree with the conclusion of the learned judge in his preference of the madras bench decision to that of the calcutta court. therefore his decision on that point also is correct.3. the real question in the second appeal is.....
Judgment:

Govinda Menon, J.

1. By Ex. D-2 dated 4th September 1934 the properties in dispute were sold to D. W. 2 by one Muthukaruppa Pillai who was the manager of a joint family consisting of himself and the present defendants 3 and 4. D. W. 2 sold the properties in her turn to defendant 1 under EX. D-1 dated 25th February 1942. The plaintiff is a purchaser of 1/3rd share of the suit properties from defendant 3, after he attained majority and on foot of that title brought the suit for partition and recovery of the 1/3rd share which he purchased. The trial Court found that the sale under Ex. D-2 by the manager of the joint Hindu family was valid and binding on the family and therefore defendant 1 had acquired absolute title so far as the properties were concerned and the sale by defendant 3 in favour of the plaintiff did not therefore convey any title or right to the properties. The trial Court also found that the sale-deed in favour of the plaintiff was not a genuine transaction. On these grounds the suit was dismissed.

2. The plaintiff took up the matter in appeal and the learned District Judge of Tiruchirapalli was of opinion that the finding of the District Munsif that the sale in favour of the plaintiff was not genuine could not be justified. Therefore the learned District Judge gave a declaration setting aside the finding of the learned District Munsif that the sale to the plaintiff was not genuine and he held that the plaintiff was entitled to bring the suit. The other point raised by defendant l before the lower appellate Court that the plaintiff was not entitled to bring a suit without setting aside the sale in favour of D.W. 2 was also found against defendant 1 by the lower appellate Court. The correctness of these two findings cannot be disputed in second appeal because so far as the question regarding the genuineness of the sale in favour of the plaintiff is concerned, it is abundantly clear from the evidence that the sale-deed is genuine and the learned Judge's finding on that point being on a question of fact cannot be upset in second appeal. On the other question as regards the right of the plaintiff to bring a suit without setting aside the sale in favour of D. W. 2 the lower appellate Court relied upon the decision in Kamaraju v. Gunnayya, (1924) 45 M. L. J. 240 : A. I. R. 1924 Mad. 322 and rejected the view of the Calcutta High Court in Man Mohan v. Bidhu Bhusen : AIR1939Cal460 . I see no reason to disagree with the conclusion of the learned Judge in his preference of the Madras Bench decision to that of the Calcutta Court. Therefore his decision on that point also is correct.

3. The real question in the second appeal is whether the learned District Judge has approached the question from the proper legal standpoint when he formulated the burden of proof in the case. Defendant 1 in big written statement did not state that D. W. 2 from whom he derived his title was a bona fide purchaser who made proper enquiries regarding the necessity for the transaction and was satisfied about the existence of such necessity. On the other hand, the case put forward is that D. W. 2 knew the state of the family sufficiently well and was aware of the fact that the marriage of Muthukaruppa's sister had to be performed and for that purpose money was borrowed and the same was expended. In chief-examination D. W. 2 stated that Muthukaruppa sold the land to meet the marriage expenses of his sister, the sale price being a sum of Rs. 200. But in cross-examination she says she was unable to know how much money was spent for the marriage. The learned District Judge was of opinion that the evidence in the case was not enough to show that money was required for the purpose of the marriage for the reason that in the sale-deed Ex. D-2 there was no recital whatever that money was required for such marriage. In the absence of any recital in the sale-deed with respect to the necessity for the money, the learned Judge was inclined to infer that the existence of a marriage at or about the time when the land was sold was utilised for the purpose of inventing a necessity. One cannot say that the learned Judge has gone wrong in coming to that conclusion. Moreover, the learned Judge held that it had not been proved that the money was spent for that purpose or that it was necessary to secure the money in such a manner for meeting the expenses.

4. Mr. K. Venkatramani, the learned counsel for the appellant disputes the propositions of law stated broadly by the learned Judge. It is clear by a long course of decisions beginning with Hunoomanpersaud Pandey v. Mt. Babooee Munraj Koonweree, 6 M. I. A. 393 : 18 W. R. 81 that a lender who makes bona fide enquiries and satisfies himself regarding the existence of a necessity is not bound to see to the application of the money. So far there can be no dispute whatever. But where the lender does not base his case on that, but proceeds on the basis that he knew that the borrowing was for a specific purpose and that the money was utilised for that particular purpose it is incumbent upon him to show that the borrowing was actually necessary for that purpose and that the money was so utilised. In this case, as I have already stated it is not the plea of defendant 1 that D. W. 2 was a stranger who bona fide purchased the land having made enquiries regarding the necessity for raising that money and satisfied herself as regards the existence of that necessity. In this connection it is useful to refer to paragraph 366 at page 467 of Mayne's Hindu Law where the learned author after citing authorities observes as follows:

'The purchaser or mortgagee is bound to make a bona fide inquiry as to whether the debt for which the mortgage or sale is executed could be met from other sources; for the person who deals with the manager of a joint family has to consider the propriety and necessity of the transaction in which he is engaged, not merely the propriety and necessity of paying the debt which is the alleged reason for the transaction. If the debt is improper or unnecessary and known to be so by the lender, the transaction is, of course, invalid. If the payment of the debt is proper and necessary, the transaction will still be invalid, unless the lender has reasonable assistance. There should be come connection between the money advanced by the transferee and the necessity that is proved. It may be that the slightest enquiry would have shown that there were other funds belonging to the joint estate which could have been used for the purposes or what is cot an uncommon case, the manager may be raising sums from other persons purporting to raise them for the same purpose. The caprice or extravagance of the manager will be relevant to show either that the object of the transaction was an improper one, or that the necessity for it was non-existent.'

In this case there is evidence to show that the family had other lands, and it has not been shown by the defendant that the marriage expenses could have been met only by the sale of these lands and not from the income of the properties. In such circumstances it seems to me that though the learned District Judge, in expounding the propositions of law in wide terms in para. 7 of his judgment is not strictly correct, still the facts and the circumstances adverted to by him to the effect that the absence of recital in the document as well as the absence of evidence regarding the utilisation of the money for the marriage expenses are sufficient for the conclusion arrived at by the learned Judge to hold that Ex. D-2 was not valid and binding on the family. It cannot be said that the finding of the learned Judge is vitiated by any serious error of law and the finding on the binding nature of Ex. D-2, being on a question of fact, in coming to which conclusion, he directed himself properly, cannot be upset in second appeal which is, therefore, dismissed with costs.

5. No leave.


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