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Friday, March 7, 2014

Partition suit - Burden lies on whom under sec.41 T.P.Act - in the absence of any specific pleading by plaintiff as to absence of legal necessity for sale of lot II of plaint 'C' Schedule property under Ex.B.7 and in the absence of an issue framed as to existence of legal necessity by the trial court in that regard, it was not necessary for D.23 to lead any evidence as to existence of legal necessity for the sale of this item of property to her. =V.Eswara Rao, S/o.Late Appalaswamy,R/o. Kottavalasa within Parvatipuram Municipality,Vizianagaram District and others....Appellants/Defendants V.T. Sharat Chandra Thotraj...Respondent/Plaintiff = 2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10943

Partition suit - Burden lies on whom under sec.41 T.P.Act -  in the absence of any specific pleading by plaintiff as to absence of legal necessity for sale of lot II of plaint 'C' Schedule property under Ex.B.7 and in the absence of an issue framed as to existence of legal necessity by the trial court in that regard, it was not necessary for D.23 to lead any evidence as to existence of legal necessity for the sale of this item of property to her. =
Partition suit - by the son of Defendant No.21 against his father and against his paternal uncle and purchasers of plaint schedule properties -plaintiff was aged twenty years on the date of filing of the suit, i.e., 16.09.1987 and as the suit was filed within 3 years from the date of his attaining majority, the suit is not barred by limitation. - suit is partly decreed - Appeal is restricted only  item Nos.1 and 2 and lot II of the plaint 'C' Schedule - their Lordships of High court held that the Plaintiff never pleaded that those sale was done with out legal necessity and in such an even there is no need to the defendant to lead and plead that they are the bonafide purchasers and sale was for family needs - Trial court wrongly thrown the burden on defendants and partly allowed the appeal and set aside the trial court order in respect of item Nos.1 and 2 and lot II of the plaint 'C' Schedule =

suit was filed by 1st respondent/plaintiff through his GPA holder
seeking partition of plaint ABCD schedule properties into two equal shares and
for delivery of one such share to plaintiff after evicting defendants therefrom,
for partition of e schedule movables into two equal shares and for possession of
such share or value thereof from 2nd respondent/1st defendant, for profits and
costs.-
By judgment and decree dt.19.12.1992, the suit was decreed for partition of
plaint ABCD schedule properties, except items 1 and 2 of Lot I of plaint C
schedule into 4 equal shares and to put plaintiff in possession of one such
share. Mesne profits were directed to be enquired into on a separate
application. Suit as against D-2 was dismissed as per a compromised recorded in
IA.No.482 of 1992.=
the appeal is only in respect
of item Nos.1 and 2 and lot II of the plaint 'C' Schedule and that he is not
agitating in respect of any other item of the plaint schedule property.

1.      Whether the contesting defendants are bonafide purchasers for value
without notice of the alleged claim and whether they have entitled to the
benefit of Sec.41 of T.P. Act ?"=

