Sundar Yadav and anr. Vs. Asha Kumari and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/849532
SubjectFamily
CourtPatna High Court
Decided OnApr-27-2009
Judge S.N. Hussain, J.
Reported inAIR2009Pat131
AppellantSundar Yadav and anr.
RespondentAsha Kumari and ors.
DispositionAppeal dismissed
Cases ReferredSat Narain v. Rai Bahadur Sri Kishen Das (since
Excerpt:
- s.n. hussain, j.1. this second appeal has been filed by the plaintiffs-respondents-appellants challenging the judgment and decree of the learned court of appeal below.2. the matter arises out of title suit no. 101 of 1976, which was filed by the plaintiffs for the following reliefs:(a) declaration that sale deeds dated 12-6-1976 (exts. c and c/l) executed by defendants 2nd party in favour of defendants 1st party were null and void and inoperative and defendant 1st party had not acquired any title to the suit land.(b) decree for recovery of possession in respect of the suit land covered by the said illegal and invalid sale deeds dated 12-6-1976.(c) cost of suit be awarded to the plaintiffs.(d) any other reliefs as the court may consider proper.3. notices were issued to the defendants, who appeared and contested the suit and after considering the pleadings of the respective parties the learned trial court framed the following issues:(i) is the suit as framed maintainable? (ii) have the plaintiffs valid cause of action ?(iii) is the suit barred by law of limitation ?(iv) whether the lands alleged to be transferred by sale deeds dated 12-6-1976 were joint family properties or self-acquired property of chanchal yadav?(v) are the sale deeds dated 12-6-1976 executed by chanchal yadav in favour of defendant 1st party, legal, valid and for consideration ?(vi) have defendant 1st party acquired title over the suit land by virtue of sale deeds dated 12-6-1976 or otherwise?(vii) have the plaintiffs been dispossessed from the suit land forcibly by defendants during the pendency of above suit?(viii) are the plaintiffs entitled to a decree as claimed in the suit ?(ix) to what relief, if any, the plaintiffs are entitled to?4. after considering the evidence produced and arguments led by the parties the learned additional munsif-1, bhagalpur decreed the suit on contest with cost vide his judgment and decree dated 30-7-1988 after arriving at the following findings:(a) schedule-a land purchased in the year 1952 was the joint family property of the plaintiffs along with their father and it was not self acquired property of their father chanchal yadav.(b) sale deeds (exts. c and c/l) are null and void, ab initio and the same does not confer any right or title upon defendant 1st party and they are not legal and valid documents and are also not for just and proper consideration.(c) sale deeds (ext. c and c/l) being of 12-6-1976 and the instant suit also having been filed in the year 1976 it is well within the period of limitation.(d) plaintiffs have proved by oral evidence that they have been dispossessed from the suit land from november, 1977 during the pendency of the suit.(e) defendants have failed to prove the case of adverse possession.(f) chanchal yadav had no right to sell the coparcenary property and hence sale deeds dated 12-6-1976 (exts. c and c/l) have been declared null and void and, therefore, the plaintiffs are entitled to a decree as prayed for.5. against the aforesaid judgment and decree of the trial court defendant 1st party filed title appeal no. 53 of 1988 and after considering the pleadings of the parties the learned court of appeal below framed the following points for deciding the title appeal:(i) whether chanchal yadav, defendant no. 3 had any right to dispose of the suit land in favour of defendant 1 st party ?(ii) whether the sale deeds executed by him which are under challenge in this case are valid or not ?6. after considering the arguments of the parties and the evidence adduced by them the learned additional district judge-v, bhagalpur allowed the title appeal vide his judgment and decree dated 3-2-1997, setting aside the judgment and decree of the trial court and rejecting the claim of the plaintiffs after arriving at the following findings:(a) consideration amount for the sale deed cannot be challenged by a third party and the sale deed cannot be said to be invalid on account of inadequacy of consideration amount.(b) the plaintiffs have not been able to prove any fraud having been practiced on their father chanchal yadav at the time of execution of the deeds.(c) plaintiffs have also failed to prove that their father was not having proper sense at the time of execution of the sale deeds.(d) chanchal yadav had become old and defendant 1st party used to maintain him as his sons did not maintain him, hence he had separated from them and used to live with his daughter.(e) chanchal yadav had executed the sale deed for meeting the cost of maintenance and other necessary requirements.(f) defendants have not been able to prove any partition of family of chanchal yadav before his death.(g) the defendants did not produced any evidence to show that actually chanchal yadav through his income had purchased the disputed land and as such he is entitled to dispose it of his separate property.(h) it is well proved that chanchal yadav had disposed of the suit land without being defrauded by any party and as such the only question remains to be seen is whether he had any authority to dispose of the suit land.(i) father is deemed to be the karta of the family and such father has got special right to dispose of the property unlike other kartas of hindu joint family.