B.Narsa Reddy and OThe Vs. Ramulu and Oth - Court Judgment

SooperKanoon Citationsooperkanoon.com/1118176
CourtAndhra Pradesh High Court
Decided OnDec-11-2013
JudgeL.NARASIMHA REDDY AND THE HON'BLE SR
AppellantB.Narsa Reddy and Othe
RespondentRamulu and Oth
Excerpt:
the hon'ble sr.justice l.narasimha reddy and the hon'ble sr.justice m.s.k.jaiswal l.p.a.no.258 of 2001 11-12-2013 b.nars.reddy and others....appellants ramulu and other....respondents counsel for the appellants:sri.y.srinivasa murthy counsel for the respondents:sr.janardhan reddy : ?.cases referred: judgment: (per the hon'ble sr.justice l.narasimha reddy) defendant no.2 and the legal representatives of defendant no.3 in o.s.no.128 of 1982 on the file of the district judge, adilabad are the appellants. respondents 1 to 3-plaintiffs filed the suit against their father, respondent no.4 (defendant no.1).and the appellants for the relief of partition and separate possession of plaint 'a' schedule, an extent of acs.7.00 of sonala village, adilabad district and immovable properties in schedule 'b'. for the sake of convenience, the parties are referred to as arrayed in the suit. the plaintiffs, being minors.were represented by their mother. it was pleaded in the plaint that the joint family, comprising of the plaintiffs and their father, defendant no.1, owned the suit schedule properties and that the same are liable to be partitioned. it was pleaded that defendant no.1 was addicted to vices of alcoholism, gambling etc., and sold plaint 'a' schedule property to defendant nos.2 and 3, to meet the expenditure incurred for such vices. they also pleaded that the sale is not binding on them, since it was not for any genuine family necessity and that defendant nos.2 and 3 have taken advantage of the weakness of defendant no.1 and have knocked away the valuable property. defendant no.1 filed a written statement admitting the contents of the plaint. he stated that he was addicted to the vices and to meet the expenditure for that, he sold the land. he stated that a preliminary decree, as prayed for, may be passed. the actual contest to the suit was by defendant nos.2 and 3. they stated that defendant no.1 intended to migrate to a village in karimnagar district, where his brother was living and before that, he wanted to clear the debts to various financial institutions and perform the marriage of his daughter. in march, 1979, defendant no.1 and his wife (p.w.1) are said to have approached them with a proposal to sell the land and by accepting the offer, they have paid advance of rs.500/- each. it was further mentioned that the consideration was agreed at rs.4,500/- per acre and with the money paid by them, defendant no.1 cleared the loans to the state bank of india, the primary agricultural cooperative society (for short 'the society') and to a private cooperative bank. they submitted that the intention of defendant no.1 was to settle in the village in karimnagar district in view of the fact that his brother did not have any children. according to them, defendant no.1, the plaintiffs and their entire family proceeded to that village, after selling all their movable and immovable properties in sonala village. it was alleged that shortly thereafter, they returned to sonala on account of a quarrel between defendant no.1 and his brother. the reason is said to be that a sum of rs.10,000/- was borrowed from defendant no.1 by his brother and that he was not refunding the same. they pleaded that the suit was filed at the instance of defendant no.1 in a collusive manner. the trial court decreed the suit through its judgment, dated 25.03.1985. aggrieved by that, defendant nos.2 and 3 filed a.s.no.1894 of 1985. a learned single judge of this court dismissed the appeal through judgment, dated 26.08.1999. hence, this letters patent appeal. sr.y.srinivasa murthy, learned counsel for defendant nos.2 and 3, submits that the fact that the suit was filed in a collusive manner with the sole objective of knocking away the property is evident from the tone and tenor of the written statement filed by defendant no.1. he contends that the plea that defendant no.1 was addicted to vices and bad habits was not at all substantiated and on the other hand, p.w.1, the wife of defendant no.1, categorically admitted that she does not know the persons with whom defendant no.1 was playing cards or took intoxicants. learned counsel submits that she categorically admitted that defendant no.1 never entered their house, in intoxicated condition and that she did not make any effort to prevent defendant no.1 from undertaking such activities. learned counsel further submits that extensive oral and documentary evidence was adduced by his clients to establish that the sale proceeds were utilized for clearing the debts due to various financial institutions, such as banks and for performance of the marriage of the daughter of defendant no.1, but the trial court jumped to conclusions that there did not exist any family necessities. learned counsel submits that defendant no.1 was so perfect and meticulous in financial management that after clearing the debts, with the sale proceeds of the land, he made fixed deposits of the surplus amounts not only in his name, but also in the name of his minor children. it is also pleaded that not a single instance of defendant no.1 having resorted to any vices was spoken to, by any of the witnesses. sr.janardhan reddy, learned counsel for the plaintiffs, on the other hand, submits that defendant no.1 sold a valuable item of ancestral property, the source of livelihood for the family, in favour of defendant nos.2 and 3, though there was no genuine family necessity. he contends that taking advantage of the weakness of defendant no.1, defendant nos.2 and 3 have knocked away the property. he submits that the trial court has taken into account, the evidence on record and attendant