(Prayer: Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree made in A.S.No.206 of 1992, dated 25.08.1993 on the file of Appellate Authority cum III Additional Sub Judge, Coimbatore as partly confirmed in O.S.No.510 of 1981 dated 28.07.1992 on the file of the I Additional District Munsif, Coimbatore.)

1.The plaintiff appeals. For the sake of convenience, the parties shall be referred as per their ranks in the suit.

2.The plaintiff presented OS.No.653 of 1978, seeking partition and separate possession, on the file of the Sub Court at Coimbatore. The prayer in the suit was as follows:-

                   “a)directing the division of Schedule II and IV and 3/4th share in Schedule III into 3 equal shares and put the plaintiff in possession of one such a share;

                   b)divide 1/4th share in Schedule III into four equal shares and allot one such share to the plaintiff;

                   c)to appoint a commissioner to divide the properties.”

3.The plaintiff, defendants 2 & 3 are the children of the first defendant and one, Marathal. The first defendant and his brother, one, Periya Gounder were the sons of one, Sinniah Gounder. By way of a partition between the first defendant and his younger brother Periya Gounder, a house in Kaikolapalayam and lands measuring 48 cents in S.F.No.36/2 and 60 cents in S.F.No.38 in Vellanaipatti Village, Coimbatore Taluk, Coimbatore District, were allotted to the first defendant. As the first defendant could not conveniently enjoy the said properties for himself and on behalf of his minor children, he executed a sale deed on 21.11.1963, in favour of two persons, Periya Gounder and Ramasamy Gounder. From and out of the sale proceeds and joint family funds, the first defendant purchased the suit second schedule mentioned property. Marathal’s father owned the properties described in schedule 3. After his death, his four daughters divided the property amongst themselves. Marathal got 1/4th share and the remaining 3/4th share was purchased by the first defendant. The purchase was, from and out of, the joint family funds. The plaintiff got married in the year 1977. He wanted to move away from the family. Hence, the defendants 1 & 2 executed a deed releasing their right over their house property and the plaintiff became the absolute owner of the same.

4.On account of the misunderstanding that arose between the daughter in law (wife of the plaintiff) and the first defendant, the first defendant alienated the suit second schedule property in favour of the fourth defendant on 01.08.1977. The plaintiff pleaded that the sale is, sham and nominal, brought about to defeat the interest of the plaintiff. He urged that the family had sufficient income and it was from that income, the fourth schedule property had been purchased by the first defendant. The plaintiff stated that he issued a lawyer’s notice on 30.03.1978, seeking partition. The same came to be denied by the defendants 1 & 4. Hence, the suit for partition.

5.Summons were served on the defendants. The first and fourth defendants filed separate written statements. The first defendant admitted the relationship between the parties and the averments in paragraph No.5 and 6 of the plaint relating to the manner in which the second schedule property was purchased. He pleaded that he was a Mill Worker and from and out of his income, Schedule III of the property was purchased. He alleged that when the property was purchased, the plaintiff and the 2nd defendant were minors and did not contribute towards the purchase of the said property. He added there was no income from the property mentioned in the II Schedule, and that the plaintiff is not entitled to any share in the III Schedule property. He agreed that there was a release deed executed on 30.01.1978 by defendants 1 to 3 in favour of the plaintiff regarding the house property situated at Kaikolapalayam.

6.He pleaded that this was pursuant to a family arrangement whereunder, the plaintiff was to retain the house property and the landed properties were to be enjoyed by defendants 1 to 3. He included this property as Schedule I to the written statement. However, no Court fees, nor counter claim was made with respect to this property. The first defendant alleged that the plaintiff did not act as per the terms of the family arrangement and is coming forth with the present suit. He admitted that the plaintiff and the defendants 1 & 2 were living as joint family members and that the properties mentioned in the II Schedule to the written statement was purchased in the name of the plaintiff, from and out of, the income of the first defendant, and income from the landed properties.

