Srinivasan J.
The plaintiff who has failed in the trial court is the appellant herein. He is the son of one Lakshmanaswami Naidu who is the 1st defendant in the suit. The 2nd defendant is his brother. The 3rd defendant is the mortgagee under a document dated 9.6.1969 executed by the 1st defendant, 2nd defendant and the plaintiff represented by his father and guardian, the 1st defendant. The 4th defendant is the auctioneer. Defendants 5 to 11 are the purchasers in the auction held by the 4th defendant under section 69 of the Transfer of Property Act initiated by the 3rd defendant, the mortgagee.
2. The case of the plaintiff as set out in the plaintiffs in short as follows:—
The plaintiff and defendants-1 and 2 were members of a joint family which had several ancestral properties. The plaintiff is entitled to 1/3rd share therein. Certain alienations were made by the 1st defendant which were not for the purpose of the family or for the benefit of the family. They were effected for illegal purposes. The 1st defendant is a spend thrift and he utilised the funds for discharging his avyavaharika debts and for that purpose, he effected alienations. On 28.1.1973, the 3rd and 4th defendants brought the properties for sale in exercise of the powers of the 3rd defendant under the mortgage. Defendants 5 to 11 purchased the properties. The recitals in the deed of mortgage are sham and untrue and they have been made with a view to give a colour to the transaction and to hide the real purpose. The properties are pucca constructions requiring no repairs at all. The plaintiff feels that the amount realised from the mortgage was utilised actually by the 1st defendant for his illegal and immoral purpose. The mortgages did not make any enquiry much less any bona fide enquiry before lending money to the 1st defendant who was a well known spend thrift and a race-GU. No inspection of property was made. Hence the mortgage is not binding on the plaintiff; nor the sale effected on 28.1.1973 is binding on the plaintiff. Hence the plaintiff has prayed for a decree for partition declaring his 1/3rd right in the joint family properties and for division by metes and bounds.
3. The suit is resisted by the defendants 3 to 11. The main contention is that the mortgage is for the discharge of an antecedent debt and it is binding on the plaintiff. It is contended that the 1st defendant has spent money only for the family purposes and none of the debts is avyavaharika. The allegation that the plaintiff is that the 1st defendant is a race-goer and spend thrift is denied. It is also contended that the suit is barred by limitation. A plea is raised that the suit is not maintainable without a prayer for setting aside the alienations.
4. The trial court framed eight issues and three additional issues. It is not necessary to set out the same in detail here. Suffice it to point out that the main issue around which the other issues revolve, is whether the mortgage is tainted by illegality or immorality and whether the debt is binding on the plaintiff.
5. The trial Court has found that the suit is not maintainable as there is no prayer for setting aside the transactions. The trial court has further found that the debts are for legal purposes and for the benefit of the family and for the discharge of antecedent debts. Consequently, the trial court has held that the transaction are binding on the plaintiff and dismissed the suit. Aggrieved thereby, the plaintiff has preferred the appeal.
6. After the filing of the appeal, the plaintiff/appellant died and his wife and daughter have come on record as his legal representatives.
7. It is the contention of learned counsel for the appellant that there is no evidence whatever to prove any enquiry on the part of the mortgagee, the third defendant, as to whether the money borrowed by the first defendant was utilised by the first defendant for family purposes. According to learned counsel the evidence does not make out that the mortgage is for the discharge of antecedent debts and on the other hand, it can be seen from the evidence that it is not for the benefit of the family or for family purposes. It is therefore contended that unless the mortgage discharges the burden of proving either that the transaction is for the family benefit or that he made bonafide enquiry as regards the utilisation of the funds, the Court ought to have held that the transaction is not binding on the plaintiff and granted a decree in his favour as prayed for by him. Learned counsel also referred to certain decisions in his favour in order to contend that the trial court is in error in holding against the maintainability of the suit on the ground that there is no prayer for setting aside the transaction.
8. We have been taken through the entire evidence on record. We do not find any justification to interfere with the conclusion of the trial court on the facts. The plaintiff has examined himself as P.W.1 In his chief examination, he has stated that his father, the first defendant used to play cards and drink. According to him, the first defendant spent monies only for playing cards and drinking and he never effected repairs for the family house. It is stated that the house continues to be in the same state of affairs as it was when he was studying in the school. It should be pointed out here that in the plaint, there is no reference whatever to the first defendant playing cards. In paragraph 4 of the plaint, the allegation is that the plaintiff's father is a spend thrift and he utilised the funds for discharging his “Avyavaharika” debts. In paragraph 7, it is stated that the plaintiff feels that the amount was utilised for illegal and immoral purposes. In the same paragraph, a vague allegation is made to the effect that the first defendant is a well known spend thrift and a race-goer. Nowhere in the plaint there is any allegation that the first defendant used to play cards or drink. In cross-examination, the plaintiff has admitted that his maternal uncle is not living with him. He has stated that the plaint contains a reference to his father playing cards and drinking after losing in the games, whereas there is no such statement in the plaint.