15. When the suit came up for trial, the plaintiff and 2nd defendant entered
into compromise in respect of item Nos.1 and 2 of lot I of plaint 'C' Schedule
properties, filed a compromise petition IA.No.482 of 1992 under Order XXIII Rule
3 CPC and the said compromise petition was allowed.  As per the terms of the
said compromise, the 2nd defendant paid Rs.10,000/- to the General Power of
Attorney holder of the plaintiff in open court and the plaintiff did not press
the claim further against the 2nd defendant and this is recorded at para.9 of
the judgment of the trial court.
 It held that
PW.6, the maternal uncle of D.21 had stated that D.21 was suffering from a
mental disease for a long time and no adverse inference can be drawn for his
non-examination.  It also held that even for non-examination of the plaintiff no
adverse inference can be drawn because the evidence of PW.6 coupled with Ex.A.4 
would be sufficient to prove that the plaintiff is son of D.21.
It held
that the defendants did not dispute that plaintiff was aged twenty years on the
date of filing of the suit, i.e., 16.09.1987 and as the suit was filed within 3
years from the date of his attaining majority, the suit is not barred by
limitation.
It held that since the 1st defendant, 21st defendant and Late
Bhagavathi Prasad Thotraj are the sons of Narasimha Narayana Thotraj who died in
1977, they constitute Hindu Joint Family and the 21st defendant, who was a major
, did not join them in execution of any of the sale deeds mentioned in the
plaint, and therefore, the plaintiff is entitled to 1/4th share in the plaint
schedule properties.
Trial court found that No pleadings by Defendants for family needs & bona fide purchasers
the defendants had ever contended that the sales were made by 1st defendant and his father Narasimha Narayana Thotraj as managers of the family to discharge antecedent debts; that a
co-parcener can challenge an allegation made by Karta; that an issue as to
existence of legal necessity/benefit to an estate ought to have been framed by
the trial court; that the burden of proof lies on the alienee to make proper
enquiries as to legal necessity and benefit to the estate.  
It held that the
defendants did not produce any cogent evidence to prove that the 1st defendant
and his father sold away lands for legal necessity and benefit to estate.  It
also held that defendant Nos.2 to 7 did not state in their evidence that they
made enquiries as to the legal necessity and benefit to the estate.  It,
therefore, held that the contentions raised by 1st defendant and Narasimha
Narayana Thotraj cannot be sustained.

High court held that 
absence of any specific pleading by plaintiff as to absence
of legal necessity for sale of lot II of plaint 'C' Schedule property under
Ex.B.7
In Pandurang Mahadeo Kavade (dead) by his legal representative and others v.
Annaji Balwant Bokil and others1, the Supreme Court held that although an
alienee from a Karta of a Joint Family will have to establish that the
transaction in his favour is for legal necessity and, as such, binding on the
minor members of a family, unless there is a pleading about lack of legal
necessity and an issue framed in that regard by the trial court, it was
unnecessary for the alienee to lead any evidence to prove that the transaction
in question was in fact supported by legal necessity. 
Therefore, in view of the above decision of the Supreme Court, I am of the
opinion that in the absence of any specific pleading by plaintiff as to absence
of legal necessity for sale of lot II of plaint 'C' Schedule property under
Ex.B.7 and in the absence of an issue framed as to existence of legal necessity
by the trial court in that regard, it was not necessary for D.23 to lead any
evidence as to existence of legal necessity for the sale of this item of
property to her.  The court below without noticing the above decision of the
Supreme Court and lack of proper pleading by plaintiff and absence of issue on
the aspect of legal necessity erred in holding that D-23 failed to prove the
existence of legal necessity for Ex.B.7 transaction.
26. Therefore, the judgment of the trial court with regard to this aspect cannot
be sustained.  The appeal is partly allowed with costs and the judgment of the
trial court insofar as it held that 1st  respondent/plaintiff is also entitled to a share in item Nos.1 and 2 of lot II of plaint 'C' Schedule is set aside.

2014 ( Feb. Part ) judis.nic.in/judis_andhra/filename=10943

THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO              

AS.No.1807 of 1993

25-02-2014

V.Eswara Rao, S/o.Late Appalaswamy,R/o. Kottavalasa within Parvatipuram
Municipality,Vizianagaram District and others....Appellants/Defendants

V.T. Sharat Chandra Thotraj...Respondent/Plaintiff

Counsel for the Appellants/  Defendants: Sri K.V. Subrahmanya Narasu

Counsel for the Respondent/ Plaintiff: Smt. Lalitha, instructed by her Counsel,
Sri D. Ramalingaswamy

<GIST:

>HEAD NOTE:  

?Cases referred:

The Court made the following   :[order follows]

THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO              

AS.No.1807 of 1993

JUDGMENT :  