7.He pleaded the plaintiff did not have any independent source of income and therefore, the properties mentioned in Schedule would also have to be taken into consideration while dividing the entire properties. He further pleaded that the property set forth in Schedule-IV does not belong to him and that he has nothing to do with the same. Insofar as the properties mentioned in Schedule II is concerned, he urged that he exercised his power as the Manager of the family to discharge the dues under promissory notes incurred by him. He pleaded that he had borrowed Rs.3,000/- from the 4th defendant in the year 1976 for repairing the old house and also to celebrate the marriages of the plaintiff and the 2nd defendant. He added that in the year 1977, he further borrowed a sum of Rs.3,000/- for the same purpose. As he was not in a position to repay the amount, he executed a sale deed of suit property mentioned in schedule No.2 in favour of the 4th defendant, and that the same is binding on plaintiff and defendants 2 & 3. He pleaded that since all the properties have not been brought into the suit, the suit is liable to be dismissed for the vice of partial partition.

8.The 4th defendant filed a separate written statement. He was concerned only with Schedule-II of the suit. He pleaded that he was not aware of the plaintiff and the defendants 1 & 2 being in a joint family, but he admitted that they were living together. He added that 1st defendant as the Manager of the family, executed a sale deed in his favour. He pleaded that the sale deed dated 01.08.1977, came about since the 1st defendant did not repay the promissory note debts executed on 10.01.1976 and 09.04.1977. He added that the borrowings had been made to celebrate the marriage of the 2nd defendant and plaintiff and also to renovate the old house in connection with the marriage.

9.He pleaded that the plaintiffs and defendants 1 & 2 were living together when the borrowings were made, and at the time of sale. He added that the 1st defendant was looking after the entire affairs of the family, and that the borrowings had been made for the benefit of the family alone. Hence, he did not deem it fit to get the signature of the plaintiff and the 2nd defendant in the sale deed dated 01.08.1977. He relied upon the averments in the sale deed to substantiate his case. He added that the house for which the renovation took place have not been included as one of the items in the suit property.

10.Though he is not interested in the properties mentioned in the IV Schedule of the suit, he pleaded that it was only after the sale in favour of the 4th defendant, that the 1st defendant had purchased the property mentioned in Schedule-IV. He pleaded that the plaintiff has come forward with the suit, in order to defeat the rights of a bonafide purchaser for value. Finally, he pleaded that, in case the suit is decreed, the share allotted to that of the 1st defendant may be allotted to him.

11.The purchaser of the properties mentioned in the III Schedule of the suit from the 1st defendant was impleaded as a party to the suit on the basis of the orders passed in I.A.No.235 of 1982 dated 18.12.1986. Though summons were served on him, he remained exparte. The 2nd defendant died pending the litigation without leaving any issues.

12.By virtue of enhancement of pecuniary jurisdiction, the suit came to be transferred to the file of the learned District Munsif, Coimbatore, and renumbered as O.S.No.510 of 1981.

13.On the basis of these pleadings, the learned Trial Judge framed the following issues:-

                  

                  

14.The plaintiff examined himself as P.W.1. He marked Ex.A1 to Ex.A16. The 4th defendant examined himself as D.W.1 and marked Ex.B1 to B7.

15.The learned Trial Judge answered issue Nos.1, 2 and 3 in favour of the plaintiff and issue Nos.4 & 5 in favour of the defendants. He came to the conclusion that the properties mentioned in Ex.B1 is jointly owned by the family, and points out the release deed in favour of the plaintiff, and since that property had not been included in the suit, it suffers from the vice of partial partition and consequently, he dismissed the suit.

16.Aggrieved by the said judgment and decree, the plaintiff preferred an appeal to the learned Sub Judge at Coimbatore. This appeal was received as A.S.No.206 of 1992.

17.The learned Subordinate Judge, Coimbatore, agreed that the properties were joint family properties and held that the suit was not bad for partial partition. He granted a preliminary decree for partition with respect to suit properties mentioned in Schedule Nos.3 & 4, but confirmed the decree insofar as the 2nd Schedule properties were concerned. He came to this conclusion on the ground that the debt incurred by the 1st defendant from the 4th defendant binds the plaintiff and defendants 2 & 3 and, therefore declared the sale valid.

18.Against the reversal, the plaintiff alone has preferred the present second appeal.