(j) sons of chanchal yadav had neglected him during his old age and hence he was living with his daughter.(k) it was duty of the family, specially the sons to maintain chanchal yadav and if chanchal yadav sold the land to maintain himself there was nothing wrong in it and he was perfectly justified in doing so.(l) the sale deeds in question will be deemed to be binding upon the plaintiffs.(m) considering the evidence of the parties it appears that defendant 1st party came in possession of the suit land by virtue of the registered sale deed from the date of its execution.(n) it is difficult to accept that defendant 1st party came in possession of the suit property even prior to the execution of the sale deed.7. against the aforesaid judgment and decree of the learned court of appeal below the plaintiffs filed the instant second appeal which was admitted on 23-2-2004 as the substantial questions of law had already been formulated by a bench of this court on 11-2-1998, which were as follows:(i) whether court of appeal is correct while holding that the property in question (ext. b and b/1) is joint family property and there was no partition between father and son, chanchal yadav as karta can execute a sale deed as provided under articles 242 and 256 of the hindu law (mulla)?(ii) whether court of appeal without considering the provision of article 242 and 256 of the hindu law that the power of alienating the joint family property by the karta confined to for three purposes, i.e. (a) in time of distresses in the joint family, (b) benefit of joint family or (c) pious purposes, which is completely absent in this case and in that view of the matter the court of appeal below ought to have held that chanchal yadav has got no power to execute sale deeds (ext. b and b/1)?(iii) whether court of appeal without giving any finding that property in question is exclusive property of chanchal yadav, such transfer/alienation made by chanchal yadav can be said to be valid transfer and in that view of the matter the judgment and decree of the lower appellate court is perverse and cannot be sustained in the eye of law ?8. the claim raised by learned counsel for the plaintiffs-appellants is that in the year 1952 chanchal yadav along with his sons constituted a joint family of which he was karta and in that capacity he purchased the suit land by a sale deed of 1952 (ext. 5) and hence even the learned court of appeal below specifically found that the suit property was a joint family property and not a self acquired property of chanchal yadav. the said chanchal yadav was originally defendant no. 3 but he died in the year 1979 during the pendency of the suit and in his place his daughter parwati devi was substituted. it is also claimed that original defendant no. 3 chanchal yadav left behind two sons, namely plaintiff no. 1 and plaintiff no. 2 and also two daughters, namely defendant no. 2 and substituted defendant no. 3.genealogical tabledeepu gope|chanchal yadav(original d.3 died during suit-daughter substituted)|________________________|_______________________| | | |sundar karala devi siya ram parwati devi{pl 1) (d.2) (pl.2) (substitutedd.3)= jagdeo yadav = sukal yadav9. learned counsel for the plaintiffs-appellants further claimed that chanchal yadav executed a registered sale deed dated 12-6-1976 (ext. c) in favour of his wife's brother baldep gope, who was defendant no. 1 in the suit, but subsequently he died and his widow asha kumari (respondent no. 1) was substituted in his place and on the same date i.e. 12-6-1976 the said chanchal yadav executed another registered sale deed with respect to 1 katha 2 1/2 dhoors of suit land in favour of his daughter kamla devi (respondent no. 2). in the said circumstances it is claimed that the said exts. c and c. 1 are not legal and valid and did not confer any right, title or interest in the alleged vendees as the vendor chanchal yadav had no right to sell the co-parcenary property against the specific provisions of law as described in mulla's hindu law. he also claimed that after having been found that the suit was neither barred by law of limitation nor the defendants could prove adverse possession, whereas the plaintiffs had been found to be forcibly dispossessed in the year 1977. there was no occasion for the learned court of appeal below to reject the claim of the plaintiffs.10. learned counsel for the plaintiffs-appellants also submitted that chanchal yadav had sold the suit land at low price against the interest of the family which cannot be held to be fair and proper, as according to his own deposition the suit land was worth rs. 2,000.00 but no valid reason could be shown by the defendants for alienation at such meagre amount although the onus was squarely upon the alienee to prove the same. in this regard, he relies upon two decisions of the hon'ble apex court as well as one decision of karnataka high court; in case of radhakrishnadas v. kaluram (dead) and after him his heirs and legal representatives and ors. reported in : air 1967 sc 574, in case of smt. rani v. smt. santa bala debnath reported in : air 1971 sc 1028; and in case of ningegowda v. doddegowda reported in air 1986 kar 90. he further claims that ext. 2 proves the value of the suit property at rs. 3,500.00 per katha and the suit property was about 2 kathas but was sold for only rs. 300.00 and hence it cannot be held legal and proper in absence of even any specific pleading of defendants in their written statement about legal necessity of chanchal yadav and the amount required which contravenes the specific provision of