Judgment:
D.M. Patnaik, J.
1. The plaintiffs are appellants before this Court. They challenge the judgment and the decree of the Subordinate Judge, Puri dismissing their suit for confirmation of possession or in the alternative for delivery of vacant possession and for other reliefs. The parties will be addressed as plaintiffs and defendants in this appeal as in the original suit for the sake of convenience.
Plaintiff No. 1 is the wife of defendant No. 7 and plaintiffs 2 and 3 are their children.
2. Plaintiffs' case is, the suit land measures Ac. 1.00, appertaining to Khata No. 275/29, Plot No. 696, situated in Ward No. 3 Holding No. 10 in Puri municipality. This originally belonged to the father of defendant No. 7 who had purchased and possessed the same in his own right, title and interest and after his death, defendant No. 7 possessed the same. Defendant No. 7 on his own entered into a partnership business with one Purna Chandra Mohapatra for manufacture of Homoeopathic drugs and to sustain the business, the partnership incurred loans from different sources. In order to protect the property from being attached at the instance of the creditors, Defendant No. 7 entered into a sham transaction with Rama Chandra Upadhyay, father of defendant No. 1 in respect of the suit properties and accordingly, a registered sale deed was executed on 15-11-75 for a consideration of Rs. 35,000/- though in fact no consideration passed nor possession of the property delivered under the deed. After the death of his father, defendant No. 1 transferred a portion of the suit land in favour of defendants 3 to 6 and after knowing this, when the plaintiffs requested defendantNo. 7, the latter did not take any step to save the property and deliberately avoided do so. When this conduct of defendant No. 7 went against the interest of the plaintiffs, they instituted the above suit for the reliefs already mentioned above.
3. Defendant No. 1 and defendant Nos. 3 to 6 filed separate written statements. While denying the material facts pleaded in the plaint, they took pleas of low valuation of the suit, absence of cause of action, the suit being barred by limitation etc. So far as transaction in question is concerned, it was pleaded that there was passing of consideration. Hence consequently title passed in favour of the father of defendant No. 1 Delivery of possession also was given. It was further pleaded that after the transaction the defendant No. 1's father possessed the same and this was evidenced by mutation of the land in question in his favour as well as payment of land revenue, taxes etc. by the defendants.
4. The lower Court framed the following issues:
1. Has the the plaintiffs any cause of action?
2. Is the suit maintainable as framed?
3. Have the plaintiffs locus standi to file the suit? Is plaintiff No. 1 competent to bring the suit representing the minor plaintiffs 2 and 3?
4. Is this suit barred by limitation?
5. Is the suit properly valued?
6. Is the court-fee paid adequate?
7. Whether the sale in favour of father of defendant No. 1 genuine or sham and whether title, interest, possession and the consideration money have passed under the sale deed?
8. Have the plaintiffs right, title, interest and possession in respect of the suit land?
9. Have the defendant Nos. 3 to 6 right, title, interest and possession over the suit land?
10. To what relief, if any, the plaintiffs areentitled?
5. Mr. Pal learned counsel for the appellants did not challenge the findings under the issues mentioned above except the findings of the lower court that plaintiff, No. 1 was not competent to maintain the suit as the next friend; and the sale deed executed in favour of father of defendant No. 1 was a valid one. In addition, he submitted that defendant No. 7 was not competent to alienate interest of the plaintiffs 2 and 3 who as on the date of transfer i.e. 15-11-1975 were members of the family and the three constituted Hindu coparcenery and therefore, the sale was invalid.
6. With regard to the first point of plaintiff No. 1 maintaining the suit on behalf of the minor plaintiffs 2 and 3 as the next friend, though Mr. Pal cited certain decisions, namely, AIR 1981 SC 519 Manik Chand v. Ramachandra, AIR 1978 Bom 190 Ratan v. Bisan Ramachandra Pardeshi and AIR 1987 Madh Pra 85 Mukesh v. Deonarayan, in support of his submission, I do not feel it necessary to discuss those decisions since Mr. Patnaik learned counsel for the respondents has not seriously challenged the said finding and secondly, I am of the view that when the minors' interest was affected, it could not have been justified on the part of the mother guardian to wait and see if the father guardian (defendant No. 7) was ever prepared to take up the cause of the minors whose interest in the property had been affected by the sale by defendant No. 7. The reasoning given by the lower court that there was no material to hold that the father guardian refused to take up the cause of the minors, cannot be accepted as the reasoning acceptable to an ordinary prudent man. Therefore, I set aside that finding and hold that plaintiff No. 1 is competent to maintain the suit on behalf of plaintiff Nos. 2 and 3.
