Decided on February 02,1950



Govinda Menon, J. - (1.) By Ex. D-2 dated 4th September 1934 the properties in dispute were sold to D. W. 2 by one Muthukaruppa Pillai who was the manager of a joint family consisting of himself and the present defendants 3 and 4. D. W. 2 sold the properties in her turn to defendant 1 under EX. D-1 dated 25th February 1942. The plaintiff is a purchaser of 1/3rd share of the suit properties from defendant 3, after he attained majority and on foot of that title brought the suit for partition and recovery of the 1/3rd share which he purchased. The trial Court found that the sale under Ex. D-2 by the manager of the joint Hindu family was valid and binding on the family and therefore defendant 1 had acquired absolute title so far as the properties were concerned and the sale by defendant 3 in favour of the plaintiff did not therefore convey any title or right to the properties. The trial Court also found that the sale-deed in favour of the plaintiff was not a genuine transaction. On these grounds the suit was dismissed.
(2.) The plaintiff took up the matter in appeal and the learned District Judge of Tiruchirapalli was of opinion that the finding of the District Munsif that the sale in favour of the plaintiff was not genuine could not be justified. Therefore the learned District Judge gave a declaration setting aside the finding of the learned District Munsif that the sale to the plaintiff was not genuine and he held that the plaintiff was entitled to bring the suit. The other point raised by defendant l before the lower appellate Court that the plaintiff was not entitled to bring a suit without setting aside the sale in favour of D.W. 2 was also found against defendant 1 by the lower appellate Court. The correctness of these two findings cannot be disputed in second appeal because so far as the question regarding the genuineness of the sale in favour of the plaintiff is concerned, it is abundantly clear from the evidence that the sale-deed is genuine and the learned Judge's finding on that point being on a question of fact cannot be upset in second appeal. On the other question as regards the right of the plaintiff to bring a suit without setting aside the sale in favour of D. W. 2 the lower appellate Court relied upon the decision in Kamaraju v. Gunnayya, 45 M. L. J. 240 : (A. I. R. (11) 1924 Mad. 322) and rejected the view of the Calcutta High Court in Man Mohan v. Bidhu Bhusen, A. I. R. (26) 1939 Cal 460 : (185 I. C. 6). I see no reason to disagree with the conclusion of the learned Judge in his preference of the Madras Bench decision to that of the Calcutta Court. Therefore his decision on that point also is correct.
(3.) The real question in the second appeal is whether the learned District Judge has approached the question from the proper legal standpoint when he formulated the burden of proof in the case. Defendant 1 in big written statement did not state that D. W. 2 from whom he derived his title was a bona fide purchaser who made proper enquiries regarding the necessity for the transaction and was satisfied about the existence of such necessity. On the other hand, the case put forward is that D. W. 2 knew the state of the family sufficiently well and was aware of the fact that the marriage of Muthukaruppa's sister had to be performed and for that purpose money was borrowed and the same was expended. In chief-examination D. W. 2 stated that Muthukaruppa sold the land to meet the marriage expenses of his sister, the sale price being a sum of Rs. 200. But in cross-examination she says she was unable to know how much money was spent for the marriage. The learned District Judge was of opinion that the evidence in the case was not enough to show that money was required for the purpose of the marriage for the reason that in the sale-deed Ex. D-2 there was no recital whatever that money was required for such marriage. In the absence of any recital in the sale-deed with respect to the necessity for the money, the learned Judge was inclined to infer that the existence of a marriage at or about the time when the land was sold was utilised for the purpose of inventing a necessity. One cannot say that the learned Judge has gone wrong in coming to that conclusion. Moreover, the learned Judge held that it had not been proved that the money was spent for that purpose or that it was necessary to secure the money in such a manner for meeting the expenses.;

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