circumstances and has recorded a finding to the effect that the sale in favour of defendant nos.2 and 3 is not valid in law. the suit was basically filed for the relief of partition and separate possession of the suit schedule properties. however, the principal controvers.in the suit was about the validity of the sale of the plaint 'a' schedule property by defendant no.1, in favour of defendant nos.2 and 3. the trial court framed only one issue, namely ".whether defendant no.1 sold land in survey nos.123 and 123/a situated at sonala to defendant nos.2 and 3 for legal necessity and the latter bona fidely purchased the same after making responsible enquiry about the existence of such legal necessity?.". on behalf of the plaintiffs, p.ws.1 to 4 were examined and no documentary evidence was adduced. on behalf of defendant nos.2 and 3, d.ws.1 to 9 were examined and exs.b1 to b12 were filed. on the suit being decreed by the trial court, defendant nos.2 and 3 filed a.s.no.1894 of 1985 before this court. no points as such were framed in the appeal suit. it was dismissed through judgment, dated 26.08.1999. the points that arise for consideration in this letters patent appeal are as to (1) whether the plaintiffs proved that defendant no.1 was addicted to any vices?. (2) whether the plaintiffs were able to establish that the sale proceeds of the plaint 'a' schedule property were not applied to genuine family necessities?. (3) whether the decree passed by the trial court deserves to be upheld?. point no.1: no specific relief for declaration of sale of plaint 'a' schedule property in favour of defendant nos.2 and 3 was prayed for. had it been a simple suit for partition, it would have been sufficient to implead defendant no.1 alone as party. the very objective of impleading defendant nos.2 and 3 was to assail the sale made in their favour. two sale deeds were filed as exs.b1 and b2. the consideration under ex.b1 is rs.13,500/- and the one under ex.b2 is rs.18,000/-. both of them were executed by defendant no.1, on 26.03.1979. in case the kartha of a hindu joint family sells any item of ancestral property to meet the expenditure incurred on account of his vices or bad habits, the sale cannot be treated as the one for genuine family necessities. the transfer of an item of immovable property made by a person who is otherwise legally competent can be annulled, or ignored, if the grounds recognized by law are proved. otherwise, the wishes of the parties to the transfer need to be respected. things would be different in case parties to such transaction raise any objection or assail the same. defendant no.1 executed the sale deed in respect of plaint 'a' schedule property in the year 1979 and it came under challenge only in the year 1982, that too, not by him. the mother of the plaintiffs deposed as p.w.1. at one stage, she said that the property was not sold by her and her husband, defendant no.1, at all, in favour of defendant nos.2 and 3. the relevant portion reads as under: ".i never went to the house of rajanna and did not sell the land at all.". as regards the habits of defendant no.1, her statement reads as under: ".defendant no.1 is my husband addicted to drinks and ganja. he conducted in such manner since ten years.". beyond that, she did not say anything in the chief-examination. extensive cross-examination was done on this aspect. the relevant portion reads as under: ".it is not true to suggest that we were not getting rs.8,000/- to rs.10,000/- year and that the income from this land was not sufficient for maintenance. my brother residence in bazarhatnoor by name chinnaiah. there was no panchayat regarding to the drinking etc., of my husband. i do not know how much quantity of arrack my husband drink daily. he was not drinking in the house. i do not know how much he was spending for smoking gnajia. i do not know where he was playing cards. i did not attempt to set right my husband. i did not ask my husband in whose company he was drinking etc.i did not complain to any body about the bad habits of my husband. it is not true to suggest that my husband was not having any bad habits as alleged by me and that i am giving false evidence for the purpose of this suit.". the remaining part of the evidence of p.w.1 is about the financial status of the family, application of the sale proceeds of the land, etc.p.w.2 is a resident of sonala village. the only statement made by him is that defendant no.1 used to drink alcohol and smoke ganja. in the cross- examination, it was elicited from him that he does not know the age of defendant no.1 and that he did not see him taking drink and smoking ganja, at any point of time. the evidence of p.w.3 is on the same lines. both of them are strangers to the family and they are clearly brought to the field just for the sake of it. normally, whenever allegations are made against a kartha of the joint family that he made alienations to meet the expenditure incurred for his vices, the kartha denies them flatly or at the most, he would remain silent. this is a typical and an extraordinary case where defendant no.1 not only admitted every syllable of the plaint, but also went further to pray that the suit be decreed as prayed for. having filed such a friendly written statement, he did not enter the witness box. it was suggested to p.w.1 that defendant no.1 was accompanying her to the court on every date of hearing. such is the level of collusion between defendant no.1 and his sons. there was absolutely no evidence to prove that defendant no.1 was addicted to bad habits. the record, on the other hand, discloses that defendant no.1 conducted his affairs in a matured and perfect manner. the sale proceeds of the land were applied to clear the debts to the state bank of india, the society and a private bank. he has also made fixed deposits not only in his name, but also in the name of his minor