Judgment:
Chandrashekaraiah, J.
1. The parties in this appeal are referred to as they are arrayed in the Trial Court.
2. This appeal is by the plaintiff challenging the judgment and decree passed by the Court below.
3. The plaintiff filed a suit for declaration that he is the owner of the suit schedule property and for possession, in the alternative for partition of the family properties and also prayed for an alternative relief which reads as follows:-
'If for any reason if the Court were to feel that the plaintiff is not entitled to either of the afore said reliefs, he may be granted a decree for refund of the consideration amount paid with expenses incurred for stamps etc., at Rs. 30,000/- with interest at 21% p.a. by way of damages with a charge on the suit schedule properties.'
4. The case of the plaintiff is; he purchased the suit schedule 'A' property from defendant-1 under the registered sale deed dated 10.2.1986 for a consideration of Rs. 1,50,000/- as defendant-1 required the said money for maintenance of his family for want of sufficient income. It is also stated in the plaint that he has paid a sum of Rs. 75,000/- on the date of the agreement and Rs. 40,000/- for investment in National Savings Certificates and Rs. 35,000/- was paid at the time of registration. In the said suit he has also alternatively prayed for general partition and for allotment of 'A' schedule property by making equitable adjustment in the suit schedule property while
effecting general partition, alternatively for refund of the amount paid by him with cost with expenditure incurred.
5. Defendant-1 in his written statement admitted the execution of the sale deed and also has admitted that the plaintiff was put in possession of 'A' schedule property. The defendants 2 to 6 who are the sons, daughters and wife of defendant-1 filed written statement contending that the suit schedule 'A' property is the joint family property and sale made by the defendant-1 in favour of the plaintiff is not for any legal necessity and therefore, it is not binding on them. It is further stated in the written statement that defendant-1 has no saleable interest on his own. The further case of the defendants is that the plaintiff is not a bonafide purchaser since being aware of the fact that defendant-1 alone is not entitled to sell the property, has purchased the same from defendant-1.
6. On these rival contentions the Trial Court has framed several issues. Thereafter, on assessment of evidence recorded the finding that the sale made by defendant-1 is not binding on defendants 2 to 6 and therefore, the sale itself is void and consequently, the plaintiff is not entitled for any relief in so far as it relates to the declaration of title and possession and for general partition. So far as the third relief is concerned the Trial Court decreed the suit in favour of the plaintiff.
7. Now, the question that arise for consideration before this Courtis:
1) Whether the Trial Court is right in holding that the sale deed executed by defendant-1 in respect of 'A' schedule property in favour of the plaintiff is binding on defendants 2 to 6?
2) Whether the appeal filed by the plaintiff is maintainable in law in view of the fact that the alternate relief for refund of the money has been granted by the Trial Court?
8. Defendant-1 died during the pendency of the suit. Plaintiff has been examined as PW-1 before the Trial Court. In his evidence he has stated that as there was no sufficient income from the joint family property of defendant-1 in order to get the building repaired, for education of his children, for celebrating marriages of his children and to discharge the loan borrowed by him, has sold the suit schedule 'A' property for Rs. 1,50,000/- in his favour under the registered sale deed dated 10.2.1986, which is marked as Ex.P-1. The plaintiff in his deposition has also stated that from out of the amount received from him, defendant-1 deposited Rs. 75,000/- in Corporation Bank. He has further stated that defendant-1 deposited Rs. 10,000/-each in the name of defendants 2 to 5, Rs. 35,000/- has been deposited in the post office and the remaining amount of Rs. 35,000/- paid at the time of registration of sale deed, has been deposited in the Syndicate Bank. From this evidence of PW-1 it is seen that there was no pressure on defendant-1 to sell the joint family property as all the money received by him has not been utilized by for the reasons stated by him to sell the property.
9. Suit 'A' schedule property admittedly is the joint family property as it was inherited by defendant-1 from his ancestors. In the absence of any such pressure or need to sell the joint family property, it cannot be said any alienation by defendant -1 is for any legal necessity. Further, no evidence has been produced by the plaintiff to show the amount received by defendant-1 has been spent for the benefit of the joint family or for any legal necessity or for discharging any antecedent debts. Therefore, in my opinion, the alienation of suit schedule 'A' property made by defendant-1 in favour of the plaintiff is not for legal necessity or for the benefit of the joint family or for discharge of antecedent debts. Hence, I hold that the Trial Court is justified in holding that the alienation made by defendant-1 in favour of the plaintiff is not for legal necessity.