19.This second appeal had been admitted by this Court on 28.02.1994 on the following substantial questions of law:-

                   “1.Whether the judgment is not vitiated for the reason that the reply notice issued by the 1st and 4th defendants that constitute material pieces of evidence have been ignored?

                   2.Whether the alienationn by the Manager of the joint family without the major coparceners jointly executing the same can bind the major coparcenors?

                   3.Whether pleadings as such without proof can be acted upon or in other words whether pleadings can take the place of proof?”

20.Pending second appeal, the properties mentioned in the III Schedule was sold by the legal heirs of the 5th defendant in favour of the respondents 13 to 18. They filed an application to implead themselves in C.M.P.No.11803 of 2025 and the same was ordered by this Court on 04.09.2025. The purchaser of Schedule-II properties / 4th defendant Marappa Gounder had passed away pending the second appeal and his legal heirs were brought on record by this Court by an order dated 14.06.2019. Similarly, respondents 10 to 12 were impleaded by an order of this Court dated 19.01.2022.

21.I heard Mr.K.Mayilsamy for the appellant, Mr.R.Babu for respondents 6 to 9 and Mr.L.Mouli for respondents 10 to 12 and Mr.Anwar Sadath for the respondents 13 to 18.

22.The admitted genealogy of the parties are hereunder:-

                  

23.It is the plea of Mr.K.Mayilsamy that the burden of proof is on the 4th defendant as a purchaser to show that the alienation made by the 1st defendant in his favour was for family necessity, which the 4th defendant had miserably failed to do so. He pointed out the 4th defendant had only relied upon the recitals of the sale deed marked as Ex.A7 in his favour, and did not mark the promissory notes alleged to have been executed by the 1st defendant in his favour. He states that the 4th defendant is not a stranger to the family since he is the son of Periya Gounder, as is clear from the written statement, and was well aware about the relationship between the other members of the family. He points out that on his side, he had marked Ex.A13 to show not only sufficient funds were available with the 1st defendant on the date of the alleged sale, but he had excess funds which he had placed in a fixed deposit, and had withdrawn the amount nearly three years after the alleged date of sale. He states the plaintiff never consulted about the sale, nor did he consent to the same; and if the statement made by the 4th defendant is true, he would have been called upon to attest the sale deed, which he did not do so. He points out that the Lower Appellate Court had relied upon the pleadings of the 1st defendant to come to the conclusion that the alienation had been made for family necessity based on the borrowals, and such an approach is erroneous since the 1st defendant never entered the witness box.

24.Mr.R.Babu appearing for the legal heirs of the 4th defendant urged that the sale had been made for the benefit of the family, as is clear from Ex.A7. He points out that, admittedly, Kandaswami Gounder was the Kartha of the family consisting of himself, the plaintiff and the 2nd defendant. He urges that it is a settled position of Hindu Law, that a Kartha can alienate the property for family necessity.

25.Mr.Anwar Sadath appearing for respondents 13 to 18 argued that his clients have purchased the property from the legal heirs of Devaraj, who had purchased the properties mentioned in third schedule of the suit on 16.03.1981 from the 1st defendant. He urges that the suit had been dismissed and by the time the appeal came to be filed, Devaraj, who had been shown as the 5th respondent had passed away and, therefore, the decree with respect to the third item of the property arraying the deceased person is a nullity. He adds that Devaraj had left behind as his legal heirs, his wife and daughters and they had not been brought on record. Without knowledge of the litigation, he had purchased the property pending the second appeal in the year 2008. Therefore, he seeks this Court to declare the decree for partition, insofar as the properties mentioned in suit schedule III is concerned, as nullity.

26.Mr.L.Mouli urges that they are children of the pre-deceased daughter of Kandaswami Gounder, namely, one, Subbathal. Kandaswami Gounder had executed a “WILL” in favour of his grandchildren and the “WILL” had been proved pursuant to the orders of the Court. He states that the plaintiff, the defendants, and the children of Subbathal have settled the issues amongst themselves and requested this Court to record the compromise that had been entered into between them.

27.I have carefully considered the submissions of both sides and I have gone through the records.