article 256 of the hindu law.11. on the other hand, learned counsel for the defendants-respondents claimed that chanchal yadav (original defendant no. 3) was admitted father of the plaintiffs, who had neglected him and hence the said chanchal yadav sold the suit properties to none else than his wife's brother and daughter for his own requirement and hence the father chanchal yadav was quite justified in exercising his special power as father and karta under article 256 of mulla's hindu law by disposing of the suit property. in this regard, he relied upon a decision of the hon'ble apex court in case of v. rama-chandra ayyar v. ramalingam chettiar reported in : air 1963 sc 302. he also averred that judgment and decree of the learned court of appeal below is covered by findings of fact and needs no interference by this court.12. so far substantial question of law no. (iii) is concerned, the learned court of appeal below after considering the pleadings and evidence of the parties had arrived at the conclusion that the suit property was not the exclusive property of chanchal yadav, rather it was the joint family property as the defendants had failed to produce any evidence to show that there was either any partition in the family or the said chanchal yadav had purchased the suit land from his own income. the plaintiffs-appellants are not aggrieved by these findings of the learned court of appeal below. this court also does not find any error in the said findings.13. however, in this regard it may be noted that the genealogy of the family is admitted that chanchal yadav left behind two sons and two daughters, namely plaintiff nos. 1 and 2 as well as respondent nos. 2 and 3. it is also an admitted fact that chanchal yadav original defendant no. 3) was also the karta of the joint family which included the said children. in the said circumstances, before considering the validity and legality of the transfer/alienation made by chanchal yadav, the question which has to be considered is as to whether the father who is the karta of the family which included his children has got any special right to dispose of the property unlike other kartas of the joint family according to the principles of hindu law. this aspect of the matter has to be considered along with other substantial questions of law no (i) and (ii).14. so far substantial questions of law no. (i) and (ii) are concerned, they are inter related and hence they are taken up together for consideration. the learned court of appeal below after considering in detail the pleadings and evidence of the parties came to the specific conclusions that the plaintiffs have been unable to prove either any fraud having been practiced on chanchal yadav or chanchal yadav not being in his proper sense at the time of execution of the sale deeds, although the onus was squarely upon them to prove the same. in this court also, the plaintiffs-appellants could not raise any valid objection based on any material to challenge the aforesaid findings of the learned lower appellate court. hence it has been rightly held that chanchal yadav had disposed of the suit property in favour of defendant nos. 1 and 2 in his proper sense according to his free will without any fraud, etc. having been played by anyone upon him.15. now the main question which has to be considered is as to whether the said chanchal yadav (original defendant no. 3) had any authority in law to dispose of the properties of the joint family of which he was the karta. in this regard learned counsel for the parties have referred to two sections, namely section 242 and section 256 of mulla's principles of hindu law which read as follows:section 242 : (1) the power of the manager of joint hindu family to alienate joint family property is analogous to that of a manager for an infant heir as defined by the judicial committee in hunooman persad v. musummat babooee (1856) 6 moo ia 393.(2) the manager of a joint hindu family has power of alienate for value joint family property, so as to bind the interests of both adult and minor co-parceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. a manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minor's father (or grandfather) when there is no other reasonable course open to him. it is not necessary to validate the alienation that the express consent of the adult members should have been obtained.section 256 : a hindu father as such has special powers of alienating coparcenary property which no other coparcener has. in the exercise of these powers....(1) he may take a gift of ancestral movable property to the extent mentioned insection 225, and even of ancestral immovable property to the extent mentioned in section 226;(2) he may sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes.16. it is quite apparent from the aforesaid provisions of law that section 242 is with regard to general power of a karta of joint hindu family not being the father of the other members of the family, whereas section 256 is with respect to the power and extent of alienation by a father who is also the karta of the joint family property which included his children. it is not in dispute that chanchal yadav and his children formed a hindu joint family of which chanchal yadav was the karta and hence the provision of section 256 shall be applicable in the instant case. the said provision specifically provides that a hindu father who is the karta of the joint family has special powers of alienating, the coparcenary/ancestral property, whether movable or immovable, including the interests of his children for the payment