7. So far as the point relating to thevalidity of the sale deed (Ext. A/1) dated 15-1-75 is concerned, on going through thejudgment and the evidence and accepting thesubmission of Mr. Patnaik, learned counselfor the respondents, I confirm the finding ofthe lower court that there has been validpassing of consideration for which the trans-action cannot be held to be sham transaction. TheCourt has accepted that prior to the execution of the sale deed, defendant No. 7 had received an advance of Rs. 20,000/- in two instalments from Rama Chandra Upadhyay, father of defendant No. 1. Not only that he has also considered the fact or endorsement of receipt of the rest part of the consideration money amounting to Rs. 15,000/- at the time of registration. In believing the transaction to be valid and genuine, he took into account the fact that the possession of the premises in question remained with the defendants, the title deed was also produced from the custody of the defendants and the peculiar relationship between the parties to the transaction. Para-10 of the judgment deals with the discussion about the possession and para-12 relates to the discussion on payment of rent and holding taxes by the defendants. The finding of the lower court is found to be based on proper consideration of both oral and documentary evidence. There is no justifiable reason to differ from the said finding and the same is therefore upheld.
8. The third and the most important point advanced by Mr. Pal is that the property in the hands of defendant No. 7 being the ancestral property of the coparcenary of which defendant No. 7 and plaintiffs 2 and 3 are the members; the transfer to the extent it affected the interest of plaintiffs 2 and 3 would be invalid. In this connection, it was argued that when the title of the property in question is in issue, it was incumbent oh the part of the lower court to frame and try the issue as to whether the property in question was either joint family property or the self-acquired property of defendant No. 7 and if it was joint family property, whether transfer of interest of the minors would be binding on them.
Mr. Patnaik, on the other hand, submitted that plaintiffs have led no evidence that the family had adequate nucleus to purchase the property, and therefore, the property was the self-acquisition of defendant, No. 7. We may examine the respective contentions.
To support his above contention, Mr. Palreferred to the provision under Article 223 ofMulla's Principles of Hindu Law, 15th Edn.(1992) page 246 which lays down as follows:
'If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as, he pleases. But if he has sons, sons's sons of sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitle to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes.'
Learned counsel also relied oh the decision of the Supreme Court reported in AIR 1967 SC 1153 Valliammai Achi v. Nagappa Chettiar.
There cannot be any quarrel over the law as quoted this has to be examined with reference to the facts of the present case.
9. The present suit was filed in the year 1979 showing the age of plaintiff No. 1 as 9 years and plaintiff No. 2 as 6 years. That takes me to fix the year of their birth as 1970 and 1973 respectively. This fact is not disputed by the defendants.
The defendants admit the title of defendant No. 7 in respect of the whole of the disputed land measuring Ac. 1.00. Out of this, admittedly defendant No. 7 got Ac. 0.40 decs. under Plot No. 696 to his share in the partition suit O.S; No. 94-1 of 1950 being the western portion of the plot on which the house with corrugated sheet roof stood. The share of P.W. 2 Rajkishore Mishra was ac. 0.60 decs. being the eastern portion of the said plot vide Final decree (Ext. 5). Admittedly having purchased, Ac.0.60 decs. from P.W. 2 by a registered sale deed dated 15-9-58 for consideration defendant No. 7 was in possession of the same. This is admitted by the defendants, since they claim that defendant No. 7 haying a valid title to the property transferred the same to the father of defendant No. 1 and defendant No. 1 transferred the same to the other defendants.
10. A lot of argument and counter argument was advanced as to whether such acquisition by defendant No. 7 was by way of exchange or sale and whether the same was acquired by the funds of the joint family or that of the defendant No. 7.