9. P.W.2 is the maternal uncle of the plaintiff. According to him in his chief examination, the first floor in the family house was built in 1965-66. He stated that amounts were borrowed from Triplicane Fund. That itself is sufficient to show that there was antecedent debt for discharge of which Ex.A.1 was a executed. No doubt, P.W.2 has stated that the first defendant used to drink and used to go to races. In cross examination, he has stated that in 1967-68, his elder sister told him that her husband used to go to races and used to drink. He expressed his ignorance with regard to the amount spent for the construction of the first floor. A perusal of his evidence would show that he does not know any of the relevant facts regarding these transactions. In the entire cross examination, his answer to any relevant question is only that he does not know.
10. P.W.3 is a cook in a temple kitchen. He has merely claimed that he knew the defendants 1 and 2. According to him, the first defendant used to drink and play cards. He added that the second defendant also used to drink which was not the allegation of anybody. He has admitted that the first defendant built the first floor in the house 15 years before his deposition. He admitted in cross-examination that he had not gone to the first defendant's house. He has further admitted that he came to know about the defendants only because the public used to talk about them. Thus, his evidence is only a hearsay and it is inadmissible. He has further admitted that he does not know where exactly the first defendant used to play cards. He admitted that the second defendant was serving in the Military
11. The documents filed in the case are sufficient to prove that Ex.A.1 was executed for the purpose of discharging antecedent debts. In fact, the recital in Ex.A.1 is to the effect that the mortgagors borrowed a sum of Rs. 15,000 from Triplicane Permanent Fund Ltd. for the improvement of the properties and they borrowed a further sum of Rs. 15,000 later for the same purpose. The document refers to further charges created in favour of the Triplicane Permanent Fund. In fact, the suit mortgage was executed for the purpose of discharging the earlier debts. There is no reason why the recital in Ex.A.1 should not be given credence. It is seen therefrom that the second defendant was aged about 27 and the first defendant's wife who is also a party to the document was aged about 48 and that the plaintiff's age is given as 14 years at that time. There is no suggestion whatever that the plaintiff's mother had ever acted against the interests of the plaintiff. Neither the plaintiff's mother nor the plaintiff's brother the defendant, has entered the witness box to give evidence in support of the plaintiff.
12. We have no hesitation to hold that the evidence adduced on the side of the plaintiff is hardly sufficient to prove that the first defendant was addicted to drinking and race-going; nor is it proved that he was playing cards and that he was a spend-thrift. There is absolutely no evidence to show that the debts were incurred for illegal and immoral purposes. There is no doubt whatever that the suit mortgage was executed for the purpose of discharging the antecedent debt and thus it is binding on the plaintiff.
13. Learned counsel for the appellants places reliance on the Division Bench judgment of this court reported in Sampoorna Ammal v. Asokan, 1984 (97) LW 217. In that judgment, the Division Bench held that an alienation by the father of the Joint Hindu family which is either for antecedent debt or for legal necessity, will bind the son's interest in the property and that the burden of proving is on the allianee. The Bench observed that where the manager or a father of the joint Hindu family alienates the joint family property, the alienee is bound to inquire into the necessity for the sale and the burden lies on him to prove either there was a legal necessity in fact or the alienation by the father was for the discharge of an antecedent debt or that he made proper and bona fide enquiry as to the existence of such necessity. But in the same paragraph, the learned Judges observed that if the challenge to the alienation is on the ground that the antecedent debts incurred by the father were tainted by immorality, it is for the sons to prove that the antecedent debts were immoral and also that the purchaser had notice that they were so tainted. The last proposition of the learned Judges will apply on all fours in this case. The plaintiff has came to Court with a specific case that the debts incurred by his father, were tainted by immorality. Hence the burden is on him to prove the same. We have found now that he has miserably failed to do so. There is ample evidence to show that the debts were incurred for the benefit of the family in order to improve the proper ties and the mortgage was executed for the purpose of discharging the antecedent debt which was lawfully incurred. We have therefore no hesitation in holding that Ex.A.1 is binding on the plaintiff.
14. Nothing has been stated before us as to how the sale held in pursuance of the power of sale by the third defendant with the help of the fourth defendant, the auctioneer, is not valid. No evidence has been adduced to show that proper procedure has not been adopted by the third defendant or fourth defendant. In the circumstances, the sale held on 28.1.1973 in favour of the defendants 5 to 11 is binding on the plaintiff.