son. it was also alleged that a sum of rs.10,000/- was lent by him to his brother at sircilla. none of these facts pleaded by defendant nos.2 and 3 were contradicted. certain details of these aspects would be considered while discussing point no.2. we, therefore, hold that the plaintiffs failed to prove that defendant no.1 was addicted to any bad habits. point no.2: even if the kartha is not addicted to bad habits, the co.parceners can certainly make an effort to get a sale annulled, if it is not for any genuine family necessities. much, however, would depend upon the evidence that may be adduced by the parties. in the instant case, even while pleading that defendant no.1 was addicted to vices, the plaintiffs pleaded that there did not exist any necessity for the family, warranting the sale of the plaint 'a' schedule property. to prove this aspect, the burden squarely rested upon the plaintiffs, notwithstanding the fact that what is required to be proved is a negative fact. the only witness that can throw light in this aspect is p.w.1. she too was evasive and not specific in this regard. since the fact that is required to be proved is in negative terms.in a way, the burden, to certain extent can be placed upon the contesting defendants. in this behalf, defendant no.2 deposing as d.w.1 narrated every detail of the entire transaction. he stated that initially, a sum of rs.500/- each was paid as advance by himself and defendant no.3 and thereafter, the sale proceeds were utilized by defendant no.1, in clearing the debts. he stated that on the date of sale i.e.on 26.03.1979 itself, defendant no.1 cleared the debt of rs.5,000/- in relation to a loan taken by him for purchasing an oil engine. the relevant ledger was filed as ex.b3. similarly, d.w.4, manager of ajks bank, boath branch stated that defendant no.1 made a deposit of rs.5,000/- with them on 16.07.1979 and that the same was withdrawn on 16.07.1980. it was also mentioned that a separate fixed deposit was made in the name of shankar, plaintiff no.3, in a sum of rs.1000/- and that it was still with the bank. d.w.6 is the paid secretary of the society at sonala. he stated that on 26.03.1979, defendant no.1 cleared the loan amount, which is standing in the name of his wife, p.w.1. d.ws.4 and 6 filed the extracts of the relevant ledgers and they are marked as exs.b4 and b5. there is also consistent version of d.w.1 and other witnesses to the effect that defendant no.1 sold not only the land but also the livestock and other material with a view to permanently migrate to another village in karimnagar district. there was no contradiction of that. another major item of expenditure said to have been incurred by defendant no.1 is in respect of the marriage of his elder daughter. the marriage was performed some time in july, 1979 i.e.four months after the sale of the land. consistently, several witnesses, who attended the marriage, stated that it was performed in a lavish manner in the village and the expenditure would be in the range of 10,000/- to 15,000/-. d.w.1 has also stated that defendant no.1 himself informed him that a sum of rs.10,000/- was given as loan to his brother in a village in sircilla and disputes have arisen, when defendant no.1 made efforts to recover that amount. whatever be the unreliability of the oral statements made by the witnesses in respect of the financial affairs of the third parties, the documentary evidence such as ledgers of banks, have their own evidentiary value. there is nothing to doubt the veracity of the evidence of d.ws.3, 4 and 6 and the documents filed by them. it, therefore, clearly emerges that there existed several items of family debts or necessities and to clear the same, defendant no.1 sold the property. therefore, it cannot be said that the sale of plaint 'a' schedule property in favour of defendant nos.1 and 2 by defendant no.1 was not warranted. the findings recorded by the trial court in this regard cannot be sustained in law. the decree passed by the trial court and affirmed by the learned single judge, deserves to be set aside. point no.3: for all practical purposes, the matter must end with the setting aside of the decree passed by the trial court vis--vis the plaint 'a' schedule properties, whatever be the relevance or otherwise of the decree in respect of 'b' schedule property. as a matter of fact, the learned counsel for the plaintiffs stated that apart from plaint 'a' schedule, there is no other items of which, partition can be sought. the parties are from remote tribal area. the circumstances under which defendant no.1 sold a fairly large extent of land i.e.acs.7.00 may justify it, but the result is that the plaintiffs were totally deprived of their livelihood. the defendants ought to have taken much more care to protect the interest of the minors.before such a vast extent of land is purchased, leaving the family to a condition, where, it has nothing to fall back, for its survival. we are of the view that the defendants i.e.the appellants herein can be required to pay a sum of rs.15,000/- each to the plaintiffs and their mother. for this step, we have taken into account, not only the present value of the land but also its fertility and yielding capacity. we are of the view that no serious prejudice or hardship would be caused to the defendants on this account. hence, the appeal is allowed setting aside the decree passed by the trial court. in its place, there shall be a decree to the effect that the appellants shall jointly pay a sum of rs.15,000/- each to the plaintiffs and their mother within a period of three months from today. in default, the amount shall carry interest at 6% per annum. there shall be no order as to costs. miscellaneous petitions filed in this l.p.a.shall also stand disposed of. ____________________ l. narasimha reddy,j _____________________ m.s.k.jaiswal,j dt:11.12.2013
Judgment:

THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL L.P.A.No.258 of 2001 11-12-2013 B.NaRs.Reddy and Others....APPELLANTS Ramulu and other....RESPONDENTS COUNSEL FOR THE APPELLANTS:Sri.Y.Srinivasa Murthy COUNSEL FOR THE RESPONDENTS:Sr.Janardhan Reddy : ?.cASES rEFERRED: JUDGMENT

: (per the Hon'ble Sr.Justice L.Narasimha Reddy) Defendant No.2 and the legal representatives of defendant No.3 in O.S.No.128 of 1982 on the file of the District Judge, Adilabad are the appellants.

Respondents 1 to 3-plaintiffs filed the suit against their father, respondent No.4 (defendant No.1).and the appellants for the relief of partition and separate possession of plaint 'A' schedule, an extent of Acs.7.00 of Sonala Village, Adilabad District and immovable properties in schedule 'B'.

For the sake of convenience, the parties are referred to as arrayed in the suit.

The plaintiffs, being minORS.were represented by their mother.

It was pleaded in the plaint that the joint family, comprising of the plaintiffs and their father, defendant No.1, owned the suit schedule properties and that the same are liable to be partitioned.

It was pleaded that defendant No.1 was addicted to vices of alcoholism, gambling etc., and sold plaint 'A' schedule property to defendant Nos.2 and 3, to meet the expenditure incurred for such vices.

They also pleaded that the sale is not binding on them, since it was not for any genuine family necessity and that defendant Nos.2 and 3 have taken advantage of the weakness of defendant No.1 and have knocked away the valuable property.

Defendant No.1 filed a written statement admitting the contents of the plaint.

He stated that he was addicted to the vices and to meet the expenditure for that, he sold the land.

He stated that a preliminary decree, as prayed for, may be passed.

The actual contest to the suit was by defendant Nos.2 and 3.

They stated that defendant No.1 intended to migrate to a Village in Karimnagar District, where his brother was living and before that, he wanted to clear the debts to various financial institutions and perform the marriage of his daughter.

In March, 1979, defendant No.1 and his wife (P.W.1) are said to have approached them with a proposal to sell the land and by accepting the offer, they have paid advance of Rs.500/- each.

It was further mentioned that the consideration was agreed at Rs.4,500/- per acre and with the money paid by them, defendant No.1 cleared the loans to the State Bank of India, the Primary Agricultural Cooperative Society (for short 'the Society') and to a private Cooperative Bank.