28.Before I enter into a discussion on the respective arguments, I should point out that both the Courts below had come to a conclusion that the properties, which is the subject matter of the suit, are joint family properties. Having come to the said conclusion, the Trial Court had dismissed the suit on the grounds of partial partition. It was obvious that the plaintiff alone who could have preferred an appeal to the learned Sub Judge. The learned Sub Judge too, agreed with the Trial Court, that the properties are joint family properties. Hence, the issue that the properties are joint family properties have attained finality. The learned Sub Judge, as pointed out supra, had granted a decree for partition for schedule Nos.3 & 4. He had dismissed the suit insofar as second schedule alone is concerned. It had dismissed the appeal insofar as second item is concerned, only on the ground that the alienation was made for legal necessity. With respect to item Nos.3 & 4, the defendants have not preferred a second appeal. Hence, the scope of this appeal is limited to whether the plea of legal necessity has been made out.

29.It is a settled position of law that the burden of proof is on the purchaser - alienee to demonstrate that the sale made by a Kartha of a joint Hindu Family was for legal necessity. The purchaser should establish the actual existence of a genuine legal or family necessity. The purchaser should also show that he had made proper and bonafide enquiries into the existence of such a necessity and that, he had reasonably satisfied himself that such debts existed before the purchase. Legal necessity does not mean actual compulsion, but serious and sufficient pressure on the joint family which justifies the sale. The Treatises on Hindu Law give examples of legal necessity, such as expenses for maintenance of daughters, marriage, education of children, or payment of Government dues or tax, etc., The purchaser would have to prove the necessity by way of concrete and convincing evidence, which could be in the form of documentation, money receipts, or witness testimonies to substantiate the claim.

30.At this juncture, it should be pointed out that the recitals in the sale deed by themselves, while admissible, are not sufficient to prove the claims of legal necessity on their own strength. Such recitals require corroboration. Similarly, the scope of enquiry to be conducted by a purchaser is that, which is expected of a person with ordinary prudence. This enquiry should not be strained to such an extent that an alienee is required to prove how the Kartha applied each and every part of the sale consideration. This is because the later are details, which would be only within the knowledge of the family members, and would not be known to outsiders like the alienee. The onus of proof on the alienee – purchaser cannot run counter to the principle of reverse burden enshrined in Section 106 of the Indian Evidence Act, and saddle him with the liability to prove facts which are within the special knowledge of the Kartha and his coparceners. (See, Dastagirsab Vs. Sharanappa, 2025 SCC OnLine SC 1983). If the purchaser fails to discharge this burden of proof, the alienation so made would be valid only to the extent of the share of the Kartha. As pointed out by Courts, the promptness with which the property’s shareholder or coparcener decides to approach the Court is also a factor to be considered while dealing with a suit for partition.

31.We will now look at few of the authorities which have dealt with the aspect of necessity.

32.The first one is the judgment of Division Bench of this Court in Vembu Iyer Vs. Srinivasa Iyenger and others, (1912) 23 MLJ 638. In that case, a suit was presented to set aside the sale made by the plaintiff’s guardian in 1889. The sale had been made for discharge of certain debts due to the plaintiff’s father. The plaintiff alleged that there was no necessity to alienate the property. He had urged that with prudent management, the debts could have been cleared from and out of the income generated from the properties. Both the Courts below have upheld the sale. Challenging the decrees, the second appeal came before this Court. Justice Sundara Aiyar held that the position which the Courts have to consider is whether in the circumstances that existed at the time of alienation, the act of alienation would be regarded as a prudent one by men of ordinary prudence in dealing with the property of a ward. He held no distinction can be made between a sale or a mortgage because when the act of alienation is done by a person who is the manager of the estate in which he has interest, he will be equally bound, if under the circumstances the step taken was necessary, proper, or prudent. He pointed out as follows:-

                   “Necessity” seems to connote the idea of warding off an evil or the doing of something that cannot be avoided or of something which it is one’s legal duty to do.

33.Concurring with this view, Justice T.Sadasiva Iyer, held as follows:-

                   “I think the only safe and convenient rule is (a) that if the guardian of a Hindu minor alienates the minor’s property because he considers it after weighing all the then existing circumstances, to be in the best interests of the minor to make that alienation, the minor is clearly bound by that act of alienation: (b) that even if the guardian acted wrongly, the alienee is protected if he acts in good faith after making due enquiry and if he is satisfied on the representations of the guardian and on his own independent enquiry that the guardian’s act appears then to be clearly for the minor’s benefit.”

