(Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree dated 20.2.2007 made in O.S.No.34 of 2005 on the file of Principal District judge, Vellore.)
R.BANUMATHI, J.
This appeal arises out of Judgment in O.S.No.34 of 2005 dismissing the suit filed by S.T.Arumugam Mudaliar on behalf of his minor grand children for partition.
2. The plaintiff Arumugam Mudaliar has three sons viz., Karthikeyan, Tamilarasan (1st defendant) and Balamuthu. Minor plaintiffs are the daughters of the said Tamilarasan (1st defendant). The 2nd defendant is the wife of the 1st defendant. A family partition was effected under Ex.A.1 partition deed (dated 26.3.1990) and in the said partition, the suit properties were allotted to the share of the 1st defendant. Since there was dispute in respect of the allotment of properties in respect of Survey Nos.219 and 220/1, Karthikeyan filed suit in O.S.No.90 of 1992 on the file of District Munsif's Court, Vellore for declaration and injunction and the said suit was decreed in part after full trial. The appeal preferred against the said judgment in A.S.No.81 of 1996 was dismissed. In respect of the same survey numbers, there was another round of litigation by the 1st defendant Tamilarasan and his another brother Balamuthu in O.S.No.729 of 1996.
3. Case of plaintiffs is that the 1st defendant is not looking after the family and is acting against and adverse to the interest of the minors. The 1st defendant is a liquor addict and taking advantage of his addiction to liquor the 3rd defendant had taken two sale deeds Ex.A.8 (dated 16.7.2004 and Ex.A.9 (dated 16.9.2004) from the 1st defendant in respect of the property in Survey Nos.219 and 220/1. The 3rd defendant had taken documents incorporating the self serving recitals based upon Ex.A.1 partition deed. Further case of plaintiff is that Exs.A.8 and A.9 sale deeds are very much against the interest of the minors. In view of amended Hindu Succession Act, minor plaintiffs, being daughters of defendants 1 and 2, have become entitled to equal shares and that each of the minor defendants are entitled to 1/3rd share in the suit properties. Since minor plaintiffs are not eo'nominee parties to the sale deeds Exs.A.8 and A.9 ,minor plaintiffs are not bound by Exs.A.8 and A.9 sale deeds and therefore the sale deeds are not liable to be set aside the sale deeds. Alleging that he is taking care of minors, on behalf of the minor plaintiffs, their paternal grandfather Arumugam Mudaliar filed the suit seeking for division of properties into three equal shares and to allot two such shares to the plaintiffs.
4. Defendants 1 and 2 resisted the suit contending that the 1st defendant is doing pawn broker business and that the minor daughters are in the care and custody of defendants 1 and 2 and that the 1st defendant is giving good education to the minor plaintiffs. The 1st defendant denied having been addicted to drinks as alleged by his father Arumugam Mudaliar. According to defendants, the property was sold to the 3rd defendant for valuable consideration and that the sale was only for developing the 1st defendant's pawn broker business and for the benefit of the family and also to provide good education and shelter to the minor children. The 1st defendant has averred that he sold the property as kartha and manager of the family and that too, for the benefit and welfare of the minor children. Defendants further averred that the father of 1st defendant viz., Arumugam Mudaliar is a court litigant and when the minor children are under the care and custody of the 1st defendant, he cannot be the next friend of the minor children to maintain the suit. Defendants raised objection as to the maintainability of the suit filed by the paternal grandfather without getting himself declared as a next friend of the minor plaintiffs.
5. On the above averments, four issues were framed in the trial Court. On behalf of the plaintiffs, Arumugam Mudaliar examined himself as P.W.1 and Exs.A.1 to A.10 were marked. On the side of defendants, the 1st defendant examined himself as D.W.1 and Exs.B.1 to B.8 were marked.
