Mirdhe, J.:— This Appeal is preferred by the appellants who were the plaintiffs in the trial Court against the Judgment and Decree dt. 17.2.1987 passed by the First. Addl. Civil Judge, Belgaum, in O.S No. 183/84 dismissing the suit of the appellants for partition and separate possession, of the suit schedule properties.
2. We have heard the learned Counsel for the appellants and the learned Counsel for the respondents 2, 3 & 4 fully and perused the records of the case.
3. The appellants as plaintiffs have filed the suit for partition and separate possession of their share in the properties shown in para 1(a) on the following averments:
That plaintiff No. 1 is the wife of defendant No. 1 and plaintiffs 2 to 5 are the daughters of plaintiff No. 1 and defendant No. 1 and plaintiff Nos. 6 and 7 are their sons. The plaintiffs and defendant No. 1 constitute an undivided Hindu family. The suit properties are the joint family properties of the plaintiffs and defendant No. 1 and there is no severance of the status between the plaintiff and defendant No. 1. Defendant No. 1 is addicted to vices and he is squandering the family properties and he has alienated some of the properties. He illegally and unauthorisedly sold agricultural lands bearing R.S No. 704/1, 658/2, 5/1, 223/4, 659/3A, 318 (western ½ portion) situate at Angol and R.S No. 96/2 and 97/1 situate at Belgaum in favour of defendant No. 2 who is the natural brother of defendant No. 1 and the same was not for the benefit of the family or for any legal necessity. The said sale deed is null and void and not binding on the plaintiffs and the sale deed in favour of defendant No. 2 by defendant No. 1 is an outcome of the fraud and undue influence practised by defendant No. 2 on defendant No. 1. Defendant No. 1 has also illegally and unauthorisedly sold a portion of the house bearing Corporation No. 377 situate at Tanaji Galli, Angol, Belgaum in favour of defendant No. 2. Defendant No. 2 in turn has unauthorisedly sold R.S No. 96 measuring 3 Ac. 36 Gs. and R.S No. 18, measuring 1 Ac. 15 Gs. in favour of defendants 3 and 5 and they are not binding on the plaintiffs as the said transactions are null and void. Plaintiffs 2 to 7 have got 3/4 share in the suit schedule properties. That though they called upon defendant No. 1 to effect partition and give the share of the plaintiffs to them, he has been postponing and hence the plaintiffs have been constrained to file this suit. The defendants 1, 3 & 5 remained exparte. The defendant No. 2 filed his written statement and during the pendency of the suit he died and his L.Rs D-2(a) to D-2(c) have come on record and they have adopted the written statement filed by defendant No. 1. Defendant No. 6 came to be impleaded at a later stage.
4. The defence taken by defendants 2, 4 & 6 is as follows:
The plaintiffs have not included all the properties belonging to the joint family of the plaintiffs and defendant No. 1 and hence the suit is not maintainable. It is denied that the suit schedule properties are the joint family properties of the plaintiffs and defendant No. 1. The allegations of the plaintiffs that the defendant No. 1 is addicted to vices and he is squandering the family properties and the alienations made by him in favour of defendant No. 2 are not admitted. Defendant No. 1 was the natural brother of defendant No. 2. He went in adoption to Kudchi family. He filed a suit for partition of his share in the properties of his adoptive family and for the prosecution of that suit he was in need of amount and he approached defendant No. 2 for financial help and defendant No. 2 helped defendant No. 1 by giving him money. Defendant No. 1 raised loan, from the State Bank of India, Agricultural Branch to meet his domestic expenses from 1950 to 1971 and he was also taking financial help from defendant No. 2. So, he executed an agreement of sale in favour of defendant No. 2 on 10.7.64 agreeing to sell the properties of Angol village and also of Belgaum for Rs. 25,000/- and subsequently he executed a sale deed which is a valid sale deed. Since the plaintiffs have not sought for the cancellation of the sale deed, the suit is not maintainable. The defendant No. 4 has purchased an area of 13′-3″ east-west and 100′ north-south from defendant No. 1 in the house property for a valuable consideration of Rs. 10,000/- and he has spent Rs. 15,000/- on the alterations and modifications of that house after the purchase. Defendant No. 6 purchased the land S. No. 5/1 to the extent of half, which bears R.S No. 5/1.A and measures 2000 sq. meters i.e 11 Guntas 5 annas 9 pies. The said land was belonging to one Shri Narendra Malasarji Patil and he has purchased the land from him after due enquiry. The plaintiffs though filed a similar suit, they did not pursue it and it came to be dismissed. Defendant No. 1 was owning some other lands also which he had not included in the suit. On the basis of these contentions, the defendants prayed for the dismissal of the suit.