34.Having come to this conclusion, the learned Judges dismissed the appeal with costs. I am alive to the position that this judgment related to alienation of a property by a guardian and not by a karta. I am referring to this judgment only for the purpose of elucidating the concept of necessity.

35.A similar issue arose yet again in the case of Ramsumran Prasad and others Vs. Musammat Shyam Kumari and others, [AIR 1922 PC 356]. This was a case where the reversionary heirs to the estate filed a suit against the alienation of a property by the late estate owner’s widow, in order to extinguish a mortgage decree. One of the issues that had to be decided by the Board was on the scope and contention of the word ‘necessity’. Lord Phillimore J. speaking for the Board held

                   “Necessity does not mean actual compulsion, but the kind of pressure which the law recognises as serious and sufficient”.

This view has been consistently followed by several High Courts.

36.I only have to set forth the authorities which have concurred with this view:-

                   (i)Santosh Kumar Mullick Vs. Ganesh Chandra Khan, (1926- 27) 31 C.W.N. 65;

                   (ii)Gur Prasad Vs. Ram Sukh and another, AIR 1952 All 938;

                   (iii)Gulab Devi Vs. Banwari Lal and others, ILR 1940 All 555;

                   (iv)Smt.Rani and another Vs. Smt.Santa Bala Debnath and others, 1970 (3) SCC 722, (para.No.10).

37.It is at this juncture that Ex.A13 becomes crucial and relevant. Ex.A13 is the savings bank passbook standing in the name of Kandasamy Gounder, S/o.Sinniah Gounder, namely, the 1st defendant. The passbook relates to Account No.35-6413. It shows that the 1st defendant was a retired Mill employee. The alienation in favour of the 4th defendant was on 01.08.1977 for the alleged promissory note said to have been executed in the year 1976 and 1977. The promissory notes had not been produced before the Court by the 4th defendant. As to what happened to the promissory notes has also not been explained by the him. The 1st defendant, after having filed a written statement, had remained exparte. The 4th defendant being, a stranger-purchaser to the family, as pointed out earlier, the burden of proof lay upon him to substantiate the existence of a legal necessity. None of the documents under Ex.B1 to Ex.B7 point out to the existence of the debt. Ex.B1 is the document executed in favour of the plaintiff by one Karuppu Gounder. Ex.B2 is the sale deed executed in favour of the 1st defendant by one Periya Gounder. This document corresponds to Ex.A2; Ex.B3 to Ex.B7 are revenue records standing in the name of the 4th defendant. Ex.B3 to Ex.B7 are documents, which have come into existence, after the presentation of the plaint.

38.As stated earlier, the plaint was presented on 04.08.1978. It was taken on file before the Sub Judge at Coimbatore as O.S.No.653 of 1978. Ex.B3 to Ex.B7 cannot be relied upon as they are post litem motam documents. In any event, they are mere revenue records. I have discussed these documents in detail in order to point out that none of the documents, even faintly point out to the existence of the debts, exerting pressure on the property for the purpose of its alienation, or indicate the alienation was by the Kartha of the family, the 1st defendant, towards the discharge of his moral or legal obligations in that capacity.

39.The reliance by the Lower Appellate Court solely upon the written statement filed by the 1st defendant for the purpose of coming to the conclusion on the debts and the existence of legal necessity for non-suiting the plaintiff is opposed to the fundamental principle of law. If the defendants only proffer pleadings, without evidence, to counter the case of the plaintiff, the plaintiff is entitled to succeed, as the defendants have not met the burden of rebuttal. Pleadings are no proof. When the defendants have set up a claim of legal necessity and when the law demands the purchaser to demonstrate before the Court, the existence of the legal necessity, failure to discharge the said burden would constrain a Court to look against the defendants.