6. Upon consideration of oral and documentary evidence, on Issue No.2 maintainability of suit by Arumugam Mudaliar, trial Court held that the minor children are under the care and custody of the 1st defendant and 1st defendant had also taken Life Insurance Policy in the name of his wife - 2nd defendant and also the children and therefore Arumugam Mudaliar had no right to file the suit onbehalf of the minors. Insofar as Issue No.1, trial Court held that the suit property is the ancestral property belonging to the 1st defendant. Trial Court further held that the first defendant sold the property as the kartha of the joint Hindu family for his pawn broker business and also for the benefit of the family and on those findings dismissed the suit.
7. Being aggrieved by the dismissal of suit, Arumugam Mudaliar - paternal grandfather of minor plaintiffs filed this appeal. Learned counsel for appellant contended that the 1st defendant is doing pawn brokerage and is well off and therefore there was no necessity to sell the property. Placing reliance upon number of decisions, learned counsel for appellant contended that as contemplated under Section 8 of Hindu Minority and Guardianship Act, first defendant had not obtained permission of the Court to sell the minors' property and therefore Exs.A.8 and A.9 sale deeds are not binding upon the plaintiffs. It was further submitted that the recitals incorporated in Exs.A.8 and A.9 sale deeds are self serving and no evidence was adduced to show as to what was the necessity to sell the properties and the trial Court failed to appreciate the evidence in proper perspective and erred in dismissing the suit.
8. Taking us through the evidence, the learned counsel appearing for the respondents/defendants contended that the father - 1st defendant is taking care of the minor plaintiffs and only the 1st defendant is educating the minor children and also taken Insurance Policy in the name of 2nd defendant as well as in the name of minor plaintiffs and while the 1st defendant is so taking care of the minors, the suit filed by the paternal grandfather onbehalf of the minor plaintiffs is not maintainable. The learned counsel would further submit that absolutely there is no evidence to prove that the 1st defendant is acting against the interest of the minors and the trial Court rightly dismissed the suit and the judgment warrants no interference.
9. We have heard Mr.T.Susindran, learned counsel appearing for the 3rd respondent. Learned counsel for 3rd respondent/3rd defendant submitted that the 3rd defendant is a bonafide purchaser for value and there is no bonafide intention in the suit filed by the minor plaintiffs' paternal grandfather.
10. Upon consideration of the rival contentions and the judgment of the trial Court and the evidence on record, the following points arise for determination in this appeal:
“1. When the father of the minor plaintiffs is taking care of the minor plaintiffs, without getting himself declared as the guardian, can the paternal grandfather maintain the suit for partition?
2. Whether Exs.A.8 and A.9 sale deeds are not for family necessity and benefit of the minor plaintiffs?
3. Whether the trial Court was right in dismissing the suit?
11. Points 1 to 3:- There is no dispute that the suit properties Ac.1.26 cents in S.F.No.1466/1; 1/4th share in S.No.26/3 and one acre out of S.No.219 2.53 acres and 220/1 5.58 acres. , were allotted to the 1st defendant under Ex.A.1 partition deed (dated 26.3.1990) and are his ancestral properties. There were other litigations in respect of the land in Survey Nos.219-220/1 filed by the 1st defendant's brother Karthikeyan in O.S.No.90 of 1992 for declaration and permanent injunction. The said suit was partly decreed in respect of two acres in S.No.219 and 220/1 against which the appeal was preferred in A.S.No.81 of 1996 and the said appeal came to be dismissed. There was also another round of litigation filed by the 1st defendant and his another brother Balamuthu in O.S.No.729 of 1996. For resolving the points for determination in this appeal, the earlier round of litigations may not be relevant. Suffice to note that the suit properties are the ancestral properties of the 1st defendant, which are in possession and enjoyment of Hindu joint family of the 1st defendant.
12. The partition suit has been filed by paternal grandfather on behalf of minor daughters of the 1st defendant. In his evidence, P.W.1 stated that the 1st defendant is addicted to drinks and he is not taking care of the minor plaintiffs and without any family necessity the 1st defendant had sold the properties in Survey Nos.219 and 220/1A1 to the 3rd defendant. P.W.1 stated that he is taking care of minor plaintiffs and he is educating them. Even though P.W.1 stated that he is taking care of minors, he has not produced any document to substantiate the same. No document was produced that the minor children are being educated by the paternal grandfather.
