Somanath Sahu, the alienor of Ext. D was the manager of the joint family consisting of he himself and his sons, plaintiff and defendants 3 and 4. Plaintiff alleged in the plaint that there was no necessity for the sale in question and the family has not been benefited by the sale. Defendant No. 1 in the written statement never raised specifically that there was any antecedent debt and to discharge that debt sale had been affected. On the other hand, it was averred that there was legal necessity of the family and for the said necessity the sale had been affected. The question that arises for consideration, therefore, is whether in the absence of any pleading with regard to the existence of antecedent debt or that the sale was for discharge of antecedent debt would it be permissible for a party to lead evidence on that score and would it be permissible for a Court to consider that evidence and came to a finding that the sale was for discharge of antecedent debt. The manager of a joint Hindu family has power to 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, what would be a legal necessity, had been described by Mulla in Article 243 of the Principles of Hindu Law so as to be within the powers of a Manager of a joint family to make an alienation. When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating co-parcenary property which no other co-parcenar has. He can make a gift of ancestral movable or immovable property as provided under Articles 225 and 226 and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over co-parcenery property than any other manager. Thus the power of sale of any co-parcenery property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the co-parcenery property to discharge a debt contacted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at. Mr. D. Mishra, however, places reliance on a decision of the Karnataka High Court in the case of Fakirappa v. Venkatesh MANU/KA/0086/1977, and contends that no prejudice having been caused to the plaintiff, even if it was not pleaded in the written statement that the alienation was for the discharge of antecedent debt, it would be open for the defendant to lead evidence on that score and the Courts can examine the same and come to their own conclusion. But on examining the aforesaid decision, I do not find anything mentioned therein which supports Mr. Mishra's stand. Further in that case the defendant pleaded in the written statement that the sale deed was executed by the father of the plaintiff for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that, therefore, the sale was binding on the plaintiffs. The aforesaid decision is, therefore, of as assistance to the contention raised by Mr. D. Mishra. Mr. D. Mishra though relies upon the decision of the Supreme Court in the case of Magubai Ammal v. S. Shama Rao MANU/SC/0089/1956, and contends that the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice and, therefore, the plea of antecedent debt can be examined and sustained as in that case. The Supreme Court on examining the provision of Order 6 Rule 2, C.P.C. came to hold that even though no specific pleading had been taken for the sale, the defendant was affected by the doctrine of lis pendens and non-specific issue was raised thereon but the defendants went to the trial with the full knowledge that the question of lis pendens was in issue and had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and, therefore, the absence of specific pleading was treated to be a mere irregularity, but I am unable to apply that ratio to the present case since the plaintiff never knew that the defendants would prove a case of existence of antecedent debt. Such case not having been pleaded in the written statement, it is only at the evidence stage of the defendants some of the witnesses stated about the same. Consequently, the plaintiff had no opportunity to rebut the same and, therefore, it cannot be said that the plaintiff was not-prejudiced in the absence of the specific pleading. I would, therefore, hold that the question of sale being executed for discharge of an antecedent debt not having been pleaded in the written statement, the evidence led on that score by the defendants were without jurisdiction and the Courts had no jurisdiction to come to a finding on that score on the basis of the said evidence. Consequently, the finding that the sale was affected for repayment of an antecedent debt and, therefore, it was for necessity cannot be sustained and is accordingly quashed. No other necessity having been established, it being not established that the sale was for the benefit of the estate and the finding on the question of antecedent debt having been set aside by me, it must be held that the father of the plaintiff had no power to alienate the joint family co-parcenery property under Ext. D while acting as the Manager of the family and the sale deed Ext. D must be held to be invalid and does not confer any title on defendant No. 1.
IN THE HIGH COURT OF ORISSA
Second Appeal No. 31 of 1981
Decided On: 27.08.1990
Biranchi Narayan Hadu Vs. Smt. Krushnapriya Debi and Ors.
Hon'ble Judges/Coram:
G.B. Pattanaik, J.
Citation : AIR 1991 Ori 55
1. Plaintiff is the appellant against a confirming judgment in a suit for recovery of possession on the allegation that the alienation made by the father of the plaintiff is invalid and does not convey any title.