This appeal is filed challenging the judgment and decree dt.19.12.1992 in
OS.No.15 of 1987 on the file of the Sub-Ordinate Judge, Parvatipuram. The
appellants are Defendant Nos.6, 7, 8, 9, 23-31 in this suit.
2. Heard Sri K.V. Subrahmanya Narasu, counsel for appellants and Smt. Lalitha,
representing Sri D. Ramalingaswamy, counsel for 1st respondent.
3. The said suit was filed by 1st respondent/plaintiff through his GPA holder
seeking partition of plaint ABCD schedule properties into two equal shares and
for delivery of one such share to plaintiff after evicting defendants therefrom,
for partition of e schedule movables into two equal shares and for possession of
such share or value thereof from 2nd respondent/1st defendant, for profits and
costs.
4. By judgment and decree dt.19.12.1992, the suit was decreed for partition of
plaint ABCD schedule properties, except items 1 and 2 of Lot I of plaint C
schedule into 4 equal shares and to put plaintiff in possession of one such
share. Mesne profits were directed to be enquired into on a separate
application. Suit as against D-2 was dismissed as per a compromised recorded in
IA.No.482 of 1992.
5. Defendant Nos.23 to 31 are the legal representatives of the deceased 3rd
defendant.  Pending appeal the 5th appellant/defendant No.23 died but her legal
representatives are already on record as appellant Nos.6 to 13.
THE SCOPE OF THIS APPEAL :    
6. The counsel for appellant stated the contest in the appeal is only in respect
of item Nos.1 and 2 and lot II of the plaint 'C' Schedule and that he is not
agitating in respect of any other item of the plaint schedule property.
7. In view of this submission, only the pleadings and evidence in respect of
this item of the property will be considered in the appeal and I find it
unnecessary to deal with the pleadings and evidence regarding the other items in
the property.
THE PLAINT:
8. The 1st respondent/plaintiff is the son of D.21 in the suit.  The 1st
defendant and 21st defendant and another by name Bhagavathi Prasad Thotraj are 
the sons of one Narasimha  Narayana Thotraj.
9. Bhagavathi Prasad Thotraj died unmarried in or about 1970 and Narasimha
Narayana Thotaj died in 1977.
10. The plaintiff contended that his father D.21 was mentally unsound and had
been hospitalized; that D.21, D.1 and Bhagavathi Prasad Thotraj and their father
Narasimha Narayana Thotraj are members of a Hindu Mitakshara Joint Family; that
after the death of Bhagavathi Prasad Thotraj in 1970 D.21, D.1 and their father
Narasimha Narayana Thotraj continued to be joint family members owning the 
plaint 'A' to 'E' schedule properties and Narasimha Narayana Thotraj was acting
as family manager; that after hospitalization of D.21, his share in the property
was also managed by Narasimha Narayana Thotraj; and that he died in 1977.
11. He further contended that during his lifetime Narasimha Narayana Thotraj and
the deceased Bhagavathi Prasad Thotraj executed two registered sale deeds 
dt.23.03.1969 and 19.04.1969 for Rs.20,000/- and Rs.5,000/-, respectively in
favour of 2nd defendant in respect of items 1 and 2 of lot I of plaint 'C'
schedule; that these sales made in favour of  2nd defendant are not for family
benefit or for legal necessity and are not valid and binding on the plaintiff's
share.  He also contended that item Nos.1 and 2 of lot II of plaint 'C' schedule
were granted on a permanent lease under a document dt.26.11.1957 in favour of
the 3rd defendant ignoring the rights of D.21 and in derogation of the rights of
the plaintiff in the plaint schedule property.  The plaintiff also alleged that
properties in the other schedules were also sold away by the Narasimha Narayana
Thotraj or the 1st defendant; in al the properties covered by the sale deeds
executed by Narasimha Narayana Thotraj or 1st defendant, he had a right, title
and interest which has been ignored by 1st defendant and his father Narasimha
Narayana Thotraj. He contended that he and                            21st
defendant are entitled for half share in the entire property mentioned in the
schedules since both D.1 and D.21 admittedly have a half share each in them.  He
stated that he was all along living in Dhantari Town in Madhya Pradesh but he
has been in possession and enjoyment of the plaint schedule properties along
with 1st defendant and is, thus, in joint possession along with 1st defendant.
THE WRITTEN STATEMENT OF D-3 :      
12. The 3rd defendant filed a written statement denying that the plaintiff is
the son of D.21 and contending that the plaintiff is an imposter.  He also
pleaded that the General Power of Attorney/Ex.A.1 alleged to have been executed
by the plaintiff in favour of V.T. Satya Prasad Thotraj is not true and valid;
that the suit is speculative since previously the General Power of Attorney had
filed OS.No.54 of 1976 against three defendants herein and others in respect of
plaint 'C' Schedule House property; that the said suit was dismissed with costs
and appeal preferred against the judgment and decree was also decreed.  He
contended that the judgment in OS.No.54 of 1976 operates as res judicata with
regard to the house property.  He further contended that a registered permanent
lease dt.26.11.1957 was executed by D.1 and Narasimha Narayana Thotraj and
others in favour of the 3rd defendant and subsequently, a registered sale deed
19.09.1964 was executed in favour of D.23, the wife of 3rd defendant by
Janardhana Thotraj and the plaintiff had no right to question the permanent
lease deed and the sale deed.
13. The Defendant No.21 submitted that he had no written statement.
THE ISSUES :
14. The Trial Court framed the following issues and additional issues :
"1.     Whether the plaintiff is the son of 21st defendant Harichandra Thotraj,
entitled to ask for partition ?