of his own debt, which had not occurred for immoral or illegal purposes.17. in addition to the aforesaid provision of law section 295 of the said hindu law specifically provides that the father of a joint hindu family has the authority to sell or mortgage the joint family property including the sons' interest therein to discharge a debt contracted by him for his own personal benefit, and such alienation would also bind his sons provided the debt was antecedent to the alienation and it was not incurred for any immoral purpose. reference in this regard may be made to a decision of the privy council in case of sat narain v. rai bahadur sri kishen das (since deceased) reported in : (1936) 63 1a 384 : air 1936 pc 277.18. in addition to the aforesaid provision, section 225 of mulla's principles of hindu law clearly provides that although sons acquire by birth rights equal in those of a father in ancestral property both movable and immovable, the father has, the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons for the purpose of performing indispensable acts of duty, and for purposes prescribed by texts of law. in the said circumstances it is quite apparent that the law has given wide and varied powers of alienation to a father karta of the joint family, with the only conditions that the said alienation should not be for any immoral or illegal purposes and that it must be for payment of his own antecedent debt for purposes prescribed by texts of law.19. in the facts and circumstances of this case as well as according to the pleadings and evidence of the parties, it is not in dispute that chanchal yadav had not sold the said land in question for any immoral or illegal purposes. so far the other aspect of the matter is concerned, the learned court of appeal below, which is the final court of facts, after considering the pleadings and evidence of the parties had arrived at the specific and clear finding of fact that chanchal yadav (original defendant no. 3) became old and his sons (plaintiffs) neglected him and did not maintain him and hence he was forced to live with his daughter smt. kamla devi (defendant no. 2) and for meeting the costs of maintenance and his other necessary requirements, including the debts. chanchal yadav had to execute the sale deeds in question in favour of defendant nos. 1 and 2. the text of hindu law is very clear in that regard and provides an obligation upon the sons to maintain their father, specially when the father becomes old and needy, but here it has been found that the sons had neglected their father and failed to discharge their pious obligations due to which the father was forced to live with his daughter, but to pay the debt of his daughter which she incurred in his maintenance, he had to sell the suit property as any self-respecting person would do. in the said circumstances chanchal yadav being the karta father was perfectly justified and had full authority to sell the joint family property to defendant nos. 1 and 2 by the impugned sale deeds, which were also binding upon the plaintiffs and the said purchasers, namely defendant nos. 1 and 2 had acquired full right, title and interest in the suit property and accordingly they were coming in possession thereof by virtue of the impugned sale deeds from the dates of their execution as had been rightly held by the learned court of appeal below.20. learned counsel for the appellants has relied upon the decision of the hon'ble apex court in case of radhakrishnadas air 1967 sc 574 (supra), but the same is not applicable to the instant case, as it was with respect to the powers of a karta who was not the father of the other members of the family. so far the other decisions of the hon'ble apex court in case of ningegowda air 1986 kant 90 (supra) and also in case of smt. rani air 1971 sc 1028 (supra) relied upon by the appellants are concerned, they are with respect to the recitals in the sale deed but here in the instant case the dependence is not on the recitals of sale deed, rather it is upon the legal necessity and antecedent debt which is proved by the defendants by clear and unambiguous evidence, hence the said case laws are not applicable to the facts and circumstances of this case. on the said point, learned counsel for the respondents have rightly relied upon the decision of the hon'ble apex court in case of v. ramachandra ayyar : air 1963 sc 302 (supra) in which it has been specifically held that such points were pure questions of fact and their decision depending in the present case on appreciating the oral evidence adduced in support of the rival contentions, documents produced by the parties, their conduct and surrounding circumstances and that being so high court would not be justified in interfering with such finding of fact recorded by the lower appellate court. in the instant case also the lower appellate court after full consideration of the aforesaid factors decided the said questions of fact in the light of all relevant evidence and hence this court would not be justified in interfering with the findings recorded by the learned lower appellate court.21. in the aforesaid facts and circumstances, the appellants have failed to substantiate the aforesaid questions of law raised by them. furthermore, from the above discussions and the legal propositions, it is quite apparent that there is no illegality in the impugned judgment and decree of the learned court of appeal below and accordingly this second appeal is dismissed. however, in the facts and circumstances of this case there will be no order as to cost.
Judgment:

