Rengan Ambalam And Anr. vs Sheik Dawood And Ors.

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8103 OF 2011

Rengan Ambalam and Anr. .. Appellants

Versus

Sheik Dawood and Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 02.07.2007 passed by the High Court

of Madras in Second Appeal No. 1900 of 1991 by which the High

Court has allowed the said appeal preferred by the original

defendant Nos. 3 and 4 and has quashed and set aside the

judgment and order passed by the learned First Appellate Court

as well as the learned Trial Court decreeing the suit and

consequently dismissing the suit, the original plaintiff and Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.05.10

original defendant No. 2 have preferred the present appeal. 11:16:14 IST Reason:

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2. The facts leading to the present appeal in nutshell are as

under:

That appellant No. 1 herein – Rengan Ambalam instituted the

suit against the original defendants before the learned Sub­

Court, Pudukkottai, being O.S. No. 73 of 1987 praying for the

partition claiming his 1/3rd share in the joint family properties

and the possession thereon. It is required to be noted that the

original defendant No. 1 was the father of the plaintiff and

defendant No. 2 and therefore the plaintiff claimed that all of

them have 1/3rd share in the joint family properties, more

particularly, the suit “B” Schedule property. It was the case on

behalf of the plaintiff that the suit property belonged to the

grand­father of the plaintiff and defendant No. 2 and father of

defendant No. 1­Kuppamuthu Ambalam. The said Kuppamathu

Ambalam had five sons, including defendant No. 1. That, in a

partition in the year 1966, amongst the five brothers the suit

properties came to the share of defendant No. 1 Rengan

Ambalam, father of the plaintiff and defendant No. 2. It was the

case on behalf of the plaintiff that those properties were being

enjoined in common by the plaintiff and defendant Nos. 1 and 2

and therefore all of them are entitled to 1/3 rd share each. It was 3

also the case on behalf of the original plaintiff that his father­

defendant No. 1 was acting adversely to the interest of the

plaintiff and with a view to defeat the rights of the plaintiff,

defendant No. 1­father mortgaged the suit “B” schedule

properties for a sum of Rs.3,000/­ in favour of one Subbaiya

Nadar. According to the plaintiff, there was no necessity for

mortgaging the suit properties. That the plaintiff objected to

that mortgage. According to the plaintiff, despite his objections,

thereafter the original defendant No. 1­father sold the suit “B”

schedule properties in favour of defendant Nos. 3 and 4, as if the

properties belonged to him himself and his brother’s sons. It

was the case on behalf of the plaintiff that in fact the property set

out in schedule “B” is still in the possession and enjoyment of the

plaintiff. According to the plaintiff, relying on his exclusive

possession, the plaintiff caused a notice to his father and the

mortgagee­Subbaiah Nadar that they should not trespass in the

suit property. As the suit “B” schedule property was sold by

defendant No. 1­father in favour of defendant Nos. 3 and 4, the

plaintiff instituted the aforesaid suit for partition, possession and

mesne profits. It was also the case on behalf of the plaintiff that 4

as he is not signatory to the sale deed in favour of defendant Nos.

3 and 4, the said sale deed is not binding on him.

2.1 The suit was resisted by defendant Nos. 3 and 4 by filing the

written statement. It is required to be noted that during the

pendency of the suit, the original defendant No.1­father died and,

therefore, he could not be examined before the Trial Court and

therefore the suit was resisted by defendant Nos. 3 and 4 to

protect his rights under the sale deed which was executed by

defendant No. 1 during his lifetime. It was the case on behalf of

defendant Nos. 3 and 4 that the plaintiff was not in possession

and/or enjoyment of the suit property. Defendant No. 1­ father

and family manager was managing the properties till his death.

That defendant No. 1’s family was joint and undivided

continuously. That defendant No. 1­father and Manager of the

family, was managing the family with great difficulty by obtaining

the loans and therefore, “B” schedule property was mortgaged by

defendant No. 1 to Subbaiah Nadar. That the suit property was

mortgaged due to the legal necessity. That the sale of the “B”

schedule property to defendant Nos. 3 and 4 was necessitated on

account of the insistence of Subbaiah Nadar­mortgagee. That

Subbaiah Nadar allowed defendant No. 1 to harvest the crops in 5

“B” schedule property, for which a portion of the produce was

paid towards interest. Thereafter, Subbaiah Nadar wanted

return of his money from defendant No. 1, defendant No. 1 has

no other alternative except selling the property to defendant Nos.