2.      Whether the genealogy shown in the plaint is correct ?

3.      Whether the plaintiff has got title to and possession of the plaint A B C
D schedule properties at any time within the statutory period of limitation.  If
so, whether he is entitled half share to the suit property ?

4.      Whether the E Schedule moveables are in existence ?

5.       Whether the plaintiff is entitled to question the validity or otherwise
of the sale deeds dated 22-3-69 and 19-4-69,           9-7-75, 19-6-74, 20-3-74,
3-4-84, 6-7-81, 23-4-80, 5-9-56,  26-2-77, 9-7-75, the lease deed dt.26-11-57
and the sale deeds dated 19-9-84, 20-9-69, 20-3-69 and 22-9-69 ?

6.      Whether the Judgment in OS.54/76 operates as                           res
judicata?

7.      Whether there are any vitiating circumstances in all the impugned
alienations made in favour of the defendants 2 to 20, if so, whether these
alienations can be set at naught without paying Court fee for each document of
sale questioned by the plaintiff ?

8.      Whether the plaintiff is entitled to mean profits ?

9.      Whether the plaint A B C D schedule properties are correct?

10.     Whether the suit is bad for non-joinder of partition as claimed in the
Written Statement ?

11.     To what relief ?

Addl. Issue Dated : 27-10-1992 :-

1.      Whether the contesting defendants are bonafide purchasers for value
without notice of the alleged claim and whether they have entitled to the
benefit of Sec.41 of T.P. Act ?"