S.N. Hussain, J.

1. This second appeal has been filed by the plaintiffs-respondents-appellants challenging the judgment and decree of the learned Court of appeal below.

2. The matter arises out of Title Suit No. 101 of 1976, which was filed by the plaintiffs for the following reliefs:

(a) Declaration that sale deeds dated 12-6-1976 (Exts. C and C/l) executed by defendants 2nd party in favour of defendants 1st party were null and void and inoperative and defendant 1st party had not acquired any title to the suit land.

(b) Decree for recovery of possession in respect of the suit land covered by the said illegal and invalid sale deeds dated 12-6-1976.

(c) Cost of suit be awarded to the plaintiffs.

(d) Any other reliefs as the Court may consider proper.

3. Notices were issued to the defendants, who appeared and contested the suit and after considering the pleadings of the respective parties the learned trial Court framed the following issues:

(i) Is the suit as framed maintainable? (ii) Have the plaintiffs valid cause of action ?

(iii) Is the suit barred by Law of Limitation ?

(iv) Whether the lands alleged to be transferred by sale deeds dated 12-6-1976 were joint family properties or self-acquired property of Chanchal Yadav?

(v) Are the sale deeds dated 12-6-1976 executed by Chanchal Yadav in favour of defendant 1st party, legal, valid and for consideration ?

(vi) Have defendant 1st party acquired title over the suit land by virtue of sale deeds dated 12-6-1976 or otherwise?

(vii) Have the plaintiffs been dispossessed from the suit land forcibly by defendants during the pendency of above suit?

(viii) Are the plaintiffs entitled to a decree as claimed in the suit ?

(ix) To what relief, if any, the plaintiffs are entitled to?

4. After considering the evidence produced and arguments led by the parties the learned Additional Munsif-1, Bhagalpur decreed the suit on contest with cost vide his judgment and decree dated 30-7-1988 after arriving at the following findings:

(a) Schedule-A land purchased in the year 1952 was the joint family property of the plaintiffs along with their father and it was not self acquired property of their father Chanchal Yadav.

(b) Sale deeds (Exts. C and C/l) are null and void, ab initio and the same does not confer any right or title upon defendant 1st party and they are not legal and valid documents and are also not for just and proper consideration.

(c) Sale deeds (Ext. C and C/l) being of 12-6-1976 and the instant suit also having been filed in the year 1976 it is well within the period of limitation.

(d) Plaintiffs have proved by oral evidence that they have been dispossessed from the suit land from November, 1977 during the pendency of the suit.

(e) Defendants have failed to prove the case of adverse possession.

(f) Chanchal Yadav had no right to sell the coparcenary property and hence sale deeds dated 12-6-1976 (Exts. C and C/l) have been declared null and void and, therefore, the plaintiffs are entitled to a decree as prayed for.

5. Against the aforesaid judgment and decree of the trial Court defendant 1st party filed Title Appeal No. 53 of 1988 and after considering the pleadings of the parties the learned Court of appeal below framed the following points for deciding the title appeal:

(i) Whether Chanchal Yadav, defendant No. 3 had any right to dispose of the suit land in favour of defendant 1 st party ?

(ii) Whether the sale deeds executed by him which are under challenge in this case are valid or not ?

6. After considering the arguments of the parties and the evidence adduced by them the learned Additional District Judge-V, Bhagalpur allowed the title appeal vide his judgment and decree dated 3-2-1997, setting aside the judgment and decree of the trial Court and rejecting the claim of the plaintiffs after arriving at the following findings:

(a) Consideration amount for the sale deed cannot be challenged by a third party and the sale deed cannot be said to be invalid on account of inadequacy of consideration amount.

(b) The plaintiffs have not been able to prove any fraud having been practiced on their father Chanchal Yadav at the time of execution of the deeds.

(c) Plaintiffs have also failed to prove that their father was not having proper sense at the time of execution of the sale deeds.

(d) Chanchal Yadav had become old and defendant 1st party used to maintain him as his sons did not maintain him, hence he had separated from them and used to live with his daughter.

(e) Chanchal Yadav had executed the sale deed for meeting the cost of maintenance and other necessary requirements.

(f) Defendants have not been able to prove any partition of family of Chanchal Yadav before his death.

(g) The defendants did not produced any evidence to show that actually Chanchal Yadav through his income had purchased the disputed land and as such he is entitled to dispose it of his separate property.

(h) It is well proved that Chanchal Yadav had disposed of the suit land without being defrauded by any party and as such the only question remains to be seen is whether he had any authority to dispose of the suit land.

(i) Father is deemed to be the Karta of the family and such father has got special right to dispose of the property unlike other Kartas of Hindu joint family.

(j) Sons of Chanchal Yadav had neglected him during his old age and hence he was living with his daughter.

(k) It was duty of the family, specially the sons to maintain Chanchal Yadav and if Chanchal Yadav sold the land to maintain himself there was nothing wrong in it and he was perfectly justified in doing so.