5. The trial Court framed the following issues:
1. Do plaintiffs prove that the suit properties are the joint family properties of themselves and defts 1 and are available for partition?
2. If so, what are the shares of the plaintiffs in the suit properties?
3. Do plaintiffs prove that the deft. 1 has illegally and unauthorisedly sold away land R.S No. 704/1, 658/2, 5/1, 223/4, 659/3A, 318 (Western half portion) situated at Angol and R.S No. 96/2 and 97/1 situate at Belgaum in favour of the deft-2 and the said sales are without any consetation?
4. Do plaintiffs prove that the deft. 1 has illegally and unauthorisedly sold some portion of the house bearing Corporation No. 377 of Tanaji Galli, Angol in favour of the deft. 4?
5. Do plaintiffs prove that the deft. 2 has illegally and unauthorisedly sold away R.S No. 96 measuring 3 acres 36 gts. and R.S No. 318 measuring 3A-3 guntas in favour of the defendants 3 & 5?
6. Does defendant No. 2 prove that the alienation made by the deft. 1 for legal necessities and were supported with consideration?
7. Does defendant 4 prove that he is a bonafide purchaser for value and has improved the purchased property?
8. Is suit barred by limitation?
9. Is suit for partition not maintainable without bringing all the properties in one hotch pot?
10. Is suit bad for non-joinder of parties?
11. What order or decree?
12. Whether Court fee paid is proper?
6. The trial Court has negatived the contention of the plaintiffs that the suit properties are the joint family properties of themselves and defendant No. 1 and it has also held that the suit properties are not the joint family properties at the time of the suit and they were not available for partition. It has also held that the suit was not maintainable as the plaintiffs have not put all the joint family properties into the hotch pot.
7. The geneology of the family of plaintiff and defendant No. 1 is as follows:
It is not disputed in this case that the plaintiff No. 1 is the wife of the defendant No. 1 and other plaintiffs are the children of plaintiff No. 1 and defendant No. 1. The evidence led by the plaintiff goes to show that plaintiffs and defendant No. 1 constitute a Hindu Joint family. It is nobody's case that there was any partition between the plaintiffs interse or the plaintiff and defendant No. 1 at any time. The very fact that defendant No. 2 purchased some of those properties from defendant No. 1 goes to show that defendant No. 1 has got some right in these properties. P.W 1 has stated that suit properties belong to Kudchi family and the suit lands and suit house are their ancestral properties. There is no effective cross-examination on this aspect of the case. Ex. D-2 is the report of the Tahsildar, Belgaum showing that the properties have come to the possession of defendant No. 1 in execution of the decree in O.S No. 79/51 and the suit lands are some of those lands. P.W 1 has stated that the house is the ancestral house of Kudchi family. In view of the evidence of P.W 1 read in the light of Ex. D-2 it will have to be held that the suit schedule properties are the joint family properties of plaintiffs and defendant No. 1. It is not disputed that defendant No. 2 was the natural brother of defendant No. 1. By Ex. D-6 defendant No. 1 has sold on 8.2.71 some properties to defendant No. 2 for Rs. 2,000/-. In the deed itself, some reference is made to the pre-existing loans incurred by defendant No. 1. When there is a question of alienation of coparcenary property the following persons alone have got power to alienate the coparcenary property so as to pass a good title to the alienee:
(1) the whole body of coparceners, where they are adults;
(2) the manager to the extent as prescribed in law;
(3) the father, subject to certain restrictions;
(4) a sole surviving coparcener under certain circumstances.
Section 256 of Mulla's, Hindu Law, Sixteenth Edition makes it clear that a Hindu father has got special powers of alienating coparcenary property which no other coparcener has got and in the exercise of those powers he can make a gift of ancestral moveable property or even of ancestral immovable property to some extent and he can also sell or mortgage ancestral property whether moveable or immoveable including the interest of his sons, grandsons for the payment of his own debt provided the debt was antecedent debt and was not incurred for immoral or illegal purposes. In Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe . 1988 2 SCC 126 the Supreme Court has laid down as follows:
“The joint family property does not cease to be joint family property when it passes to the hands of sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparcener in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property. If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted.”