15. When the suit came up for trial, the plaintiff and 2nd defendant entered
into compromise in respect of item Nos.1 and 2 of lot I of plaint 'C' Schedule
properties, filed a compromise petition IA.No.482 of 1992 under Order XXIII Rule
3 CPC and the said compromise petition was allowed.  As per the terms of the
said compromise, the 2nd defendant paid Rs.10,000/- to the General Power of
Attorney holder of the plaintiff in open court and the plaintiff did not press
the claim further against the 2nd defendant and this is recorded at para.9 of
the judgment of the trial court.
16. Before the Trial Court, the plaintiffs examined PWs.1 to 6 and marked
Exs.A.1 A.12.  The defendants examined DWs.1 to 7 and marked Exs.B.1 to B.14.  
17. As stated supra, by judgment and decree dt.19.12.1992, the trial court
granted a preliminary decree.
18. In the said judgment it held that plaintiff is the son of D.21 and rejected
the contention of the 3rd defendant that the plaintiff is not the son of D.21.
It relied upon Ex.A.4, declaration filed under the provisions of the Andhra
Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 on 03.11.1981
by D.1 showing that plaintiff as the son of D1's brother D.21.  It held that
PW.6, the maternal uncle of D.21 had stated that D.21 was suffering from a
mental disease for a long time and no adverse inference can be drawn for his
non-examination.  It also held that even for non-examination of the plaintiff no
adverse inference can be drawn because the evidence of PW.6 coupled with Ex.A.4 
would be sufficient to prove that the plaintiff is son of D.21.  It held that
the judgment in OS.No.54 of 1976 does not operate as res judicata because the
judgment and decree therein were not marked as exhibits in this suit.  It held
that the defendants did not dispute that plaintiff was aged twenty years on the
date of filing of the suit, i.e., 16.09.1987 and as the suit was filed within 3
years from the date of his attaining majority, the suit is not barred by
limitation.  It held that since the 1st defendant, 21st defendant and Late
Bhagavathi Prasad Thotraj are the sons of Narasimha Narayana Thotraj who died in
1977, they constitute Hindu Joint Family and the 21st defendant, who was a major
, did not join them in execution of any of the sale deeds mentioned in the
plaint, and therefore, the plaintiff is entitled to 1/4th share in the plaint
schedule properties.
19. Coming to Issue No.5 and additional issue, it held that the plaintiff had
pleaded that his interest and his father's interest had been completely ignored
by 1st defendant and Narasimha Narayana Thotraj, and they had indulged in
indiscriminate sales in derogation of their rights; that the defendants had ever
contended that the sales were made by 1st defendant and his father Narasimha
Narayana Thotraj as managers of the family to discharge antecedent debts; that a
co-parcener can challenge an allegation made by Karta; that an issue as to
existence of legal necessity/benefit to an estate ought to have been framed by
the trial court; that the burden of proof lies on the alienee to make proper
enquiries as to legal necessity and benefit to the estate.  It held that the
defendants did not produce any cogent evidence to prove that the 1st defendant
and his father sold away lands for legal necessity and benefit to estate.  It
also held that defendant Nos.2 to 7 did not state in their evidence that they
made enquiries as to the legal necessity and benefit to the estate.  It,
therefore, held that the contentions raised by 1st defendant and Narasimha
Narayana Thotraj cannot be sustained.
20. Challenging the said judgment, this appeal has been filed by the appellants
only in relation to item Nos.1 and 2 of lot II of plaint 'C' Schedule.
21.   There is no dispute that the permanent lease deed dt.26.11.1957 (Ex.B.5)
was executed by Narasimha  Narayana Thotraj in favour of the father of 3rd
defendant by name Kodidasu Paradesi.  It is also not disputed that Ex.B.7-sale
deed dt.19.09.1964 was executed in favour of D.23, the wife of D.3, by
Janardhana Thotraj, the brother of Narasimha  Narayana Thotraj, in respect of
lot II of plaint 'C' Schedule.  In the plaint, the pleading of the plaintiff as
regards item Nos.1 and 2 of lot II of plaint 'C' Schedule is as under :
" ... ... ... In respect of Items (1) and (2) of Lot II of plaint 'C' schedule
property, the aforesaid V.T. Narasimha Narayana Thotraj appears to have ignored
the rights of the plaintiff's father and executed a permanent lease deed dated
26-11-1957 in favour of the 3rd defendant.  The said transaction is in
derogation of the valid rights of the plaintiff in the said property."