3 and 4. Therefore, to pay the mortgaged money and release the

mortgage and to pay other dues/loans, defendant No. 1 sold the

property to defendant Nos. 3 and 4. Therefore, it was the case on

behalf of defendant Nos. 3 that the suit “B” schedule property

was sold by defendant No. 1 as a Manager of the joint family and

due to the legal necessity. Therefore, it was prayed to dismiss the

suit.

2.2 The learned Trial Court framed the following issued:

1. Whether the plaintiff is entitled to get the relief of

partition as asked for by him in the plaint?

2. Whether the plaintiff has got right to ask for reliefs

relating to ‘B’ schedule property?

3. Whether the sale with regard to ‘B’ schedule property on

27.02.1983 would bind on the plaintiff?

4. Whether the plaintiff is in possession of the ‘B’ schedule

property?

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5. In case if the plaintiff is entitled to get the relief of

partition, whether it would be just to allot the ‘B’

schedule property to the 1st defendant and thereby allow

his vendees to get them?

6. Whether the partition would be effected as asked for by

the plaintiff only after settle for the maintenance of the

family female members, their marriage expenses, and

family loans?

7. To what other reliefs is the plaintiff entitled to?

2.3 On behalf of the plaintiff, he himself stepped into the

witness box. On behalf of defendant Nos. 3 and 4, defendant No.

3 stepped into the witness box as P.W.1. The documentary

evidence were placed on record through the aforesaid witnesses

which include the original mortgage deed; notice given by the

plaintiff; reply to the notice of the plaintiff given by defendant No.

1 and the sale deed executed by defendant No. 1 in favour of

defendant Nos. 3 and 4. That, on appreciation of evidence, the

learned Trial Court decreed the suit and held that the plaintiff

has 1/3rd share in “B” schedule property. The learned Trial Court

also held that as the plaintiff is not signatory to the sale deed, the

same is not binding on him. The appeal filed by defendant Nos. 7

3 and 4 before the learned First Appellate Court came to be

dismissed. The original defendant Nos. 3 and 4­purchsers filed

the second appeal before the High Court and by the impugned

judgment and order, the High Court has allowed the second

appeal and has quashed and set aside the judgment and decree

passed by the learned Trial Court, confirmed by the learned First

Appellate Court and consequently has dismissed the suit.

Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, the original plaintiff and

original defendant No. 2 have preferred the present appeal.

3. Shri R. Venkataramani, learned Senior Advocate has

appeared on behalf of the appellants and Shri Vikas Singh,

learned Advocate has appeared on behalf of the respondents.

3.1 Shri Venkataramani, learned counsel appearing on behalf of

the appellants has vehemently submitted that, in the facts and

circumstances of the case, the High Court has committed a grave

error in allowing the Second Appeal and quashing and setting

aside the concurrent findings of fact recorded by both the Courts

below. It is vehemently submitted by the learned counsel

appearing on behalf of the appellants that, in the present case,

the High Court has not exercised its jurisdiction in conformation 8

with the provisions of Section 100 of the CPC. It is submitted

that after framing the substantial questions of law, which are

also inappropriately framed, the High Court has merely

undertaken the factual enquiry not warranted by Section 100

CPC. Relying upon the recent decision of this Court in the case

of Gurnam Singh v. Lehna Singh (2019) SCC Online SC 374, it

is prayed to allow the present appeal.

