Judgment:
(RSA filed under Sec. 100 of CPC., against the judgment and decree dated 9.10.2009 passed in R.A.No.551/2005 (Old No.108/1997 on the file of the Civil Judge (SR.DN) and ACJM, Karkala)
1. In this regular second appeal, the question that falls for consideration is, whether the lower Appellate Court was in error in applying the provisions of Section 29(1) of Madras Aliya Santhana Act, 1949 (the ‘Madras Act’ for short) while holding that the sale deeds executed by defendants 11 to 13 being void were not binding on defendants 1 to 10?
2. Yet another question urged is whether the lower Appellate Court has erred in entertaining the contention regarding the applicability of the provisions contained under Section 29 of the Madras Act, though the same was not pleaded before the trial Court.
3. The appellant was not a party in the trial Court, nor was he a party in the first appeal. The father of the appellant herein was the plaintiff in O.S.No.404/1987. He filed the said suit seeking partition and separate possession of the undivided interest of defendants 11 to 13 in the properties sold to him by defendants 11 to 13. Admittedly, defendants 1 to 13 were members of Aliya Santhana family and the plaint ‘A’ schedule properties belonged to the family. The plaintiff claimed to have purchased the shares of defendants 11 to 13 in the ‘A’ schedule properties under two sale deeds dated 12-5-1981 and 19-11-1986.
4. The case of the plaintiff was that by virtue of the sale deeds executed, they had become the owners and sharers in the suit schedule properties and therefore they were entitled for equitable partition having stepped into the shoes of defendants 11 to 13.
5. The trial Court found that the plaintiff proved that he had purchased the shares of defendants 11 to 13 in respect of Sy.No.187 vide sale deed dated 12-11-1991 for Rs.1,000/- and in respect of Sy.Nos. 76, 186, 187 and 309 by way of sale deed dated 19-11-1996 for a sum of Rs.4,000/- and thereby became co-sharers stepping into the shoes of the transferor-defendants and therefore were entitled for partition of 3/13th share in the ‘A’ schedule property.
6. The trial Court decreed the suit directing partition and separate possession by metes and bounds and to put the plaintiff in separate possession of 3/13th share allotted to defendants 11 to 13 in the actual partition.
7. This judgment was challenged in appeal before the learned Civil Judge (Sr.Dn), Karkala, in R.A.No.551/2005. In the appeal, for the first time, the appellants contended that the sale deeds executed by defendants 11 to 13 were void, illegal and opposed to the provisions contained in Section 29(1) of the Madras Act.
8. The plaintiff resisted this contention inter-alia contending that such a contention was impermissible as the same was not taken before the trial Court. It was also contended that the Madras Act had no application after the coming into force of the Hindu Succession Act, 1956.
9. The Appellate Court accepted the contention of the appellants and reversed the judgment and decree passed by the trial Court holding that in the light of the provisions contained in Section 29(1) of the Madras Act, the members of Aliyasanthana family had no right to sell the properties and therefore the plaintiff did not get any right under the two sale deeds in question in respect of the suit schedule ‘A’ properties. Aggrieved by this finding and the judgment and decree passed by the Appellate Court, the present second appeal is filed.
10. Learned counsel for the appellant has taken me through Sections 4, 7(2) and 30 of Hindu Succession Act and also Section 37-A of Madras Act. Referring to the judgments of the Apex Court in the case of (1) Sundari and others Vs Laxmi and others – AIR 1980 SC 198 and (2) Ramanna Rai and another vs Jagannatha and others – AIR 1982 Karnataka 270, he contends that the lower Appellate Court was in clear error in applying the provisions contained in Section 29(1) of the Madras Act.
11. Whereas, the learned counsel appearing for the 3rd respondent, placing strong reliance on the judgment in the case of Ramakka Shedthi and another vs Anthayya Shetty and others – ILR 1980(1) Karnataka 111 and the Full Bench judgment of this Court in the case of Sundara Adapa and others vs Girija and others – 1962 Mys.L.J 1, contends that provisions of Section 29(1) of the Madras Act, as amended by the Karnataka Amendment, has been rightly applied by the Appellate Court.
12. In the light of respective contentions, I have carefully examined the entire material on record and the provisions referred to as also the judgments relied upon by both the sides.
