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PETITIONER: NARAYANA PRABHU & ANR.

       Vs.

RESPONDENT: JANARDHANA MALLAN & ORS.

DATE OF JUDGMENT:       10/05/1996

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) AHMADI A.M. (CJ) MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (5)   617        1996 SCALE  (4)437

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.Venkataswami, J.      The appeal  being of  the  year  1974,  though  we  are naturally anxious to finally dispose it of, we are forced to remit the matter to the High Court as we are convinced after hearing the  learned Sr.  Counsel on  both  sides  that  the matter requires  remittance. We  propose to  give only  bare minimum facts necessary for making this remand order.      Defendant 1  & 2  in O.S.  No. 35/63 on the file of the court of  Subordinate Judge,  Irinjalakuda (Kerala)  are the appellants in  this appeal.  Respondent Nos.  1-6  were  the plaintiffs in  the said  suit. Respondent  No. 5  has  since expired and  respondent nos.8-12 are substituted as his LRs. in his  place. Respondent Nos.7 and 13 were defendant nos. 4 & 3 respectively in the said suit.      For the  sake of convenience, we will refer the parties by  their   ranks  in  the  original  suit.  The  plaintiffs (respondent nos.  1-6) filed  the said  suit challenging the sale deed  dated 24.3.55  executed by  their father and also the father  of the  4th defendant who is none other than the elder brother of the plaintiffs.      According to  the plaintiffs,  the property  sold under the said sale deed (Ext.P2) was a joint family property. The plaintiffs had  equal interest  in the  suit property and at the time of sale they were minors and there was no immediate necessity for alienating the property nor was the alienation for the benefit of the estate. The property sold under Exbt. P2  was   much  more  valuable  than  the  amount  shown  as consideration in  the sale deed. Further the amount shown as consideration namely,  Rs.21,000/- was  not received but the entire amount  was reserved with the 1st defendant/purchaser to discharge  by payment  the future ’kuri’ instalments in a ’kuri’ subscribed  by their  deceased  father.  It  was  the further case  of plaintiffs that such instalments could have been made  from out  of the  income of the property sold and

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also from the properties which were in the possession of the family.  The   plaintiffs  also   alternatively  prayed  for partition of  the suit  property and  for separate 6/8 share and for other consequential reliefs.      The  main   defence  taken   by  the   first  defendant (appellant No.1) was that the property never belonged to the joint family but it was the separate property of the father. The 4th defendant joined in the execution of the document by way of  abundant caution  even though  he had  no  right  or interest. It  was also contended on behalf of the contesting defendants  that   Venkiteswara  Mallan,   father   of   the plaintiffs was  heavily indebted on the date of execution of Ext. P2 and that liquidation of the said debts was an urgent necessity  and  for  which  purpose  he  had  to  sell  some properties of  the joint  family. The  deceased father could not do  so as  all the items of joint family properties were secured for  the payment  of future  subscriptions of  their ’kuri’ under Ext P7. In order to release the family property from Ext.  P7  ’kuri’  mortgage,  the  deceased  father  was compelled  to  execute  Ext.  P2  in  favour  of  the  first defendant. As  a result of P2 sale, factually other items of properties were  realized and-certain  items were  sold  for discharge of the family debts.      After trial,  the  trial  court  found  that  the  suit property was  joint  family  property;  that  there  was  no pressing necessity  to execute P2 sale deed; that payment of future ’kuri’ instalments would not be a debt and therefore, it could  not be  contended that Ext. P2 was executed by the father for  discharge of  his antecedent  debts. Be it noted that there  was no  plea by the plaintiffs that the debt was tainted by  immorality  or  illegality.  Consequent  to  the finding  that   the  sale  was  not  for  the  discharge  of antecedent debts,  the trial  court further  found that  the sale was  not binding  on the  family. The  trial court also found that  there was  no necessity for execution of Ext. P2 on the  relevant date.  The trial  court also found that the price fixed  under execution  P2 could  not be  said  to  be adequate.      On appeal  by the  defendant nos. 1 & 2, the High Court concurred with  the view taken by the trial Court that Ext.P 2 sale  deed executed  for payment  of future instalments of ’kuri’ subscription  cannot be supported as one executed for discharge of antecedent debts by a Hindu father.      So far  as the  question of necessity to execute such a sale  deed   notwithstanding  the   fact  that  trial  court elaborately dealt  with this  aspect and rendered an adverse finding  against   the  purchaser/first   defendant   (first appellant) did  not go  into that  question  on  a  mistaken impression that  there was no pleading on that aspect in the written statement. The High Court observed as follows;      "If  the   suit   properties   were      ancestral  then   of  course,   the      consideration and necessity for the      sale under  Ext. P2 has to be shown      by the  alienee of  the sale.  That      the consideration  recited in  Ext.      P2 is  real  cannot  admit  of  any      doubt.  But   whether  that   is  a      consideration binding on the family      and if  it be, so far as the family      is concerned, whether there was any      pressing necessity  to execute such      a sale  deed is a question on which      the first  defendant should,  as we      would presently  show, lose in this

