JUDGMENT
1. The un-successful plaintiffs in the suit are the appellants in this
appeal. They are the sons of 9th defendant in the suit. For the sake of convenience the parties will be referred to herein as per their rank in the suit.
2. The plaintiffs and the 9th defendant were members of a Joint Hindu Family. Plaint ‘A’ schedule property which consists of a village site together with a thatched house therein, was the joint family propeity of the plaintiffs and the 9th defendant. The suit is filed for a declaration that the sale-deed Ex.B2 dated 11-12-1962 executed by the 9th defendant in favour of the 1st defendant in respect of the suit property and the subsequent alienation of the same by defendants 1 to 4 in favour of defendants 5 to 8 under Ex.B3, Ex.B4 and Ex.B5 are not valid and binding on the plaintiffs and for consequential relief of partition and separate possession of 2/3rd share therein to the plaintiffs and for other incidental reliefs. It appears that the 9th defendant was involved in a protracted litigation with one Narasimharaju, which went on from the year 1942 to 1962. For the purpose of meeting the said litigation expenses, the 9th defendant initially borrowed a sum of Rs.2,000/- from the first defendant, who is no other than his nephew and mortgaged the suit property in favour of the 1st defendant under Ex.B1, dated 29-4-1962. The litigation in the Supreme Court went against the 9th defendant. As a result the 9th defendant was obliged to pay heavy amounts to his opponent towards costs as well as by way of restitution. After the said litigation ended, the 9th defendant sold the suit property to the 1st defendant under the sale-deed Ex.B2, dated 11-12-1962. Defendants 2 to 4 are the sons of the 1 st defendant. Defendants 1 to 4 sold the suit property to defendants 5 to 8 under three different sale-deeds, namely, Ex.B3, B4 and B5, dated 7-6-1974, 7-6-1974 and 25-1-1975 respectively. The plaintiffs filed the suit after attaining majority.
3. The said alienations were sought to be questioned by the plaintiffs mainly on the
ground that the alienations were sham and nominal and they were mainly intended to screen the property from the reach of the creditors and that in any case the alienation is not valid and binding on the plaintiffs as the sale is not justified by any legal necessity or benefit to the estate.
4. The defence was that the sale-deed Ex.B2 as well as the subsequent sale-deeds Ex.B3 to B5 are real and bona fide transactions and that they are fully supported by consideration and that they are perfectly valid and binding on the plaintiffs. As the sale was made by the father for discharge of antecedent debts and also for meeting the litigation expenses, the same, by no stretch of imagination, can be called illegal or immoral debts. It is also contended that the sales were fully acted upon and the vendees have constructed pucca buildings in the portions purchased by them. It is also further contended that the suit is barred by limitation.
5. The lower Court found that the mortgage deed Ex.Bl as well as the sale-deed Ex.B2 executed by the 9th defendant in favour of the 1st defendant are fully supported by consideration and they are valid and binding on the plaintiffs. The lower Court however found the issue of limitation in favour of the plaintiffs. On the said findings the lower Court dismissed the suit.
6. In this appeal Sri. I. Venkata Narayana, learned Counsel for the appellants has mainly contended that the sale of the suit property by the 9th defendant to the 1st defendant does not bind the plaintiffs as the sale is not justified by any legal necessity and that it was mainly intended to screen the property from the reach of the creditor. It is also contended that the sale consideration stipulated under Ex.B2 is too low and nominal as the property was a valuable property situated in the heart of the village and its value was
not less than Rs.50,000/- at that time. The learned Counsel also sought to contend that the sale of the properly by the father without obtaining the permission of the Court as per Section ‘B’ of the Hindu Minority and Guardianship Act, 1956 is not valid and binding on the sons. In support of the said contention the learned Counsel sought to place reliance on the following decisions. T. Kochu Thommen v. R.M. Sahai, AIR 1991 SC 1256, O.G. Sankar v. S. Veera Sameera Kumar Dev, 1997 (1) LS 56, Meka Peethambaram v. Nanduri Lakshmi Narayana, An. WR 1978 (1) 512.