Be it a sale or exchange, the fact remains that defendant No. 7 acquired the title to the property under a validly registered deed. While it is the contention of the plaintiffs that it was acquired with the funds of the family, the defendants claim it to be the self-acquisition of defendant No. 7. But the fact remains that the acquisition was at the time when defendant No. 7 was the sole member of the family and this position is not denied by Mr. Pal. The very concept of Hindu coparcenery is that there must be more than one member in the family and there is no concept of a Hindu coparcenery with a single male member. Therefore, it has to be held that defendant No. 7 being the only member of his family at that relevant time when plaintiffs 2 and 3 were not born, acquired the property of Ac. 0.60 decs. from P.W. 2 may be either by sale or exchange and such acquisition has to be held as his self-acquisition, and therefore, he was free to deal with the property in whatever manner he liked laid down in the Article quoted by Mr. Pal. Besides this, the area of Ac. 0.40 dec. which defendant No. 7 got on partition also assumed the character of his separate property in the absence of any male issue and such character of separate property continued till 1970 when plaintiff No. 1 was born. The sale of any of these items of property i.e. Ac. 0.40 dec. and Ac. 0.60 decs. prior to 1970 would have been valid having the sanction of law relating to the transfer of separate property of a male Hindu vide Article 257 of the Hindu Law. But the land measuring Ac. 0.40 decs. which defendant No. 7 got on partition continued to be his separate property which remained as such only till the year 1970 when plaintiffNo. 2was born. Once plaintiff No. 2 was born in 1970 and this property was available.as on the date of his birth, this became the joint property of the family of the coparcenery as plaintiff No. 2 was entitled to his share by birth. When the property was transferred in the year 1975 when both the plaintiffs 2 and 3 and defendant No. 7 constituted members of the Hindu coparcenery, transfer of interest of the minors in the property could be competent only on the ground of defendant No. 7 alienating theproperty for discharging any antecedent debt for any legal necessity or for protecting the interest of the minor coparceners vide. Article 295 of the Hind Law.
An antecedent debt means, antecedent in fact as well as time; In other words, the debt must be truly independent and not part of the transaction impeached. Reference may be made to the decision reported in AIR 1924 PC 50 Brij Narayan Rai v. Magla Prasad Rai and AIR 1982 SC 84 Prasad v. Govindaswami Mudaliar. Since the sons are challenging the alienation, it is for the alienee to prove that at the time of transaction such antecedent debt existed and after due enquiry, they in good faith believed that it existed. Reference may be made to the decisions reported in ATR 1957 Andh Pra 744 Koutarapu Venkata Chen-chayya v. Koutarapu Ramalingam and AIR 1957 Andh Pra 557 Venkateswarlu v. Venkata Narasimham.
11. Mr. Pal pressed for a remand of the case for trial of the issue relating to the question as to whether the property was the joint family property or the self-acquired property of defendant No. 7.
In this context, I have already held for the reasons indicated in the foregoing paragraphs that the property in question was the separate property of defendant No. 7. So far as alienation is concerned, the sale deed (Ext. A/1) has also been found to be validly executed except of course the validity has to be judged with regard to the alienation of Ac. 0.40 decs. of land which I have already held as the property of the coparcenery which was alienated after P.Ws. 2 and 3 were born. It goes without saying that the plaintiffs cannot claim any right over Ac. 0.60 decs. of land which is the self-acquisition of defendant No. 7 and validly transferred under the sale deed and the appeal stands dismissed so far as that property is concerned.
So far as Ac. 0.40 decimals of land is concerned, on going through the evidence on record, I find no material to hold whether the suit property was transferred by defendant No. 7 for discharging the antecedent debt or for any legal necessity or even to protect theinterest of the minors and whether transferees had in fact made enquiry about the existence of any such legal necessity or otherwise. Therefore, I accept the contention of Mr. Pal that an issue should be tried by the trial Court and accordingly I remand the case for a finding on the following issue:
Issue
Whether the sale deed dated 15-11-75 (Ext. A/1) in respect of Ac. 0.40 decimals of land which defendant No. 7 got on partition vide Ext. 5 was executed by him for legal necessity and if so, whether it conveyed a valid title in favour of the transferees and if so to what extent?
12. In the result, the appeal is partly allowed. So far as the plaintiffs' claim of title in respect of Ac. 0.60 decimals of land is concerned, the appeal is dismissed and so far as the rest part of the land is concerned, the case is remanded to the lower court for trial of the issue, to be followed by a judgment and decree after giving opportunity to the parties to adduce any further evidence in the matter. In the peculiar circumstances of the case, parties to bear their own costs.