40.The error committed by the Lower Appellate Court was in relying upon the pleadings, which were not supported with evidence. The logical conclusion from the Lower Appellate Court’s judgment would be that, all that the defendants would have to do is to file a written statement, and need not enter the witness box to depose and subject themselves to oral evidence. That is certainly now the purport of either the Evidence Act or the Code of Civil Procedure. As much as the law declares that there cannot be any evidence without pleading, it is equally true that mere pleading alone is insufficient for the defendants to succeed or to displace the case of the plaintiff, when not bolstered by any oral or documentary evidence. Pleadings without evidence is akin to a wall without cement or steel. One nudge is sufficient to push the wall to the ground.

41.The plea that the amounts were spent by the first defendant towards renovation of the house in anticipation of the marriage expenses, without any evidence to that effect, cannot persuade a Court of law to conclude that there existed a legal necessity for alienation.

42.Insofar as the plea of Mr.Anwar Sadath and Mr.L.Mouli are concerned, it has to be addressed separately.

43.Mr.Anwar Sadath represents the purchasers of the property from the lis pendens purchaser, Devarajan - 5th respondent. The person, who purchases the property pendente lite, is bound by the decree that will be passed in the suit.

44.The 5th defendant, though served, with the summons in the suit, remained exparte in the Trial Court. It is the plea of Mr.Anwar Sadath that Devaraj, the 5th defendant, had passed away and his legal heirs were not impleaded and hence, the decree passed in the appeal is a nullity. This plea does not appeal to this Court. This is because, a lis pendens purchaser would be bound by the decree passed in the suit. He does not have a right to get himself impleaded. A transferee pendente lite is bound by the final decree in the suit, irrespective of whether he / she had notice of the pending litigation. Law does not declare the transfer as void, but only makes it subservient to the decree to be passed in the Court. It is for this reason that a lis pendens purchaser cannot take a plea of bonafide purchaser. Worse is the case of Mr.Anwar Sadath’s clients. They have purchased the property pending second appeal from the legal heirs of the 5th defendant. If the 5th defendant would be bound by the decree passed in the suit, the same logic would equally apply to a purchaser from the 5th defendant pending the second appeal.

45.Furthermore, as already stated earlier, the second appeal is confined only with respect to the second schedule of the suit. The decree, insofar as the suit items 3 & 4 are concerned, have not been appealed against by the defendants and have attained finality. In an appeal preferred by the plaintiff, with respect to suit item No.2, the defendants cannot plead that the Lower Appellate Court should not have passed a decree with respect to suit item Nos.3 & 4. They should have preferred an independent appeal challenging the decree passed by the Lower Appellate Court. That not having been done, this Court cannot entertain the plea of either Mr.L.Mouli or Mr.Anwar Sadath, that the decree passed by the Lower Appellate Court requires interference.

46.Mr.L.Mouli submitted that a compromise had been arrived at between the appellant and respondents 3, 10 to 12 pending the appeal. He requested this Court to record the same. Since this Court is concerned only with the second item of the suit property, it is always open to the parties to file a memo of compromise before the Trial Court during the final decree proceedings and get the same recorded, if it is otherwise valid in law.

47.In the light of the above discussion, the Second Appeal is allowed. The substantial questions of law 2 & 3 are answered in favour of the appellant. This Court holds that the defendants 1 & 4 have failed to prove the legal necessity for the purpose of alienation. The sale deed executed by the first defendant in favour of the 4th defendant is valid only with respect to the share of the first defendant. It will not bind the share of the other coparcenors. Respondents 13 to 18, the lis pendens purchasers, can obviously seek allotment of the share which their vendor would have possessed, in their favour in the final decree proceedings. As the substantial questions of law 2 & 3 are answered in favour of the plaintiff, there is no necessity to go into the first substantial question of law with regard to notice and reply notice.

48.The learned Trial Court Judge is reminded of the judgment of the Supreme Court in Kattukandi Edathil Krishnan and another Vs. Kattukandi Edathil Valsan and others, [(2022) SCC OnLine SC 737]. Being a duty and function of the Court, it shall immediately commence proceedings under Order XX Rule 18 of the Code of Civil Procedure, appoint an Advocate Commissioner and ensure that the litigation that has commenced in the year 1978 is concluded at the earliest. Considering the close relationship of the parties, this Court is not inclined to impost costs.