10. The next question that arise for consideration is whether the sale of 'A' schedule property by defendant-1 is binding on defendants 2 to 6. Defendants 2 and 3 are the sons, defendants 4 and 5 are the daughters and defendant-6 is the wife of defendant-1. Since the suit schedule property is the joint family property, defendants 2 to 5 are entitled for a share in the suit schedule property. If defendants 2 to 5 are the co-sharers and are majors necessarily, the consent of these defendants is required before alienating the property by defendant-1 in favour of the plaintiff. It is in evidence that defendants 2 to 6 have issued a legal notice dated 14.3.1985 through their advocate to the plaintiff not to purchase the suit schedule property since it is the joint family property of the defendants. The copy of the notice is marked as Ex.D-1. Defendants have also published the notice in the newspaper stating that the said property is the joint family property and therefore, the same shall not be purchased and in the event any sale is made by the defendant-1 the said sale deed is not binding on the defendants. Copy of the notice is also marked as Ex.D-35. Thereafter, the defendants have also filed objections before the Sub-Registrar not to register the document in favour of the plaintiff on the ground that defendant-1 is not the sole owner of the property to sell the same. Plaintiff in his deposition has stated that as the children of defendant -1 are majors, he asked defendant-1 to get their consent for the sale of the said property, but in reply to the same defendant -1 has stated that he is an advocate and therefore, there is no need to ask their consent in order to sell the schedule 'A' property. PW-1 in his deposition has also stated that when he went to the house to inspect before purchasing the property the wife and children of defendant-1 had protested the sale. From all these facts it is clear that even though the plaintiff was aware of the fact that there are other major children who are also entitled for a share in the property, he has proceeded to purchase the 'A' schedule property from defendant -1 solely relying upon the representation made by defendant-1. Therefore, I hold that the plaintiff cannot be considered as a bona fide purchaser of the property.
11. The Trial Court relying upon some decisions has held that the same made by defendant-1 is void and therefore, the plaintiff is not entitled for declaration of title and for possession. Defendant-1 is also entitled for a share along with other defendants since the schedule A property is the joint family property of the defendants. So far as the defendants 2 to 5 are concerned, the sale deed executed by defendant -1 is not binding on them and in so far as they are concerned, it is void. But, at the same time, it cannot be said that the sale deed executed by defendant-1, in so far as he is concerned, is void.
In case of MANOHAR LAL AND ANR. V. DEWAN CHAND AND ORS., it is held that the proposition of law that under Mitakshara School of Law, the alienation if otherwise void, does not even bind the share of the alienor has been invariably accepted and holds the field.
In case of AIYYAGARI VENKATARAMAYYA AND ANR. V. AIYYAGARI RAMAYYA, Indian High Court Reports 25 Madras P. 691 it is held that the purchaser is entitled to recover, by partition, a moiety of the plots of land in question if such moiety could have been equitably allotted to the plaintiff's vendor's share in case of a partition of all the family property.
In case of LACHMAN PRASAD v. SARNAM SINGH AND ORS., AIR 1917 Privy Council P. 41 it is held that a mortgage of a joint family property if made, neither for family necessity nor for discharging antecedent debts is void in toto and in the absence of special circumstances like an express or implied representation that the mortgagors had the right to create the encumbrance cannot bind even their shares which they may get on partition.
Though the Privy Council in the said case has held that the entire transaction is void in toto in the absence of family necessity or for discharging antecedent debt, our High Court in the case of PADMAVATI BAI v. RAJAPPA GUNDAPPA DEVAKHAT AND ORS. reported in 1969 Vol. 2 Mys.L.J. 340 has held as follows:-
' On the death of Ganesh, his interest viz. one - third share as found by us under Point No. 1 vested in the plaintiff and the remaining two - third share vested in Anantharaj as Kartha of the residuary family. The relation between the plaintiff and Anantharaj in relation to the common property was that of tenants - in common. It is settled law that in the absence of authorization or ratification on the part of his co-tenants, any deal on the part of a single co-tenant in relation to the common property is not binding on the non-alienating co-tenants and the transaction of this kind is void as to the other co-tenants. It is not void as against the alienating co-tenant and may bind his undivided interest. In a proper case, the Courts will accord to the persons with whom he has dealt with, such relief as the facts may warrant, in so far as that can be done without prejudice to the rights of the non-alienating co-tenants. It is a general rule that one tenant in common has no right as against his associates to convey to a third person any specific or distinct portion of the common estate. The reason is obvious. The grantor's title is to an undivided share of the whole, and he is neither authorised to carve out his own part, nor to convey in such a manner as to compel his co-tenants to take their shares in several distinct parcels such as he may please. Although such an alienation is not binding upon the non-alienating co-tenants, it may be valid as between the parties and title to the specific property alienated will pass to the grantee in the event it should be allotted to the grantor in subsequent partition proceedings.'
In view of the decision of the Division Bench of this Court I am of the view that any alienation made by one co-sharer without the consent of other co-sharer is void in so far as the co-shares who have not consented to the said alienation. But, the said transaction cannot be said to be void as against the alienating co sharer and it binds his undivided interest. Even as per Mulla's Hindu Law the alienee of the specific property or of the undivided interest of a coparcener in such property has on a general partition an equitable right to have that property, or his alienor's share in that property, as the case may be, assigned to him if it could be done without injustice to other co parceners.