7. The plaintiffs examined on their side three witnesses in all as PWs.1 to 3. PW1 is the first plaintiff. His evidence which is very brief clearly shows that he has no personal knowledge whatsoever of the facts. His evidence is mainly concentrated on the question of his date of birth. He did not speak about any material facts in issue. He confessed that he does not know the contents of the plaint allegations. PW2 is said to be the brother-in-law of the 1st defendant. He deposed that the 9th defendant executed the sale-deed Ex.B2 in favour of D1 as he was involved in financial difficulties and that Ex.Bl is not supported by consideration. He also deposed that the suit site as worth Rs.50,000/- or Rs.60,000/- in the year 1962 and its worth is nearly Rs. 1,00,000/- by the date of his evidence but there is no credible material on record to substantiate his claim that the suit site is worth Rs.50,000/- or Rs.60,000/- in the year 1962. In the absence of any documentary evidence in proof of the market value of the lands in the locality, the oral evidence of PW2 is not believable. The lower Court did not place much reliance on his evidence as admittedly he was not on good terms with Dl. PW3 was examined mainly to speak about the letter Ex.A6 allegedly written by him to D9 and also about the value of the suit property. But PW3 himself has stated in his evidence that he has no idea about the value per cent during the year 1960. The oral evidence of PWs.1 to 3
in my view does not contain anything to show that the sale-deeds in question were nominally executed with a view to screen the property from the creditors.
8. The burden of proof naturally lies on the plaintiffs and they have miserably failed to discharge the burden lying on them. D9 sold the property to D1 in the year 1962 for a sale consideration of Rs.3,000/-. After the lapse of 13 years i.e., in the year 1975 D1 to D4 sold the property to D5 to D8 under three different sale-deeds for Rs.5,000/-, 4,000/- and Rs.5,000/- respectively. The evidence on record shows that the sale-deeds were acted upon and the vendees constructed pucca buildings in the portions purchased by them. The suit came to be filed in the year 1975 informa pauper is after a lapse of 13 years from the date of sale and after the property changed hands twice. It also appears from the record that the suit property was got attached by V, Narasimha Raju for realisation of the amounts due to him under the decree obtained by him against D9. D! thereupon filed claim petitions for raising attachment and his claim was upheld and the attachment was raised. Narasimha Raju questioned the said orders by filing claim suits which were allowed. On appeal the claim of Dl was ultimately upheld pursuant to a compromise between the parties, it cannot, therefore, be said that the sale in favour of D1 is either sham or nominal. Ultimately the property was again sold to D5 to D8, who are third party purchasers, who are not in any way connected with D9 or D1. I do not, therefore, have any hesitation in holding that the sale-deeds are not sham or nominal.
9. The next question for consideration is whether the sale-deed Ex.B2 is valid and binding on the plaintiffs. It is well settled that under Hindu Law the father has special powers of alienation of joint family property including the son’s share either for legal necessity or for the benefit of the estate. He can also sell joint family property including
the son’s share for the discharge of antecedent debts, which are not Avyavaharika i.e., which are not tainted by illegality or immorality. In the instant case it is not in dispute that Ex.B2 sale-deed was executed for the purpose of discharging the earlier mortgage debt under Ex.B1 and to pay the amounts due to V. Narasimha Raju, as per the judgment of the Supreme Court. The sale was thus made for discharging the debts incurred by the father for meeting the litigation expenses and for payment of decree debts. It cannot be said that the said debts are tainted by any illegality or immorality. It, therefore, follows that the sale-deed Ex.B2 is perfectly valid and binding on the plaintiffs. I do not find any substance in the contention of the learned Counsel for the appellants that the sale is bad for want of permission of the Court as per Section 8 of the Hindu Minority and Guardianship Act, 1956. The said Section deals with the powers of the natural guardian in respect of the minor’s property. Subsection (2) of Section 8 of the said Act provides that the natural guardian shall not without previous permission of the Court, mortgage, charge or transfer by sale, gift or otherwise any part of the immovable property of the minor. Sub-section (3) of Section 8 of the Act further provides that any disposal of the immovable property by the natural guardian in contravention of sub-section (1) or sub-section (2) is voidable at the instance of the minor or any person claiming under him. It must be remembered that the Section applies only to minor’s separate property, but it does not apply to his interest in joint family property. This is made clear by Section 6 of the Act, which provides that the natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in the joint family property) are the father, and after him, the mother. This Section by excluding the interest in the joint family property recognised the old Hindu Law Principle in regard to the joint family property of the minor. Cases 1 and 2 (supra) cited by the learned Counsel for the appellants are
cases dealing with a minor’s separate property, but not his interest in joint family property. As such the said cases have no application to the instant case. The case 3 (supra) cited by the learned Counsel for the appellants is a case in which the minor’s property was sold by the de facto guardian contrary to Section 11 of the Act, which provides that after the commencement of the Act no person shall be entitled to dispose of or deal with the property of a Hindu Minor merely on the ground of his or her being the de facto guardian of the minor. It was held in the above said case that Section 11 of the Act governs not only the minor’s separate property but also his undivided interest in the joint family property and that the de facto guardian is not entitled to deal with the property of the minor. The said case has no bearing on the question of the father’s power under Hindu Law to alienate the joint family property, including son’s share. Even this case is, therefore, of no assistance to the appellants.
10. For the aforesaid reasons the appeal has no merit and it fails. It is accordingly dismissed, but, without costs.