3.2 It is further submitted by the learned counsel appearing on

behalf of the appellants that, in the present case, both the Courts

below ­ the learned Trial Court as well as the First Appellate

Court ­ specifically gave the concurrent findings, which are as

under:

i) the mortgage debt created by the father in 1981 and the sale deed executed in 1983 to discharge the mortgage debt cannot be considered as antecedent debt. A debt to become antecedent debt it should be antecedent in fact as well as in time.

ii) it is created for the purpose of defeating the petitioner’s right/share in the suit property at the instigation of the D.W.3, Alagappan who is inimical towards the petitioner.

iii) the Ex. A­16, sale deed dated 27­2­83 is without adequate consideration and such sale not a valid one 9

because an agreement for sale of the same suit property was entered in which it was agreed to sell at Rs.10,500/­. Ex. A­49, Sale agreement dated 1­10­ 82 in favour of one Ramalingam.

iv) the purchasers are not bonafide purchasers since admittedly they are family friends who are well aware of the dispute and purchased the property knowing fully well about the dispute between the father and son regarding the suit property.

v) Perusal of Ex. A­11 dated 10­4­81 police complaint makes it clear that there was a division in status between the plaintiff and his father. FIR is evident to show that there is divisional status of joint family and hence father cannot act as a manager.

vi) it is clear from the recital of the sale deed that the plaintiff’s father has not executed the sale deed in a capacity as manager of the joint family. The 2 nd cross appellant was a minor at the time of executing the sale deed.

vii) the suit property was purchased from the persons who are not having right over the property.

viii) the Hon’ble High Court failed to appreciate that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the 10

family without consulting them. The alienation of the joint family property in this case was bad.

It is submitted that as the aforesaid findings were recorded by the

Courts below on appreciation of evidence and therefore the High

Court in exercise of powers under Section 100 CPC is not justified

in reversing those findings which were on appreciation of

evidence on record.

3.3 It is further submitted by the learned counsel appearing on

behalf of the appellants that, even otherwise, in the facts and

circumstances of the case, it cannot be said that the initial

mortgage by defendant No. 1 and thereafter the sale deed

executed by defendant No. 1 in favour of defendant Nos. 3 an 4

was due to the legal necessity and/or to pay the “antecedent

debt”. It is submitted that, in the present case, the mortgage

debt was created by the father in 1981 and the sale deed was

executed in 1983 to discharge the mortgage debt and, therefore, it

cannot be considered as “antecedent debt”. It is submitted that

as per the settled law, “antecedent debt” means antecedent in fact

as well as in time i.e. that the debt must be truly independent of

and not part of the transactions impeached. In support of his 11

submissions, learned counsel appearing on behalf of the

appellants has relied upon the following decisions of this Court:

Narain Prasad and Another vs. Sarnam Singh and Another, 44 I.A. 168 Suraj Bunsi Koer vs. Sheo Proshad Singh and others, 6 I.A. 88 Chet Ram and Others vs. Ram Singh and Others, 49 I.A. 228 Brij Narain vs. Mangla Prasad and Others, 51 I.A. 129 Sahu Ram Chandra and Another vs. Bhup Singh and Anohter, 44 I.A. 126 Panchaiti Akhara Udasi Nirwani vs. Surajpal Singh, A.I.R. (32) 1945 PC 1

3.4 It is further submitted by the learned counsel appearing on

behalf of the appellants that the High Court failed to appreciate

that there was a disruption of the joint family status and the

coparcener did not exist, following a decision in status of joint

family well before the mortgage or sale since the first appellant

demanded partition of the suit property from his father and also

send a legal notice opposing the mortgage of the suit property to

Subbaiah Nadar and further the first appellant gave a protest

petition to the Joint Sub­Registrar I, Pudukottai informing that

his father is taking steps to sell the suit property and requested

not to register any sale of the suit property and thus it is clearly

established that there was an unequivocal declaration on the part 12

of the appellant to remain separate from his father and thus there

was severance of the joint family status between the first

appellant and his father. It is submitted that, in such

circumstances, defendant No. 1 had no right to mortgage the joint

family property as he no longer continued to be the manager the

Hindu joint family. It is submitted that the High Court has failed

to appreciate that it is well settled law as held by this Court as

well as the Privy Council that for a severance in status all that is

required is a communication to other members of the joint family

of an unequivocal intention to separate.