They submitted that the intention of defendant No.1 was to settle in the Village in Karimnagar District in view of the fact that his brother did not have any children.

According to them, defendant No.1, the plaintiffs and their entire family proceeded to that Village, after selling all their movable and immovable properties in Sonala Village.

It was alleged that shortly thereafter, they returned to Sonala on account of a quarrel between defendant No.1 and his brother.

The reason is said to be that a sum of Rs.10,000/- was borrowed from defendant No.1 by his brother and that he was not refunding the same.

They pleaded that the suit was filed at the instance of defendant No.1 in a collusive manner.

The trial Court decreed the suit through its judgment, dated 25.03.1985.

Aggrieved by that, defendant Nos.2 and 3 filed A.S.No.1894 of 1985.

A learned Single Judge of this Court dismissed the appeal through judgment, dated 26.08.1999.

Hence, this Letters Patent Appeal.

Sr.Y.Srinivasa Murthy, learned counsel for defendant Nos.2 and 3, submits that the fact that the suit was filed in a collusive manner with the sole objective of knocking away the property is evident from the tone and tenor of the written statement filed by defendant No.1.

He contends that the plea that defendant No.1 was addicted to vices and bad habits was not at all substantiated and on the other hand, P.W.1, the wife of defendant No.1, categorically admitted that she does not know the persons with whom defendant No.1 was playing cards or took intoxicants.

Learned Counsel submits that she categorically admitted that defendant No.1 never entered their house, in intoxicated condition and that she did not make any effort to prevent defendant No.1 from undertaking such activities.

Learned counsel further submits that extensive oral and documentary evidence was adduced by his clients to establish that the sale proceeds were utilized for clearing the debts due to various financial institutions, such as Banks and for performance of the marriage of the daughter of defendant No.1, but the trial Court jumped to conclusions that there did not exist any family necessities.

Learned counsel submits that defendant No.1 was so perfect and meticulous in financial management that after clearing the debts, with the sale proceeds of the land, he made fixed deposits of the surplus amounts not only in his name, but also in the name of his minor children.

It is also pleaded that not a single instance of defendant No.1 having resorted to any vices was spoken to, by any of the witnesses.

Sr.Janardhan Reddy, learned counsel for the plaintiffs, on the other hand, submits that defendant No.1 sold a valuable item of ancestral property, the source of livelihood for the family, in favour of defendant Nos.2 and 3, though there was no genuine family necessity.

He contends that taking advantage of the weakness of defendant No.1, defendant Nos.2 and 3 have knocked away the property.

He submits that the trial Court has taken into account, the evidence on record and attendant circumstances and has recorded a finding to the effect that the sale in favour of defendant Nos.2 and 3 is not valid in law.

The suit was basically filed for the relief of partition and separate possession of the suit schedule properties.

However, the principal controveRs.in the suit was about the validity of the sale of the plaint 'A' schedule property by defendant No.1, in favour of defendant Nos.2 and 3.

The trial Court framed only one issue, namely ".whether defendant No.1 sold land in Survey Nos.123 and 123/A situated at Sonala to defendant Nos.2 and 3 for legal necessity and the latter bona fidely purchased the same after making responsible enquiry about the existence of such legal necessity?.".

On behalf of the plaintiffs, P.Ws.1 to 4 were examined and no documentary evidence was adduced.

On behalf of defendant Nos.2 and 3, D.Ws.1 to 9 were examined and Exs.B1 to B12 were filed.

On the suit being decreed by the trial Court, defendant Nos.2 and 3 filed A.S.No.1894 of 1985 before this Court.

No points as such were framed in the Appeal Suit.

It was dismissed through judgment, dated 26.08.1999.

The points that arise for consideration in this Letters Patent Appeal are as to (1) Whether the plaintiffs proved that defendant No.1 was addicted to any vices?.

(2) Whether the plaintiffs were able to establish that the sale proceeds of the plaint 'A' schedule property were not applied to genuine family necessities?.

(3) Whether the decree passed by the trial Court deserves to be upheld?.

Point No.1: No specific relief for declaration of sale of plaint 'A' schedule property in favour of defendant Nos.2 and 3 was prayed for.

Had it been a simple suit for partition, it would have been sufficient to implead defendant No.1 alone as party.

The very objective of impleading defendant Nos.2 and 3 was to assail the sale made in their favour.