15. In support of his contention that there is no necessity for a prayer to set aside the transaction, learned counsel for the appellant has placed reliance, on the judgment of a single judge of this Court in the case of Nataraja Iyer & others v. Arunachalam and others, 1976 (2) M.L.J 326. A reading of the facts as found in that Report does not show that the transactions in question were effected by the father or manager of the family, and not as guardian of the minor children. Obviously, the transactions were effected only as a Manager of the Hindu joint family and the minors were not eo nominee parties in the document. Yet there was a contention before the learned single judge that there should have been a prayer for setting aside the transactions and without the said prayer, the suit was not maintainable. Negativing the said contention, the learned judge observed as under:—
“Needless to point out that the joint family manager has authority to deal with the entire joint family properties and, for necessity and binding purposes, he can validly alienate joint family properties. If in such cases, a junior member of the coparcenary claims a division of the properties contending that the alienations are not binding on him he is not bound to ask for the setting aside of the alienations made by the joint family manager. This position has been made clear in Kandaswami Udayan v. Annamalai Pillai, 1948 (2) MLJ 130 which followed the Full Bench decision in Ramaswami Aiyangar v. Rengachariar, 1940 (1) MLJ 32: I.L.R 1940 Madras 259 Subba Rao, J., as he then was, held in Kandaswami Udayan v. Annamalai Pillai, 1948 (2) MLJ 130 that where the plaintiffs instituted the suit for partition of the family properties alleging that the properties were the ancestral properties of the plaintiff and their father and that the father alienated the properties, which alienations were not binding on the plaintiff, they are only seeking to recover possession ignoring the alienations and that therefore, it was in substance a suit for mere possession falling under Section 7(v) of the then Court-fees Act and the plaint was not leviable to court-fee under Section 7(vi-A) of the said Act as amended in Madras.
Section 7(iv-A) of the earlier corresponds to section 40 of the present Act while section 7(v) corresponds to section 37(1) of the present Act. As I said, this decision follows the Full Bench decision in Ramaswami Aiyangar v. Rangachariar, 1940 (1) MLJ 32. These are clear authorities for the proposition that were the alienations questioned are by a joint family manager, the plaintiff who question the alienations need not pray for setting aside the alienations and the question of paying court-fees under section 40 of the Madras Court Fees and Suits Valuation Act does not arise. Only in a case where property belonging to a minor is alienated by his guardian, the minor becomes eo-nominee a party to the document and hence he is obliged to ask for setting aside the alienation. In a case where the joint family manager alienates the family properties, even though the minor coparceners are also mentioned as parties to the document, that would not lead to the conclusion that when the minor coparceners question the alienation, they would be obliged to pray for setting aside the alienation”.
The learned Judge also refers to a passage in the judgment in Sankaranarayana v. Kandasami, 1956 (2) M.L.J 411: A.I.R 1956 Mad. 670, in support of the proposition laid down by him.
16. We are of the opinion that that proposition has been too widely stated by the learned Judge in that case, the two judgments of the Full Bench referred to by the learned judge, one in Ramaswami Aiyangar v. Rangachariar, 1940 (1) MLJ 32: I.L.R 1940 Madras 259 and other in Sankaranarayana v. Kandasami A.I.R 1956 Madras 670 do not support the said proposition.
17. In the former case, namely Ramaswami Iyengar v. Rangachari, 1940 (1) MLJ 32: I.L.R 1940 Madras 259, the Full Bench has gone one step further and held that in a case where possession has passed to the alienee, there should be a prayer for setting aside the transactions before the plaintiff could recover possession from the said alienee with regard to the decrees passed against the minor children in which they had been eo nominee impleaded as parties, the Full Bench held that they should pay prescribed court-fees under section 7(iv-A) of the Court-fees Act as amended in Madras and they must be held to have impliedly asked for their cancellation and must accordingly stamp the plaint ad-valorem. Thus, the propositions laid down by the Full Bench do not go to the extent of saying that if an alienation is made by a father-Manager describing himself as guardian of the minor children who are members of the joint family, there is no necessity to pray for setting aside the transactions.
18. On the other hand, the subsequent Full Bench judgment in Sankaranarayana POM v. Kandasamipillai, 1956 (2) M.L.J 411: A.I.R 1956 Mad. 670, has placed the matter beyond doubt by answering two questions referred to them in the following manner.
“Our answer to the first question is that if the minor is eo nominee a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under section 7(iv-A) of the Court-fees Act and it is not enough if he applies for possession under Section 7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside”.
There is no doubt whatever that the Full Bench has decided against the propositions now contended for by learned counsel for the appellant on the strength of the judgment in V. Nataraja Iyer & others v. Arunachalam & others, 1976 (2) M.L.J 326.