(l) The sale deeds in question will be deemed to be binding upon the plaintiffs.

(m) Considering the evidence of the parties it appears that defendant 1st party came in possession of the suit land by virtue of the registered sale deed from the date of its execution.

(n) It is difficult to accept that defendant 1st party came in possession of the suit property even prior to the execution of the sale deed.

7. Against the aforesaid judgment and decree of the learned Court of appeal below the plaintiffs filed the instant second appeal which was admitted on 23-2-2004 as the substantial questions of law had already been formulated by a Bench of this Court on 11-2-1998, which were as follows:

(i) Whether Court of appeal is correct while holding that the property in question (Ext. B and B/1) is joint family property and there was no partition between father and son, Chanchal Yadav as Karta can execute a sale deed as provided under Articles 242 and 256 of the Hindu Law (Mulla)?

(ii) Whether Court of appeal without considering the provision of Article 242 and 256 of the Hindu Law that the power of alienating the joint family property by the Karta confined to for three purposes, i.e. (a) in time of distresses in the joint family, (b) benefit of joint family or (c) pious purposes, which is completely absent in this case and in that view of the matter the Court of appeal below ought to have held that Chanchal Yadav has got no power to execute sale deeds (Ext. B and B/1)?

(iii) Whether Court of appeal without giving any finding that property in question is exclusive property of Chanchal Yadav, such transfer/alienation made by Chanchal Yadav can be said to be valid transfer and in that view of the matter the judgment and decree of the lower appellate Court is perverse and cannot be sustained in the eye of law ?

8. The claim raised by learned Counsel for the plaintiffs-appellants is that in the year 1952 Chanchal Yadav along with his sons constituted a joint family of which he was Karta and in that capacity he purchased the suit land by a sale deed of 1952 (Ext. 5) and hence even the learned Court of appeal below specifically found that the suit property was a joint family property and not a self acquired property of Chanchal Yadav. The said Chanchal Yadav was originally defendant No. 3 but he died in the year 1979 during the pendency of the suit and in his place his daughter Parwati Devi was substituted. It is also claimed that original defendant No. 3 Chanchal Yadav left behind two sons, namely plaintiff No. 1 and plaintiff No. 2 and also two daughters, namely defendant No. 2 and substituted defendant No. 3.

Genealogical tableDeepu Gope|Chanchal Yadav(original D.3 died during suit-daughter substituted)|________________________|_______________________| | | |Sundar Karala Devi Siya Ram Parwati Devi{PL 1) (D.2) (Pl.2) (substitutedD.3)= Jagdeo Yadav = Sukal Yadav

9. Learned Counsel for the plaintiffs-appellants further claimed that Chanchal Yadav executed a registered sale deed dated 12-6-1976 (Ext. C) in favour of his wife's brother Baldep Gope, who was defendant No. 1 in the suit, but subsequently he died and his widow Asha Kumari (respondent No. 1) was substituted in his place and on the same date i.e. 12-6-1976 the said Chanchal Yadav executed another registered sale deed with respect to 1 Katha 2 1/2 Dhoors of suit land in favour of his daughter Kamla Devi (respondent No. 2). In the said circumstances it is claimed that the said Exts. C and C. 1 are not legal and valid and did not confer any right, title or interest in the alleged vendees as the vendor Chanchal Yadav had no right to sell the co-parcenary property against the specific provisions of law as described in Mulla's Hindu Law. He also claimed that after having been found that the suit was neither barred by Law of Limitation nor the defendants could prove adverse possession, whereas the plaintiffs had been found to be forcibly dispossessed in the year 1977. there was no occasion for the learned Court of appeal below to reject the claim of the plaintiffs.

10. Learned Counsel for the plaintiffs-appellants also submitted that Chanchal Yadav had sold the suit land at low price against the interest of the family which cannot be held to be fair and proper, as according to his own deposition the suit land was worth Rs. 2,000.00 but no valid reason could be shown by the defendants for alienation at such meagre amount although the onus was squarely upon the alienee to prove the same. In this regard, he relies upon two decisions of the Hon'ble Apex Court as well as one decision of Karnataka High Court; in case of Radhakrishnadas v. Kaluram (dead) and after him his heirs and legal representatives and Ors. reported in : AIR 1967 SC 574, in case of Smt. Rani v. Smt. Santa Bala Debnath reported in : AIR 1971 SC 1028; and in case of Ningegowda v. Doddegowda reported in AIR 1986 Kar 90. He further claims that Ext. 2 proves the value of the suit property at Rs. 3,500.00 per Katha and the suit property was about 2 Kathas but was sold for only Rs. 300.00 and hence it cannot be held legal and proper in absence of even any specific pleading of defendants in their written statement about legal necessity of Chanchal Yadav and the amount required which contravenes the specific provision of Article 256 of the Hindu Law.