13. Refuting the averments in the plaint and also evidence of P.W.1, in his evidence, the first defendant D.W.1 denied being addicted to drinks. D.W.1 stated that he is doing pawn broker business and that the minor daughters are in his care and custody and his daughters are studying in reputed schools in Vellore. D.W.1 had also taken Insurance Policies from Life insurance Corporation Exs.B.1 and B.8 in the name of his 1st wife defendant No.2. The 1st defendant had also taken Ex.B.4 Insurance policy in the name of 1st plaintiff minor Vinodini. The 1st defendant had taken policies - Exs.B.5, B.6 and B.7 in his own name. D.W.1 had categorically stated that the minor daughters are residing with defendants 1 and 2 and that they are taking care of the minor daughters.
14. As per Section 6 of Hindu Minority and Guardianship Act, in the case of boy or unmarried girl, the father is the natural guardian and after him, the mother is the natural guardian of minor child. When the father and mother of minor plaintiffs are alive, they are the natural guardians to act on behalf of minor plaintiffs. The Act also provides that the natural guardian alone has got the power to deal with the immovable properties of the minors.
15. Arumugam Mudaliar, now claiming to be the guardian of the plaintiffs, is not the natural guardian. He has also not established that minor plaintiffs are living with him and that he is bringing up the minor plaintiffs and that the defendants 1 and 2 are acting against the interest of the minor plaintiffs. When the parents of minor plaintiffs are alive and in the absence of any convincing evidence that the minor plaintiffs are living with the paternal grandfather, the suit filed by the paternal grandfather as the guardian of minor plaintiffs seeking partition is not maintainable. The finding of the trial Court on Issue No.2 that minor children are not under the care and protection of the paternal grandfather is based on evidence and we do not find any reason to interfere with the findings of the trial Court on Issue No.2.
16. Admittedly, the suit properties are the ancestral properties and are in possession and enjoyment of the joint Hindu family of which 1st defendant is the kartha. The 1st defendant, being the kartha of Hindu joint family, had sold Ac.1.00 in Survey No.219 out of 2.53 acres under Ex.A.8 sale deed (dated 16.7.2004) to the 3rd defendant for Rs.1,00,000/-. One of the attesting witness of Ex.A.8 sale deed is none other than the second defendant. Under Ex.A.9 sale deed dated 16.9.2004, again the 1st defendant sold 0.50 cents in Survey No.220/1A1 to the 3rd defendant for Rs.3 lakhs. In Exs.A.8 and A.9 sale deeds, the properties were sold to the 3rd defendant for family expenses and benefit of the family and also for construction of the houses. The relevant recitals in Exs.A.8 reads as under:-
Tamil
Likewise, the recitals in Ex.A.9 reads as under:-
Tamil
17. In his evidence, D.W.1 also reiterated the recitals in Exs.A.8 and A.9 that the properties were sold only for his business and for family necessity. The above recitals in Exs.A.8 and A.9 would show that the 1st defendant sold the property only for family necessity. Admittedly, the 1st defendant is a pawn broker and has obtained Ex.B.1 - pawn broker licence to do the said business in 2002 and the same was renewed from time to time. When the 1st defendant is doing pawn broker business, naturally, he would have been in need of money either for doing the business or for its development. The evidence of D.W.1 that he sold the properties under Exs.A.8 and A.9 for his business and also for construction of house would show that the sale was for family necessity. The property belonging to a Hindu joint family is ordinarily managed by the father in his capacity as Kartha and as such he has special powers of alienating coparcenery properties. The Manager of a Hindu joint family has a power to alienate coparcenery property when there is a legal necessity.