2. The plaintiff alleged that he along with defendants 3 and 4 are sons of late Somanath Sahu and defendant No. 2 is the widow of late Somanath Sahu. The suit plot No. 2983 under khata No. 1777 measuring an area of Ac. Order 510 decimals is the ancestral pabayat jagir land of the family who were enjoying the same by performing the sebapuja of Lord Lingaraj. That Plot No. 2983 is adjacent to the Lawis road intervened by plot No. 2982 and plot No. 2982 belonged to one Harekrishna Batu and others. In order to have access to plot No. 2983, the plaintiff had purchased Ac. 0. Order 13 decimals from plot No. 2982. The plaintiffs father was addicted to opium and though he had no right to sell away the joint ancestral property without the consent of the coparceners, he executed a registered sale deed (Ext. D) dated 12-6-65 infavour of defendant No. 1 which was without any consideration and is void. There was no family necessity for executing the sale deed and the family had never been benefited by such sale. It was also stated in the plaint that the recitals contained in the sale deed are all false. Notwithstanding the sale, the rent was being paid to the landlord by the plaintiffs family and during the current settlement, defendant No. 1 got her name recorded and as the said defendant No. 1 did not vacate the suit land, the plaintiff was compelled to file the suit for the relief already stated,
3. Defendant No. 1 filed the written statement denying the allegations made in the plaint. It was alleged in the written statement that the plaintiff has no locus standi to file the suit since the land has vested in the State and the same has not been settled with the plaintiff. According to defendant No. 1, plaintiffs father executed the sale deed as Karta and manager of the family for meeting the family necessity and, therefore, the sale was valid. Defendants 2 and 4 filed a separate written statement supporting the plaintiffs stand.
4. On these pleadings, the learned trial Judge framed eight issues and recorded the following findings:--
(i) The disputed sale deed is duly supported by full consideration.
(ii) The consideration paid under the sale deed is not inadequate, and the sale deed being supported by due consideration is valid.
(iii) The sale was for the purpose of repayment of antecedents debt.
(iv) Since the defendant No. 1 had pleaded in the written statement that the sale was affected for family necessity and since the sale deed itself mentioned that the sale was for repayment of antecedent debt and parties led evidence with regard to the fact whether there was any necessity for the sale or not and the expression "family necessity" includes "legal necessity", "benefit of the State" and "antecedents debt", there is no substance in the argument of the plaintiff that the evidence with regard to antecedent debt cannot be looked into as it was not specifically pleaded in the written statement.
(v) Defendant No. 1 has made necessary enquiries and believed in good faith that debt existed and when the eldest son of the alienee was present there was hardly any reason for the defendant to disbelieve the representation.
(vi) The sale is supported by a family necessity in the sense that the plaintiffs father had antecedent debt to repay for which he sold the suit land.
(vii) The plaintiff has failed to establish the allegation that the document was not read over and explained to his father and that the document was obtained by any fraud or misrepresentation.
(viii) The suit having vested in the State Government, the plaintiff cannot claim recovery of possession from the defendant No. 1 and the suit is, therefore, not maintainable.
(ix) The State of Orissa not being a party to the suit, the suit is bad for non-joinder of necessary party.
On these findings the suit was dismissed. On appeal, all these findings have been confirmed.
5. Mr. P.K. Mishra, the learned Counsel for the appellant contends that there being no pleading with regard to the existence of antecedent debt and no issue having been struck in that respect, the evidence could not have been entertained and no finding can be arrived at on that point and the courts below committed gross error in coming to a finding that the alienation in favour of defendant No. 1 was for discharge of antecedent debt and was, therefore, valid. He further urges that the plaintiffs claim over the land was a right of tenancy and not an intermediary right and, therefore, the courts below committed error in coming to the conclusion that the suit is barred in view of the vesting. According to Mr. Mishra, a vesting under the Orissa Estates Abolition Act vests the intermediary right and not the rights of a tenant.
6. Mr. D. Mishra, the learned counsel for the respondent, on other hand, contends that in view of the contents of sale deed parties have led evidence to establish whether there was antecedent debt or not and there being no prejudice caused to the plaintiff, even if it was specifically pleaded that the sale was for discharge of antecedent debt, it was open for the courts below to come to that conclusion on the basis of the evidence led and no error has been committed by the courts below on that score. In reply to the second submission of Mr. P.K. Mishra, the learned counsel urges that by the time of vesting, defendant No. 1 had been recognised as a tenant by the intermediary and, therefore, the plaintiffs suit to evict defendant No. 1 cannot be maintainable. The rival contentions require careful examination of the points in issue.