11. On the other hand, learned Counsel for the Defendants-respondents claimed that Chanchal Yadav (original defendant No. 3) was admitted father of the plaintiffs, who had neglected him and hence the said Chanchal Yadav sold the suit properties to none else than his wife's brother and daughter for his own requirement and hence the father Chanchal Yadav was quite justified in exercising his special power as father and Karta under Article 256 of Mulla's Hindu Law by disposing of the suit property. In this regard, he relied upon a decision of the Hon'ble Apex Court in case of V. Rama-chandra Ayyar v. Ramalingam Chettiar reported in : AIR 1963 SC 302. He also averred that judgment and decree of the learned Court of appeal below is covered by findings of fact and needs no interference by this Court.

12. So far substantial question of law No. (iii) is concerned, the learned Court of appeal below after considering the pleadings and evidence of the parties had arrived at the conclusion that the suit property was not the exclusive property of Chanchal Yadav, rather it was the joint family property as the defendants had failed to produce any evidence to show that there was either any partition in the family or the said Chanchal Yadav had purchased the suit land from his own income. The plaintiffs-appellants are not aggrieved by these findings of the learned Court of appeal below. This Court also does not find any error in the said findings.

13. However, in this regard it may be noted that the genealogy of the family is admitted that Chanchal Yadav left behind two sons and two daughters, namely plaintiff Nos. 1 and 2 as well as respondent Nos. 2 and 3. It is also an admitted fact that Chanchal Yadav original defendant No. 3) was also the Karta of the joint family which included the said children. In the said circumstances, before considering the validity and legality of the transfer/alienation made by Chanchal Yadav, the question which has to be considered is as to whether the father who is the Karta of the family which included his children has got any special right to dispose of the property unlike other Kartas of the joint family according to the Principles of Hindu Law. This aspect of the matter has to be considered along with other substantial questions of law No (i) and (ii).

14. So far substantial questions of law No. (i) and (ii) are concerned, they are inter related and hence they are taken up together for consideration. The learned Court of appeal below after considering in detail the pleadings and evidence of the parties came to the specific conclusions that the plaintiffs have been unable to prove either any fraud having been practiced on Chanchal Yadav or Chanchal Yadav not being in his proper sense at the time of execution of the sale deeds, although the onus was squarely upon them to prove the same. In this Court also, the plaintiffs-appellants could not raise any valid objection based on any material to challenge the aforesaid findings of the learned lower appellate Court. Hence it has been rightly held that Chanchal Yadav had disposed of the suit property in favour of defendant Nos. 1 and 2 in his proper sense according to his free will without any fraud, etc. having been played by anyone upon him.

15. Now the main question which has to be considered is as to whether the said Chanchal Yadav (original defendant No. 3) had any authority in law to dispose of the properties of the joint family of which he was the Karta. In this regard learned Counsel for the parties have referred to two sections, namely Section 242 and Section 256 of Mulla's Principles of Hindu Law which read as follows:

Section 242 : (1) The power of the manager of Joint Hindu family to alienate joint family property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Persad v. Musummat Babooee (1856) 6 Moo IA 393.

(2) The manager of a joint Hindu family has power of alienate for value joint family property, so as to bind the interests of both adult and minor co-parceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the estate. A Manager (not being the father) can alienate even the share of a minor coparcener to satisfy an antecedent debt of the minor's father (or grandfather) when there is no other reasonable course open to him. It is not necessary to validate the alienation that the express consent of the adult members should have been obtained.

Section 256 : A Hindu father as such has special powers of alienating coparcenary property which no other coparcener has. In the exercise of these powers....

(1) he may take a gift of ancestral movable property to the extent mentioned inSection 225, and even of ancestral immovable property to the extent mentioned in Section 226;

(2) he may sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes.

16. It is quite apparent from the aforesaid provisions of law that Section 242 is with regard to general power of a Karta of joint Hindu family not being the father of the other members of the family, whereas Section 256 is with respect to the power and extent of alienation by a father who is also the Karta of the joint family property which included his children. It is not in dispute that Chanchal Yadav and his children formed a Hindu joint family of which Chanchal Yadav was the Karta and hence the provision of Section 256 shall be applicable in the instant case. The said provision specifically provides that a Hindu father who is the Karta of the joint family has special powers of alienating, the coparcenary/ancestral property, whether movable or immovable, including the interests of his children for the payment of his own debt, which had not occurred for immoral or illegal purposes.