The sale deed executed by defendant No. 1 in favour of defendant No. 2 is on 8.2.71 It is not disputed in this case, on 8.2.71 plaintiff No. 6 Malasargi and plaintiff No. 7 Alkesh were not born. Therefore, on the date of Ex. D-6 defendant No. 1 was the sole surviving coparcener. If defendant No. 1 was the sole surviving coparcener of Ex. D-6, he will be having the right to alienate the suit schedule properties as the sole surviving coparcener even without any benefit to the family or for any legal necessity. But the appellants' Counsel has tried to meet this situation by advancing argument that the evidence of P.W 1 goes to show that the plaintiff No. 6 was born in October 1971. On the date of Ex. D-6 he was in the womb of P.W 1 and as a coparcener existing in the womb of his mother at the time when the alienation was made by defendant No. 1 in favour of defendant No. 2, he will be having a right to challenge the alienation made by defendant No. 1 in favour of defendant No. 2. Section 309 in Mulla's Hindu Law, Sixteenth Edition reads as follows:
“A son, who was in his mother's womb at the time of partition, is entitled to a share though born after partition, as if he was in existence at the time of partition. If no share is reserved for him at the time of partition, he is entitled to have the partition re-opened and share allotted to him.”
If a son who is in the womb of his mother is entitled to share at the time of partition, then certainly it follows that such a son is also having a right to challenge the alienation made by the father before his birth but at the time when he was in the womb of his mother. A Ruling of the Supreme Court reported in (1988) 2 SCC 126 : A.I.R 1988 SC 845 referred to supra lays down that a sole surviving coparcener can alienate the joint family properties before the birth of a new coparcenery. But this point is not considered in that Ruling as to whether a son in the womb of his mother can challenge the alienation made by his father when he was in the womb of his mother. This point is further clarified by Section 270 of Mulla's Hindu Law, Sixteenth Edition which lays down as follows:
“Where an alienation is made by a coparcener in excess of his powers, it may be set aside to the extent mentioned in Sections 268 and 269 at the instance of any other coparcener who was in existence at the time of the completion of the alienation. It may also be set aside at the instance of any coparcener who, though born subsequent to the date of alienation, was in his mother's womb at the date of alienation; the reason is that under the Hindu law a son conceived is, in many respects, equal to a son born.”
According to the plaintiffs, the plaintiff No. 6 was in the womb of Plaintiff No. 1 though not born on the date of Ex. D-6. Whereas according to the defendants he could not have been even in the womb of his mother on the date of Ex. D-6. In Vol. XXVII Madras Law Journal 1914 at page 5802 it is laid down that though there is a conclusive presumption that a child is born within 280 days after access has ceased is legitimate, there is no similar or any presumption that a particular child was conceived on 280th day before its birth. It is a matter for proof in each case as to when the conception took place and in the absence of evidence as to it, the party relying upon the fact of such conception must fail. Therefore, though that presumption is regarding the legitimacy of the child born within 280 days, if the access has ceased between his parents, the presumption does not extend as to when the child might have been conceived. It will have to be proved as a fact in each case and that burden of proof will be on the party asserting it. In this case, the burden of proof will be on the plaintiffs for proving it. After going through the Judgment of the trial Court we have seen that this very crucial aspect of the case has escaped the attention of the Court and this is a point which has got a very relevant and far reaching consequence on the rights of the parties in this case. If plaintiff No. 6 was conceived and in the womb of his mother on the date of Ex. D-6, he will be having a right to challenge the alienation made by his father under Ex. D-6. We are of the opinion that this matter requires to be considered by the trial Court after giving an opportunity to both the sides to lead evidence in support of their contentions having a bearing on this aspect of the case. In order to focus the attention of the parties specifically on this aspect of the case, we are framing the following issue for the decision of the trial Court:
Whether the plaintiff No. 6 has got a right to challenge the alienation made by defendant No. 1 in favour of defendant No. 2 under Ex. D-6?
8. Another contention that is raised in this Appeal is that though defendant No. 1 got possession of various properties under the execution of the decree in O.S 79/51 all those properties are not put into the hotch pot in this suit for partition. The answer of the plaintiffs for this contention of the defendants is that the properties available to the family have been put into the family hotch pot and the other properties are not with the family as they have been regranted to the various tenants under the Land Reforms Act. But, there is no evidence produced by the plaintiffs except by interested oral statement of P.W 1 in her evidence. Since the matter is being remanded, we are of the opinion that both the sides should be given an opportunity to lead evidence on this aspect of the case.
9. For the reasons discussed above, the Appeal is allowed. The Judgment and Decree of the trial Court are set aside and the matter is remanded to the trial Court to give an opportunity to both sides to lead evidence on the points referred to by this Court in the Judgment and thereafter dispose of the case according to law, in the interest of justice. No order as to costs.
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