7. Somanath Sahu, the alienor of Ext. D was the manager of the joint family consisting of he himself and his sons, plaintiff and defendants 3 and 4. Plaintiff alleged in the plaint that there was no necessity for the sale in question and the family has not been benefited by the sale. Defendant No. 1 in the written statement never raised specifically that there was any antecedent debt and to discharge that debt sale had been affected. On the other hand, it was averred that there was legal necessity of the family and for the said necessity the sale had been affected. The question that arises for consideration, therefore, is whether in the absence of any pleading with regard to the existence of antecedent debt or that the sale was for discharge of antecedent debt would it be permissible for a party to lead evidence on that score and would it be permissible for a Court to consider that evidence and came to a finding that the sale was for discharge of antecedent debt. The manager of a joint Hindu family has power to 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, what would be a legal necessity, had been described by Mulla in Article 243 of the Principles of Hindu Law so as to be within the powers of a Manager of a joint family to make an alienation. When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating co-parcenary property which no other co-parcenar has. He can make a gift of ancestral movable or immovable property as provided under Articles 225 and 226 and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over co-parcenery property than any other manager. Thus the power of sale of any co-parcenery property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the co-parcenery property to discharge a debt contacted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at. Mr. D. Mishra, however, places reliance on a decision of the Karnataka High Court in the case of Fakirappa v. Venkatesh MANU/KA/0086/1977, and contends that no prejudice having been caused to the plaintiff, even if it was not pleaded in the written statement that the alienation was for the discharge of antecedent debt, it would be open for the defendant to lead evidence on that score and the Courts can examine the same and come to their own conclusion. But on examining the aforesaid decision, I do not find anything mentioned therein which supports Mr. Mishra's stand. Further in that case the defendant pleaded in the written statement that the sale deed was executed by the father of the plaintiff for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that, therefore, the sale was binding on the plaintiffs. The aforesaid decision is, therefore, of as assistance to the contention raised by Mr. D. Mishra. Mr. D. Mishra though relies upon the decision of the Supreme Court in the case of Magubai Ammal v. S. Shama Rao MANU/SC/0089/1956, and contends that the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice and, therefore, the plea of antecedent debt can be examined and sustained as in that case. The Supreme Court on examining the provision of Order 6 Rule 2, C.P.C. came to hold that even though no specific pleading had been taken for the sale, the defendant was affected by the doctrine of lis pendens and non-specific issue was raised thereon but the defendants went to the trial with the full knowledge that the question of lis pendens was in issue and had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and, therefore, the absence of specific pleading was treated to be a mere irregularity, but I am unable to apply that ratio to the present case since the plaintiff never knew that the defendants would prove a case of existence of antecedent debt. Such case not having been pleaded in the written statement, it is only at the evidence stage of the defendants some of the witnesses stated about the same. Consequently, the plaintiff had no opportunity to rebut the same and, therefore, it cannot be said that the plaintiff was not-prejudiced in the absence of the specific pleading. I would, therefore, hold that the question of sale being executed for discharge of an antecedent debt not having been pleaded in the written statement, the evidence led on that score by the defendants were without jurisdiction and the Courts had no jurisdiction to come to a finding on that score on the basis of the said evidence. Consequently, the finding that the sale was affected for repayment of an antecedent debt and, therefore, it was for necessity cannot be sustained and is accordingly quashed. No other necessity having been established, it being not established that the sale was for the benefit of the estate and the finding on the question of antecedent debt having been set aside by me, it must be held that the father of the plaintiff had no power to alienate the joint family co-parcenery property under Ext. D while acting as the Manager of the family and the sale deed Ext. D must be held to be invalid and does not confer any title on defendant No. 1.
8. The next question that would crop up for consideration is whether the suit can be said to be barred in view of Section 39 of the Orissa Estates Abolition Act. As has been stated by Mr. P.K. Mishra, the learned counsel for the appellant that the plaintiffs right to the lands was that of a tenant and not of an intermediary what right would vest under the provision of the Orissa Estates Abolition Act as in intermediary interest and the right of a tenant remains protected and it continues under Section 8(1) of the Orissa Estates Abolition Act. Consequently, the two courts below committed an error in coming to the conclusion that the suit is barred under Section 39 of the Orissa Estates Abolition Act. Disagreeing with the two courts below, I hold that the suit is not barred under Section 39 of the O.E. A. Act as the right of a tenant is not affected in any manner by so-called vesting of the intermediary interest.
9. In the premises, as aforesaid, the plaintiffs suit is bound to succeed, the judgments and decrees of the courts below are set aside and the plaintiffs suit is decreed. The Second Appeal is allowed but in the circumstances without any order as to costs.
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