13. It is held by a Division Bench of this Court in Ramakka Shedthi’s case referred to supra that as per the customary Aliyasanthana Law, a person or a kavaru shall not enforce partition of the kutumba properties and that no member had any power to dispose of his undivided share. It was only by the Aliyasanthana Act (Madras Act IX of 1949) a kavaru or deemed kavaru was conferred with a right to ask for partition. But, even there under, he had no right to make a gift or sale in respect of his undivided interest in the family properties (refer to para 8). It is further observed therein that the Hindu Succession Act (Act 30 of 1956) made some in roads into customary Aliyasanthana Law, in as much as, as per Section 7(2) and the Explanation appended thereto, his undivided interest in the kutumba properties would devolve on his heir as provided by the Hindu Succession Act and such property is capable of being disposed of by sale or other testamentary device.
14. Though the question involved in the aforesaid decision was with reference to the validity of a gift made by a member of the kutumba, by considering the provisions contained in the Madras Act and the provisions contained in Sections 7(2) and 30 of the Hindu Succession Act, the Division Bench has observed in paragraph 15 as under:-
“15. It is clear from these observations, by the introduction of Sections 7(2) and 30, a person governed by the Aliyasanthana Law is conferred a right to deal with his undivided interest which was not available to him before the Hindu Succession Act came into force. But, that right is not absolute in terms. It could be dealt with or disposed of only in the manner provided by Section 7(2) and Explanation to Section 30. Under Section 7(2), the undivided interest of a member in a kutumba devolves on his heirs as provided for under the Hindu Succession Act, and under Explanation to Section 30, such interest is capable of being disposed of by Will or other testamentary device. These rights, if we may say so, are similar to the rights conferred by Sections 6 and 30 on a coparcener in a Mithakshara family”.
15. Although in the instant case the transactions are that of sale made by certain members of the family, having regard to the language of Sections 7(2) and 30 contained in the Hindu Succession Act, it is clear that there is nothing in these Sections which removes the restriction contained in the Aliyasanthana Law with regard to the alienation by a member of the family. Section 7(2) only provides for testamentary or intestate succession of undivided interest in the kutumba upon death of a person while the Explanation to Section 30 provides that a Hindu can dispose of by Will his interest in the property of the kutumba. No other right is conferred under these two Sections. It is in this back-ground that the Division Bench in Ramakka Shedthi’s case has observed in paragraph 18 that:-
“The Court however desirable, cannot make a law which the Legislature in their wisdom thought fit not to legislate. This is not a matter for judicial seal not left for slow and imperceptible evolution in indificual cases brought at the expence of litigants”
These observations were made after interpreting the provisions contained in Sections 7(2) and 30 of the Hindu Succession Act.
16. In the light of the provisions contained in the Hindu Succession Act, the provisions of Aliyasanthana Law are applicable to the present case as well, although in the instant case what is involved is not a gift but sale, particularly because, Section 29(1) of the Madras Act enacts that no sale or mortgage of any immovable property of a kutumba and no lease of any such property either for a premium returnable wholly or in part or for a period exceeding 5 years, shall be valid, unless it is executed by the Yajamana, for consideration, for Kutumba necessity or benefit, and with the written consent of the majority of the major members of the kutumba.
17. It is also necessary to notice here that the Madras Act was amended by Karnataka Act 1 of 1961 and 30 of 1978 and the provisions contained in Section 29 has been left undisturbed, whereas certain other provisions, of which we are not concerned here, have been amended. It is also necessary to notice here that Section 4(b) of the Hindu Succession Act states that any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any other provisions of the Act, save as otherwise expressly provided in this Act.
18. It is not the case of the Appellant before this Court that any other provision of the Hindu Succession Act provides for and confers an express authority on the member of the kutumba to dispose of the undivided share in the joint family property. Though this is a recognized principle in so far as Mithakashara Law is concerned and is permitted in certain parts of the country, there is no express provision in the Hindu Succession Act making such a provision or enacting a prohibition against it. Having regard to the same and in the wake of the fact that Section 29 of the Madras Act continues to operate and as the parties are governed by the said Act apart from the Hindu Succession Act, it has to be necessarily held that the members of the family, in the instant case, did not have any right to alienate their undivided share in the family properties.
19. In the circumstances, the lower Appellate Court was right and justified in reversing the judgment and decree passed by the trial Court.
20. As regards the other contention urged by the learned counsel for the Appellants that this question was for the first time raised before the Appellate Court and the same was not permissible, it has to be stated that since it is a pure question of law and does not involve any finding to be recorded on any of the disputed facts, it was open for the Appellants to raise the same and the lower Appellate Court was justified in entertaining the same.
21. The judgments on which learned counsel for the appellant has placed reliance have no bearing on the issue raised in this case.
22. In the result and for the foregoing, the appeal is dismissed.