3.5 It is further submitted by the learned counsel appearing on

behalf of the appellants that, in the present case, the father

acquired the property from his father and therefore the suit

property was an ancestral joint family property. It is submitted

that admittedly there was no partition thereafter. It is submitted

that as held by this Court in the case of Kalyani (dead) by LRs

v. Narayanan AIR 1980 SC 1173, to constitute a partition all

that is necessary is a definite and unequivocal indication of

intention by a member of a joint family to separate himself from

the family. It is submitted that, as held, the partition in one

sense is a severance of joint status and coparcener of a 13

coparcenary is entitled to claim it as a matter of his individual

volition.

3.6 Making the above submissions and relying upon the above

decisions, it is vehemently submitted that the sale deed in favour

of defendant Nos. 3 and 4 cannot be said to be to pay “antecedent

debt”. He submitted that even neither in the mortgage deed nor

in the sale deed it was specifically stated that the mortgage

deed/sale deed has been executed by the father as a manager of

the joint family and for and on behalf of the joint family. It is

submitted that therefore, as rightly held by the Courts below, the

sale deed was no binding on the plaintiff and/or the right of the

plaintiff to claim the partition and his 1/3 rd share could not have

been taken away and/or affected.

3.7 Making the above submissions, it is prayed to allow the

present appeal and quash and set aside the impugned judgment

and order passed by the High Court and to restore the judgment

and decree passed by the learned Trial Court and confirmed by

the leaned First Appellate Court.

4. While opposing the present appeal, Shri Vikas Singh,

learned Advocate appearing on behalf of the respondents­original

defendant Nos. 3 and 4 has relied upon the documentary 14

evidence on record, more particularly, mortgage deed, lease deed

and sale deed and has vehemently submitted that all the three

aforesaid documents were executed by the father­defendant No. 1

for a legal necessity and to clear the debts of the family. It is

submitted that once that is so, thereafter, the plaintiff had no

right to claim the partition of the property which was already sold

to clear the “antecedent debts”. It is submitted that, therefore,

where it was found that the findings recorded by the Courts below

were perverse and contrary to the law, the High Court, in the

present case, is justified in interfering with the findings recorded

by the Courts below and has rightly allowed the appeal. It is

submitted that the High Court has framed and answered the

substantial questions of law. It is submitted that while answering

the substantial questions of law, the High Court is bound to

touch the evidence on record. It is submitted that merely

because while answering the substantial questions of law, the

evidence is discussed, it cannot be said that the High Court has

exceeded in its jurisdiction not vested in it under Section 100

CPC. It is submitted, therefore, in the facts and circumstances of

the case, no interference is called for by this Court. 15

4.1 Making the above submissions, it is prayed to dismiss the

present appeal.

5. Heard learned Counsel appearing on behalf of the respective

parties at length. We have considered in depth the impugned

judgment and order passed by the High Court as well as the

judgment and order passed by the Trial Court and the First

Appellate Court. We have also considered the evidences on

record – both oral and documentary.

5.1 That the original plaintiff instituted the suit for partition of

the suit properties claiming 1/3rd share. The suit “B” scheduled

property was sold by defendant No. 1­father of the plaintiff in

favour of defendant Nos. 3 and 4. It was the case on behalf of

defendants (except defendant No. 2) that the suit “B” schedule

property was sold by the father during his lifetime to pay the

“antecedent debt”. The learned Trial Court as well as the learned

First Appellate Court did not accept that the “B” schedule

property was sold for the legal necessity and/or to repay the

“antecedent debt” and, therefore, it was held that the sale deed in

favour of defendant Nos. 3 and 4 was not binding on the plaintiff

and consequently decreed the suit. The High Court, on

appreciation of evidence and after considering the substantial 16

questions of law, has allowed the appeal and set aside the

judgment and decree passed by the learned Trial Court,

confirmed by the learned First Appellate Court by holding that

the “B” schedule property was sold by original defendant No. 1­

father during his lifetime to clear/pay/repay the “antecedent

debt”. Therefore, the short question which is posed for

consideration of this Court is whether, in the facts and

circumstances of the case, can it be said that the sale deed

executed by original defendant No. 1 in favour of defendant Nos. 3

and 4 was due to the legal necessity and/or to pay the

“antecedent debt”?