Two sale deeds were filed as Exs.B1 and B2.

The consideration under Ex.B1 is Rs.13,500/- and the one under Ex.B2 is Rs.18,000/-.

Both of them were executed by defendant No.1, on 26.03.1979.

In case the Kartha of a Hindu Joint Family sells any item of ancestral property to meet the expenditure incurred on account of his vices or bad habits, the sale cannot be treated as the one for genuine family necessities.

The transfer of an item of immovable property made by a person who is otherwise legally competent can be annulled, or ignored, if the grounds recognized by law are proved.

Otherwise, the wishes of the parties to the transfer need to be respected.

Things would be different in case parties to such transaction raise any objection or assail the same.

Defendant No.1 executed the sale deed in respect of plaint 'A' schedule property in the year 1979 and it came under challenge only in the year 1982, that too, not by him.

The mother of the plaintiffs deposed as P.W.1.

At one stage, she said that the property was not sold by her and her husband, defendant No.1, at all, in favour of defendant Nos.2 and 3.

The relevant portion reads as under: ".I never went to the house of Rajanna and did not sell the land at all.".

As regards the habits of defendant No.1, her statement reads as under: ".Defendant No.1 is my husband addicted to drinks and ganja.

He conducted in such manner since ten years.".

Beyond that, she did not say anything in the chief-examination.

Extensive cross-examination was done on this aspect.

The relevant portion reads as under: ".It is not true to suggest that we were not getting Rs.8,000/- to Rs.10,000/- year and that the income from this land was not sufficient for maintenance.

My brother residence in Bazarhatnoor by name Chinnaiah.

There was no Panchayat regarding to the drinking etc., of my husband.

I do not know how much quantity of arrack my husband drink daily.

He was not drinking in the house.

I do not know how much he was spending for smoking gnajIa.

I do not know where he was playing cards.

I did not attempt to set right my husband.

I did not ask my husband in whose company he was drinking etc.I did not complain to any body about the bad habits of my husband.

It is not true to suggest that my husband was not having any bad habits as alleged by me and that I am giving false evidence for the purpose of this suit.".

The remaining part of the evidence of P.W.1 is about the financial status of the family, application of the sale proceeds of the land, etc.P.W.2 is a resident of Sonala Village.

The only statement made by him is that defendant No.1 used to drink alcohol and smoke ganja.

In the cross- examination, it was elicited from him that he does not know the age of defendant No.1 and that he did not see him taking drink and smoking ganja, at any point of time.

The evidence of P.W.3 is on the same lines.

Both of them are strangers to the family and they are clearly brought to the field just for the sake of it.

Normally, whenever allegations are made against a Kartha of the Joint Family that he made alienations to meet the expenditure incurred for his vices, the Kartha denies them flatly or at the most, he would remain silent.

This is a typical and an extraordinary case where defendant No.1 not only admitted every syllable of the plaint, but also went further to pray that the suit be decreed as prayed for.

Having filed such a friendly written statement, he did not enter the witness box.

It was suggested to P.W.1 that defendant No.1 was accompanying her to the Court on every date of hearing.

Such is the level of collusion between defendant No.1 and his sons.

There was absolutely no evidence to prove that defendant No.1 was addicted to bad habits.

The record, on the other hand, discloses that defendant No.1 conducted his affairs in a matured and perfect manner.

The sale proceeds of the land were applied to clear the debts to the State Bank of India, the Society and a private bank.

He has also made fixed deposits not only in his name, but also in the name of his minor son.

It was also alleged that a sum of Rs.10,000/- was lent by him to his brother at Sircilla.

None of these facts pleaded by defendant Nos.2 and 3 were contradicted.

Certain details of these aspects would be considered while discussing Point No.2.

We, therefore, hold that the plaintiffs failed to prove that defendant No.1 was addicted to any bad habits.

Point No.2: Even if the Kartha is not addicted to bad habits, the Co.parceners can certainly make an effort to get a sale annulled, if it is not for any genuine family necessities.

Much, however, would depend upon the evidence that may be adduced by the parties.

In the instant case, even while pleading that defendant No.1 was addicted to vices, the plaintiffs pleaded that there did not exist any necessity for the family, warranting the sale of the plaint 'A' schedule property.

To prove this aspect, the burden squarely rested upon the plaintiffs, notwithstanding the fact that what is required to be proved is a negative fact.

The only witness that can throw light in this aspect is P.W.1.