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    appeal. The  first defendant  wants      to rely on the recitals in the sale      deed to  indicate that the debts of      Venkiteswara Mallan  including  the      kuri debt  were  not  his  personal      debts but  were joint  family debts      and it  is further  contended  that      the business  run  by  Venkiteswara      Mallan  which  was  the  cause  for      incurring such  heavy debts  by him      was a joint family business, we are      afraid we  cannot consider  such  a      case so  long as  the pleadings  in      the case  do not justify this plea.      As we  have  pointed  out  earlier,      categorically the  first  defendant      asserts that  he was  competent  to      deal with  the property  as his own      and apparently  he did not set up a      case that the debts of Venkiteswara      Mallan  including  the  kuri  debts      were joint family debts.       x x x x x x x x x x x x x x x x x      We are only stating here that there      is no pleading that the business of      Venkiteswara  Mallan  was  that  of      joint family  so much  so  that  we      cannot go  into this  question, nor      is there  any evidence to show that      the  business   admittedly  run  by      Venkiteswara Mallan belonged not to      him but to his joint family or that      the debts  which were  incurred  by      him by way of execution of pronotes      subsequent to Ext. P2 were debts of      the family."      The above  observations of the High Court are factually not correct  and  contrary  to  the  material  available  on record. Learned  Sr. Counsel  appearing for  the  plaintiffs (respondents) fairly  admitted this  position. In  fact, the trial court has dealt with this aspect in paragraph 12-14 by referring to  pleadings in  the written  statement. In fact, the trial  court while  rendering a  finding on  this aspect against the  first defendant  (first appellant)  observed as follows ;      "The question  as to  whether there      are family debts binding on the co-      parceners  is  the  main  question.      Many documents  have been  filed on      the side  of the  1st defendant. So      far as Exs. XI and D1 are concerned      they are  pronotes and receipts and      it is  not possible  for us  to  go      into the  question  as  to  whether      those  documents  evidence  genuine      debts  of   either  the  family  or      Venkiteswara Mallan.  The plaintiff      is not  called upon  to enter  into      any  evidence   so   far   as   the      assignments  Exs.  XI  and  D1  are      concerned. The supporting documents      are  Exs.   D11   to   D33.   These      documents relate to either Ex.XI or      Ex.D1.  According   to  me   it  is      unnecessary  to   go   into   those

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    documents because  that  assignment      is not challenged in that suit. The      assignees are  not on record. There      is no  issue framed  with reference      to that  and the  plaintiff is  not      called   upon   to   answer   those      documents. Unless  these things are      present in  this case,  there is no      justification to  consider the  so-      called scheme  referred to  by  the      learned   counsel   for   the   1st      defendant. Over  and above  that it      is the  definite case  of  the  Ist      defendant that  the debts  referred      to in  Exs. XI  and D1 are debts of      Venkiteswara Mallan.  There  is  no      case that  these are  binding debts      to be cleared by the entire estate.      Therefore, there is no necessity in      this suit  to go  into the question      of a  scheme  put  up  by  the  1st      defendant."      Whether the  trial court  was justified  in taking  the above view  should have  been considered  by the High Court. Instead the  High Court  wrongly declined  to go  into  this question on  the footing  that there  was  no  pleadings  to enable the  court to  go into  that question.  The  question whether there  was necessity  for execution of the sale deed by a  Hindu father  as ’karta’  of the joint family property and its  binding nature  depends upon  various  factors  and circumstances and  answer to that would decide the result of the case  come way  or the  other. Therefore, that cannot be ignored. In  the circumstances, we set aside the judgment of the High  Court and  remit the  matter back  for disposal in accordance with  law. Having  regard to  the fact  that  the matter relates  to the  suit of  the year  1963, we hope and trust the  High Court  would dispose  of  the  same  at  the earliest. There is no order as to costs.