22. Thus, in the plaint there is no allegation that the sale in favour of D.23
under Ex.B.7 of lot II of plaint 'C' Schedule is not binding on the plaintiff as
it was made without any legal necessity.
23. In Pandurang Mahadeo Kavade (dead) by his legal representative and others v.
Annaji Balwant Bokil and others1, the Supreme Court held that although an
alienee from a Karta of a Joint Family will have to establish that the
transaction in his favour is for legal necessity and, as such, binding on the
minor members of a family, unless there is a pleading about lack of legal
necessity and an issue framed in that regard by the trial court, it was
unnecessary for the alienee to lead any evidence to prove that the transaction
in question was in fact supported by legal necessity.  It held :
"14.    The second contention of the learned counsel for the appellants does not
require any serious consideration.  It is no doubt true that an alienee from a
karta of the joint family will have to establish that the transaction in his
favour is for legal necessity and as such binding on the minor members of the
family.  But in this case, both the trial court as well as the High Court have
concurrently held that the appellants did not plead that Ex.78 is not binding on
them on the ground that it has not been executed by their father Mahadev for
legal necessity.  It has been found both by the trial court as well as the High
Court that in the absence of such a plea it was unnecessary for the plaintiff to
have adduced evidence on this aspect.

15.     Mr. Sarjoo Prasad pointed out that the plaintiff himself has specifically
referred in the plaint to the finding given in Civil Suit No.80 of 1941 that
Ex.78 has not been executed for legal necessity and as such was not binding on
the appellants.  In view of this specific statement, the counsel urged, it was
the duty of the plaintiff to have adduced evidence to prove that Ex.78 had been
executed by Mahadev for purposes binding on his sons, the appellants.  We are
not inclined to accept this contention of the learned counsel.  The recitals
relied on by the appellants in the plaint have been made with reference to the
plaintiff's plea that the decision in Civil Suit No.80 of 1941 is not binding on
him and that the appellants cannot rely on the same.  In answer to this plea it
is insignificant to note that the appellants did not raise any objection that
Ex.78 is not valid and binding on them as it has not been executed for legal
necessity.  On the other hand, their plea was that the decision in Civil Suit
No.80 of 1941 and the finding recorded therein operate as res judicata.  Apart
from these circumstances we also find that no specific issue has been framed on
this point.  On the other hand, issue No.3 to the effect :
"Do defendants prove that the sale-deed, dated 9th January, 1926, is not binding
upon them ?" 
clearly cast the burden on the appellants.  They never asked for recasting the
issues and they went to trial on the above issue.  Here again, both the trial
court and the High Court have recorded a finding that the sale deed is binding
on the appellants.  In view of these circumstances the finding of the trial
court as well as of the High Court that it was unnecessary for the plaintiff to
lead any evidence on this aspect is correct.  In fact we find from the judgment
of the High Court that a request was made by the appellants to frame an issue on
the question of legal necessity and remit the case to the trial court.  But this
request was in our view rightly disallowed.  Therefore, the second contention
has to be rejected."

24. This proposition of law is not disputed by counsel for 1st respondent.  The
counsel for 1st respondent has also not placed on record any judgment taking a
contrary view.
25. Therefore, in view of the above decision of the Supreme Court, I am of the
opinion that in the absence of any specific pleading by plaintiff as to absence
of legal necessity for sale of lot II of plaint 'C' Schedule property under
Ex.B.7 and in the absence of an issue framed as to existence of legal necessity
by the trial court in that regard, it was not necessary for D.23 to lead any
evidence as to existence of legal necessity for the sale of this item of
property to her.  The court below without noticing the above decision of the
Supreme Court and lack of proper pleading by plaintiff and absence of issue on
the aspect of legal necessity erred in holding that D-23 failed to prove the
existence of legal necessity for Ex.B.7 transaction.
26. Therefore, the judgment of the trial court with regard to this aspect cannot
be sustained.  The appeal is partly allowed with costs and the judgment of the
trial court insofar as it held that
1st  respondent/plaintiff is also entitled to a share in item Nos.1 and 2 of lot
II of plaint 'C' Schedule is set aside.
27. Miscellaneous applications, pending if any, shall stand closed.
________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date:  25-02-2014

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