12. In the case on hand, admittedly other co sharers have not consented for the sale. If that is so, the sale made under Ex.P1 by Defendant-1 in favour of the plaintiff is void in so far as defendants 2 to 5 are concerned and therefore, it is not binding on them. But so far as defendant-1 is concerned the said transaction is binding on him and it is not void as against him. Therefore, in law he (plaintiff) may ask for equitable adjustment in a general partition,
13. The Trial Court no doubt has held that the plaintiff is not entitled even for a general partition on the ground that the entire transaction under Ex.P-1 is void. But, the learned Counsel appearing for the defendants contended that the appeal filed by the plaintiff, itself is not maintainable since one of the reliefs sought for alternatively has been granted by the Trial Court and therefore, he is not a person aggrieved so as to maintain an appeal under Section 96 of CPC.
14. Learned Counsel appearing for the plaintiff submits that just because one of the reliefs alternatively sought for has been granted it does not mean that the plaintiff cannot maintain an appeal on the correctness or otherwise of the judgment refusing the prayers made regarding declaration or in the alternative for general partition.
15. The first prayer of the petitioner is for declaration of title and for possession; the second prayer is for general partition and alternatively the third prayer is for refund of the money paid with expenses incurred and interest. Out of these three prayers, the Trial Court granted the prayer regarding refund of the amount sought for by the plaintiff.
Under the general law if there are remedies more than one, availing of one remedy bars the other remedies. Similarly, if the plaintiff has asked for more reliefs alternatively, the question is whether the grant of one of such relief would take away his right of appeal in so far as it relates to refusing to grant other reliefs sought for in the plaint. Learned Counsel for the defendant in support of his contention regarding maintainability relied upon the decision of the Madras High Court in MANICKAM alia MANICKAVASAGAM AND ORS. v. RAMASWAMY GOUNDER AND ANR., 1981(1) Madras Law Journal P. 163 and SAKKU BAI AMMAL v. R. BABU REDDIAR AND ORS., : AIR1977Mad223
In Manickam' case the Madras High Court has held as follows:-
'That where a plaintiff asks for relief in the alternative and puts the alternative reliefs on a par with each other, he should be deemed to have made an election even at the threshold and after grant of one of such alternative reliefs, he is not an 'aggrieved person' who could carry the matter to the higher Court for the grant of that relief which was not give by the Trial Court.'
In SAKKU BAI's case the Division Bench of the Madras High Court has held as follows:-
It is, therefore, clear to us that as the choice of the reliefs is always with the plaintiff, who is the dominus litus in a litigation, he could seek for more than one relief, seek for more than one independent relief or ask for alternative reliefs. If he asks for the last of such reliefs, then he is placing the reliefs so sought for by him on a par with each other and if the Court trying the subject matter grants him one relief, then it follows that he has the benefit of the relief and he cannot throw over board such a benefit with a design or motive or to further his own cause by seeking umbrage in an Appellate Court and ask for the relief not granted to him which as already stated, he only asked for in the alternative. 'Alternative' is an expression, which indicates a choice of the person and if that choice is exercised by him, then he cannot afterwards blow hot and cold and seek for reliefs as he desires by throwing overboard the benefits which he has secured on a full trial in the Trial Court. This would be encouraging as we said, the whims and fancies of a litigant. We are, therefore, of the view that having regard to the trend of decisions here and elsewhere and on the basic reasonable principle that a man cannot approbate and reprobate, this appeal is not maintainable'.
16. Learned Counsel for the plaintiff relying upon the decision in the case of R.C. Chandiok and Anr. v. Chuni Lal Sabharwal and Ors., : [1971]2SCR573 contend that only because the Trial Court has granted one of such alternative reliefs, it does not take away the right of the aggrieved person to challenge the order of the Trial Court in so far as refusal to grant the other relief is concerned. In the said case the Supreme Court has not considered the maintainability of the appeal in the event if one of such alternative relief has been granted. If that is so, in my view this decision is not of any assistance to the plaintiff.
17. In the instant case, the first prayer of the plaintiff is for declaration and for possession. Alternatively the second prayer is for general partition and for equitable adjustment. Alternatively, the third prayer is for refund of money with expenditure incurred with interest. All the reliefs are placed on par with each other. If that is so, in my view, the Appellant cannot be considered as a person aggrieved so as to maintain an appeal. The Division Bench of the High Court of Madras in case of SAKKU BAI AMMAL v. BABU REDDIAR AND ORS. cited supra has considered all the decisions on the point and has held that the plaintiff is not a person aggrieved if any one of the alternative reliefs has been granted. I am in full agreement with this view and hold that the appeal filed by the plaintiff is not maintainable since the alternative relief for refund of money has been granted in his favour.
18. Suit Schedule 'A' property is a dwelling house belonging to joint family of the defendants and therefore, at the instance of a stranger it is not appropriate to disrupt the joint family by partitioning the dwelling house. Therefore, even on this ground also I find no reason to disturb the judgment and decree of the Trial Court.
19. In the result, I pass the following order:-
i) Appeal is dismissed.
ii) Parties to bear their own cost.