6. To answer the aforesaid question, few documentary

evidences which ultimately led to the sale of the property by

defendant No. 1 in favour of defendant Nos. 3 and 4 are required

to be considered.

6.1 The suit “B” schedule property was mortgaged on

26.02.1981 and a simple mortgage deed was executed for a sum

of Rs.3,000/­. In the document Exh. B­2, it is specifically

mentioned that Rs.3,000/­ was received by the mortgager­father

of the plaintiff­original defendant No. 1 as a simple mortgage loan

for their family expenses. That, on the very day, a lease deed 17

was executed in favour of the mortgagee (Exh. B­4). From the

document produced at Exh. B­6, it appears that a further sum of

Rs.1,000/­ was received by the father as an additional loan

amount/additional lease amount. The mortgage deed was

opposed by the plaintiff by notice dated 11.09.1981. However, in

the reply to the notice by the father dated 16.10.1981, it was

specifically stated that he was striving hard to maintain himself,

his wife and two unmarried daughters, one young daughter and

another boy. It was also stated that he was aged coupled with

stone­deafness. It was further stated that the plaintiff has failed

to take care of the family members and he has no money and

therefore for the benefit of the family and in the interest of the

family, he has executed Varthamanan in lieu of the interest for

the mortgage. That, thereafter, defendant No. 1­father sold the

suit property in favour of defendant Nos. 3 and 4 in the year 1983

for a sale consideration of Rs.6,700/­. In the sale deed itself, it is

specifically mentioned that, out of the sale consideration of

Rs.6,700/­, a sum of Rs.3,000/­ having been paid to the vendors

to settle the loan by mortgaging the schedule property by the 3 rd

vendor and for redemption of the sum mortgaged. It was further

stated that the balance consideration i.e. Rs.3,700/­ has been 18

paid. That the sale deed executed in favour of defendant Nos. 3

and 4 by original defendant No. 1­father can be said to be to

clear/pay the “antecedent debt” and for the legal necessity of the

family members. Therefore, in the facts and circumstances of the

case, we are of the firm opinion that no error has been committed

by the High Court in holding that the sale deed executed by

original defendant No. 1 in favour of defendant Nos. 3 and 4 was

for a legal necessity and to pay the “antecedent debt”. From the

evidence on record, it appears that the sale deed executed in the

year 1983 has a direct connection with the mortgage to repay the

mortgage money and to repay the further loan of Rs.1,000/­.

Therefore, in the facts and circumstances of the case, the

decisions relied upon by the learned counsel appearing on behalf

of the appellants shall not be applicable to the facts of the case on

hand.

7. Now so far as the submission made on behalf of the

appellants that in exercise of powers under Section 100 CPC, the

High Court ought not to have interfered with the findings of fact

recorded by both the Courts below and ought not have re­

appreciated the entire evidence of record is concerned, from the

impugned judgment and order passed by the High Court and in 19

the facts and circumstances of the case, we are of the opinion

that the High Court has not exceeded in its jurisdiction while

deciding the appeal under Section 100 CPC. The High Court has

framed and answered the substantial questions of law referred to

in paragraph 7 of the impugned Judgment and Order. The

questions of law framed by the High Court are Substantial

Questions of Law, more particularly question No. 1. While

answering the aforesaid question of law, when the High Court has

discussed the evidence, it cannot be said that the High Court has

re­appreciated the entire evidence of record. Many a times, while

deciding/answering the Substantial Question of Law, the

evidence on record is required to be discussed and/or considered.

But, by that itself, it cannot be said that it is a re­appreciation of

the entire evidence on record, as sought to be contended on

behalf of the appellants.

8. In view of the above and for the reasons stated above, we see

no reason to interfere with the impugned judgment and order

passed by the High Court dated 02.07.2007. We are in complete

agreement with the view taken by the High Court. Under the

circumstances, the present appeal fails and the same deserves to

be dismissed and is accordingly dismissed. No costs.

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……………………………….J. [L. NAGESWARA RAO]

NEW DELHI, ……………………………….J. MAY 09, 2019. [M.R. SHAH]