She too was evasive and not specific in this regard.

Since the fact that is required to be proved is in negative terMs.in a way, the burden, to certain extent can be placed upon the contesting defendants.

In this behalf, defendant No.2 deposing as D.W.1 narrated every detail of the entire transaction.

He stated that initially, a sum of Rs.500/- each was paid as advance by himself and defendant No.3 and thereafter, the sale proceeds were utilized by defendant No.1, in clearing the debts.

He stated that on the date of sale i.e.on 26.03.1979 itself, defendant No.1 cleared the debt of Rs.5,000/- in relation to a loan taken by him for purchasing an Oil Engine.

The relevant ledger was filed as Ex.B3.

Similarly, D.W.4, Manager of AJKS Bank, Boath Branch stated that defendant No.1 made a deposit of Rs.5,000/- with them on 16.07.1979 and that the same was withdrawn on 16.07.1980.

It was also mentioned that a separate fixed deposit was made in the name of Shankar, plaintiff No.3, in a sum of Rs.1000/- and that it was still with the Bank.

D.W.6 is the Paid Secretary of the Society at Sonala.

He stated that on 26.03.1979, defendant No.1 cleared the loan amount, which is standing in the name of his wife, P.W.1.

D.Ws.4 and 6 filed the extracts of the relevant ledgers and they are marked as Exs.B4 and B5.

There is also consistent version of D.W.1 and other witnesses to the effect that defendant No.1 sold not only the land but also the livestock and other material with a view to permanently migrate to another village in Karimnagar District.

There was no contradiction of that.

Another major item of expenditure said to have been incurred by defendant No.1 is in respect of the marriage of his elder daughter.

The marriage was performed some time in July, 1979 i.e.four months after the sale of the land.

Consistently, several witnesses, who attended the marriage, stated that it was performed in a lavish manner in the Village and the expenditure would be in the range of 10,000/- to 15,000/-.

D.W.1 has also stated that defendant No.1 himself informed him that a sum of Rs.10,000/- was given as loan to his brother in a Village in Sircilla and disputes have arisen, when defendant No.1 made efforts to recover that amount.

Whatever be the unreliability of the oral statements made by the witnesses in respect of the financial affairs of the third parties, the documentary evidence such as ledgers of Banks, have their own evidentiary value.

There is nothing to doubt the veracity of the evidence of D.Ws.3, 4 and 6 and the documents filed by them.

It, therefore, clearly emerges that there existed several items of family debts or necessities and to clear the same, defendant No.1 sold the property.

Therefore, it cannot be said that the sale of plaint 'A' schedule property in favour of defendant Nos.1 and 2 by defendant No.1 was not warranted.

The findings recorded by the trial Court in this regard cannot be sustained in law.

The decree passed by the trial Court and affirmed by the learned Single Judge, deserves to be set aside.

Point No.3: For all practical purposes, the matter must end with the setting aside of the decree passed by the trial Court vis--vis the plaint 'A' schedule properties, whatever be the relevance or otherwise of the decree in respect of 'B' schedule property.

As a matter of fact, the learned counsel for the plaintiffs stated that apart from plaint 'A' schedule, there is no other items of which, partition can be sought.

The parties are from remote tribal area.

The circumstances under which defendant No.1 sold a fairly large extent of land i.e.Acs.7.00 may justify it, but the result is that the plaintiffs were totally deprived of their livelihood.

The defendants ought to have taken much more care to protect the interest of the minORS.before such a vast extent of land is purchased, leaving the family to a condition, where, it has nothing to fall back, for its survival.

We are of the view that the defendants i.e.the appellants herein can be required to pay a sum of Rs.15,000/- each to the plaintiffs and their mother.

For this step, we have taken into account, not only the present value of the land but also its fertility and yielding capacity.

We are of the view that no serious prejudice or hardship would be caused to the defendants on this account.

Hence, the appeal is allowed setting aside the decree passed by the trial Court.

In its place, there shall be a decree to the effect that the appellants shall jointly pay a sum of Rs.15,000/- each to the plaintiffs and their mother within a period of three months from today.

In default, the amount shall carry interest at 6% per annum.

There shall be no order as to costs.

Miscellaneous petitions filed in this L.P.A.shall also stand disposed of.

____________________ L.

NARASIMHA REDDY,J _____________________ M.S.K.JAISWAL,J Dt:11.12.2013