19. A Division Bench of this court, in which one of us was aparty, had recently an occasion to consider the question in Sridharan & others v. Arumugham & others, 1993 (2) M.L.J 428 and it has held that in so far as the documents in which the minor children are made parties, they are bound in law to pray for setting aside the same and without such prayer, the suit is not sustainable in relation to those documents.
20. Hence the view taken by the trial judge that the suit is not maintainable in the absence of a prayer to set aside the alienations, is correct.
21. The appellant has filed C.M.P No. 2786 of 1994 for ordering amendment of the plaint to introduce a prayer to set aside the mortgage deed dated 9.6.1969 (Ex.A.1) and for cancellation of the consequential sale deed dated 3.9.1973 This petition is vehemently opposed by the respondents. A detailed counter has been filed. One of the contentions raised in the counter affidavit is that the prayer for setting aside the sale will be barred by limitation and there is no justification whatever to grant amendment.
22. The trial court has found under Issued-6 that the suit which was filed on 6.4.1977 was not barred by limitation as it was within three years from the date of the plaintiff attaining majority. The trial court relied upon Ex.A.2 the birth certificate produced on the side of the plaintiff to show that he was born on 19.7.1956 The trial court has observed that the genuiness of Ex.A.2 has not been challenged by the defendants.
23. We have however a grave doubt as to whether Ex.A.2 pertains to the plaintiff at all. In the first place Ex.A.2 gives the name of the father of the child born on 19.7.1956 as Lakshmipathi Naidu. It is not the case of the plaintiff or any of his witnesses that his father was known as Lakshmipathi Naidu. He has been described as Lakshmipathi Naidu. Secondly Ex.A.1 the deed of mortgage which was executed by the first defendant, his wife and the second defendant gives the age of the plaintiff who is shown as fourth mortgagor represented by his father and natural guardian as 14 years. If that is so, he was born in 1955 and not in 1956. Thirdly, the place of birth of the child in Ex.A.2 is shown as natham in Thalayatham Gudiyatham Taluk, North Arcot District. There is no evidence to show that the plaintiff was born in Natham. Fourthly, the plaintiff has categorically stated in the plaint in para-12 that he attained majority on 28.1.1973 That would also put his date of birth as in 1955.
That is in accordance with the age mentioned in Ex.A.1 the mortgage deed when the plaintiff has chosen to give a specific date in the plaint as his date of birth he ought to have adduced evidence to show that it was a mistake and that Ex.A.2 brings out the correct date of birth. On the other hand, the plaintiff has not made any reference whatever to Ex.A.2 it is only P.W.2 who has stated that Ex.A.2 is the birth certificate relating to the plaintiff. No doubt P.W.2 has not been cross-examined with reference to Ex.A.2 by the defendants. But the above circumstances throw considerable doubt as to whether Ex.A.2 pertains to the plaintiff. In such circumstances.
We do not think it proper to grant the prayer for amendment of the plaint at this distance of time. Even in the written statement of the defendants 3 and 4 filed on 22.1.1979 and 7.7.1979 respectively a plea was raised that the suit was not maintainable without a prayer for setting aside the alienations. The suit was disposed of only on 24.9.1982 The plaintiff did not seek to amend the plaint and include such a prayer even after filing of the written statements. Even though the appeal was filed in 1985 and the learned judge has given a definite finding that the suit was not maintainable in the absence of a prayer to set aside the alienations, the plaintiff has not chosen to seek amendment of the plaint till 1994 he filed this C.M.P on 20.1.1994
There is no doubt whatever that on date on which amendment was prayed for, the suit was very much barred by limitation with reference to the prayer for setting aside the alienations. Hence was dismiss C.M.P No. 2786 of 1994.
24. In view of our findings given above, the appeal A.S No. 434 of 1985 is hereby dismissed.
Second Appeal No. 71 of 1993:—
25. This Second Appeal arises out of a suit for recovery of possession and damages filed by the respondents 5 to 11 in the above Appeal A.S No. 434 of 1985 based on the purchase made by them in the auction held on 28.1.1973 by the auctioneer, the third defendant in O.S No. 1270 of 1978. The purchasers have filed the suit for recovery of possession as mortgagors refused to hand over possession to them. The courts below have concurrently held in favour of the plaintiffs and granted a decree as prayed for by them. The legal representatives of the deceased first defendant have preferred this Second Appeal. In view of our upholding the validity of the mortgage and the sales held by the auctioneer, there is no merit whatever in the contentions of the appellants herein. Consequently, the Second Appeal has to be dismissed and it is hereby dismissed.
26. In the result, A.S No. 434 of 1985 and Second Appeal No. 71 of 1993 and C.M.P No. 2786 of 1994 are dismissed. No costs.