17. In addition to the aforesaid provision of law Section 295 of the said Hindu Law specifically provides that the father of a joint Hindu family has the authority to sell or mortgage the joint family property including the sons' interest therein to discharge a debt contracted by him for his own personal benefit, and such alienation would also bind his sons provided the debt was antecedent to the alienation and it was not incurred for any immoral purpose. Reference in this regard may be made to a decision of the Privy Council in case of Sat Narain v. Rai Bahadur Sri Kishen Das (since deceased) reported in : (1936) 63 1A 384 : AIR 1936 PC 277.

18. In addition to the aforesaid provision, Section 225 of Mulla's Principles of Hindu Law clearly provides that although sons acquire by birth rights equal in those of a father in ancestral property both movable and immovable, the father has, the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons for the purpose of performing indispensable acts of duty, and for purposes prescribed by texts of law. In the said circumstances it is quite apparent that the law has given wide and varied powers of alienation to a father Karta of the joint family, with the only conditions that the said alienation should not be for any immoral or illegal purposes and that it must be for payment of his own antecedent debt for purposes prescribed by texts of law.

19. In the facts and circumstances of this case as well as according to the pleadings and evidence of the parties, it is not in dispute that Chanchal Yadav had not sold the said land in question for any immoral or illegal purposes. So far the other aspect of the matter is concerned, the learned Court of appeal below, which is the final Court of facts, after considering the pleadings and evidence of the parties had arrived at the specific and clear finding of fact that Chanchal Yadav (original defendant No. 3) became old and his sons (plaintiffs) neglected him and did not maintain him and hence he was forced to live with his daughter Smt. Kamla Devi (defendant No. 2) and for meeting the costs of maintenance and his other necessary requirements, including the debts. Chanchal Yadav had to execute the sale deeds in question in favour of defendant Nos. 1 and 2. The text of Hindu Law is very clear in that regard and provides an obligation upon the sons to maintain their father, specially when the father becomes old and needy, but here it has been found that the sons had neglected their father and failed to discharge their pious obligations due to which the father was forced to live with his daughter, but to pay the debt of his daughter which she incurred in his maintenance, he had to sell the suit property as any self-respecting person would do. In the said circumstances Chanchal Yadav being the Karta father was perfectly justified and had full authority to sell the joint family property to defendant Nos. 1 and 2 by the impugned sale deeds, which were also binding upon the plaintiffs and the said purchasers, namely defendant Nos. 1 and 2 had acquired full right, title and interest in the suit property and accordingly they were coming in possession thereof by virtue of the impugned sale deeds from the dates of their execution as had been rightly held by the learned Court of appeal below.

20. Learned Counsel for the appellants has relied upon the decision of the Hon'ble Apex Court in case of Radhakrishnadas AIR 1967 SC 574 (supra), but the same is not applicable to the instant case, as it was with respect to the powers of a Karta who was not the father of the other members of the family. So far the other decisions of the Hon'ble Apex Court in case of Ningegowda AIR 1986 Kant 90 (supra) and also in case of Smt. Rani AIR 1971 SC 1028 (supra) relied upon by the appellants are concerned, they are with respect to the recitals in the sale deed but here in the instant case the dependence is not on the recitals of sale deed, rather it is upon the legal necessity and antecedent debt which is proved by the defendants by clear and unambiguous evidence, hence the said case laws are not applicable to the facts and circumstances of this case. On the said point, learned Counsel for the respondents have rightly relied upon the decision of the Hon'ble Apex Court in case of V. Ramachandra Ayyar : AIR 1963 SC 302 (supra) in which it has been specifically held that such points were pure questions of fact and their decision depending in the present case on appreciating the oral evidence adduced in support of the rival contentions, documents produced by the parties, their conduct and surrounding circumstances and that being so High Court would not be justified in interfering with such finding of fact recorded by the lower appellate Court. In the instant case also the lower appellate Court after full consideration of the aforesaid factors decided the said questions of fact in the light of all relevant evidence and hence this Court would not be justified in interfering with the findings recorded by the learned lower appellate Court.

21. In the aforesaid facts and circumstances, the appellants have failed to substantiate the aforesaid questions of law raised by them. Furthermore, from the above discussions and the legal propositions, it is quite apparent that there is no illegality in the impugned judgment and decree of the learned Court of appeal below and accordingly this second appeal is dismissed. However, in the facts and circumstances of this case there will be no order as to cost.