18. The legal position of kartha or manager of a Hindu family has been considered in number of cases. In SUNIL KUMAR and ANOTHER VS. RAM PRAKASH and OTHERS, (AIR 1988 SUPREME COURT 576), the Supreme Court held as under:
"21. In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property." The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interests. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.
22. The legal position of karta or manager has been succinctly summarised in the Mayne's Hindu Law (12th Ed. para 318) thus:
"318. Manager's Legal position-"The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners. It is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees."
23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate. Such alienation would bindthe interests of all the undivided members of the family whether they are adults or minors. ..."
19. The ratio of above decision is squarely applicable to the case on hand, The 1st defendant father, as Kartha of the joint Hindu family, has the power to deal with the properties for family necessity. The family necessity has been clearly stated in the recitals of Exs.A.8 and A.9 - sale deeds and also in the evidence of D.W.1. Where any such transaction has been entered into for legal necessity by a Hindu joint family Kartha, it would be deemed for and onbehalf of the family. While acting as manager of the Hindu joint family, the 1st defendant, acting as a prudent man, had sold the property for the family benefit and for other necessities as incorporated in Exs.A.8 and A.9 sale deeds. There is nothing to show that there was no legal necessity and that the alienations were imprudent acts.
20. In his evidence, D.W.1 stated that Ex.A.9 sale deed was executed for Rs.9,20,000/-, whereas sale consideration of Rs.3,00,000/- has been incorporated in Ex.A.9 sale deed. Learned counsel for appellant submitted that as per Ex.A.10, guideline value of the property in Survey No.220/1 is Rs.48/- per sq.ft. Drawing our attention to the evidence, learned counsel for appellant contended that stating a lesser sale consideration in Ex.A.9 sale deed would show that the said sale transaction was not a bonafide transaction. The above contention does not merit acceptance. It is a matter of common knowledge that either for the purpose of saving the stamp duty or for other reasons a lesser sale consideration is recited in the sale deed. If the sale is justified by legal necessity and purchaser pays fair price on the property sold and the manager of the Hindu joint family acted in good faith, the transaction cannot be doubted. The learned counsel for appellants placed reliance upon number of judgments viz.,2006(1) CTC 390 (Thiruvenkada Gounder (died) Vs. Ammaiappan @ Kothandaraman); (2004) 8 SCC 785 (Nangali Amma Bhavani Amma); 1985 MLJ 407 (M.Thilakam Vs. M.R.Radhika); (2001(3) CTC 316)Vishwambhar Vs. Laxminarayana (dead) through L.Rs. K.Rajeswari Vs. M.V.Shanmugam; CDJ 2011 MHC 1414 (K.Rajeswari Vs. M.V.Shanmugam) and CDJ 2001 SC 892 (Madhegowda (Dead) by LRs Vs. Ankegowda (Dead) by L.Rs.)
21. The above judgments deal with minor's property and the necessity of obtaining permission for alienating the minor's property. In the case on hand, we are concerned with the minors' undivided interest in the joint family property. In Section 6 of the Hindu Minority and Guardianship Act, while referring to minor's property, Section expressly states "excluding the minor's undivided interest in joint family property". Section 12 of Hindu Minority and Guardianship Act recognises the principle that no guardian can be appointed in respect of minor's undivided interest in the joint family properties, where the property is under the Management of an adult. Only where the minor is sole surviving coparcener, a guardian can be appointed in respect of the joint family property. The minors' undivided interest in joint family property, which is under the management of the adult member of the family viz., the father first defendant. The same is not within the purview of Hindu minority and Guardianship Act. Hence, the judgments relied upon by the learned counsel for appellants have no bearing to the case on hand.
22. Upon analysis of oral and documentary evidence and pointing out that the minor plaintiffs are residing with their parents viz., defendants 1 and 2 and that the defendants 1 and 2 are taking care of the minor plaintiffs, the trial Court rightly dismissed the suit. The analysis of evidence and the reasonings recorded by the trial Court do not suffer from any error warranting interference in this appeal.
23. For the foregoing reasons, the appeal is dismissed with costs of respondents.