G. RAMASWAMY@ SURYAPRAKASA RAOversusLANKA SUBBARAO PATRUDU AND OTHERS.

                G. RAMASWAMY@ SURYAPRAKASA RAO                                     A
                               v.
               LANKA SUBBARAO PATRUDU AND OTHERS.

                                FEBRUARY 9, 1996

                K. RAMASWAMY AND G.B. PATIANAIK, JJ.]                              B

           Transfer of Prope1ty Act, 1882 : Section 122.

           Gift-Self acquired property-Gifted away to wife who in tum be-
     queathed it to children of her adopted son under registered will-Gift deed · C
     and will-Genuineness of-Proved-Held : Adopted son could not alienate
     the propeity.

           The father of the appellants was adopted and the adoptive father
     executed a deed of gift in favour of his second wife in respect of his
     properties and the said gift deed was acted upon. The said properties were D
     bequeathed by his wife under a registered will in favour of the appellants.

           The father of the appellants became wayward and squandered away
     the family properties and illegally executed sale deeds. Several properties
     were sold for no consideration at all or for utterly inadequate considera- E
     tion. The appellants filed a suit to set aside the sales effected in favour of
     the respondents by their father on the ground that he had no power of
     alienation and the sale was void on account of non-passing of considera-
     tion. The Trial Court found that the Gift deed and Will were genuine and
     duly acted upon, but decreed the suit in _part. On appeal, the High Court
     while not reversing the finding of the Trial Court, held that the appellants F
     could not challenge the alienation made by their father to the extent of his

--   share in the joint family property due to family necessity and that the sale
     was valid only so far as the 1/3rd share of the father was concerned but
     did not bind the appellants as far as their 2/3rd share was concerned.
     Aggrieved by the High Court's judgment the appellants had filed the G
     present ~ppeal.

           On behalf of the appellants it was contended that the properties
     having been gifted away by the original owner in favour of his wife who in
     turn had bequeathed the same by registered will in favour of the appellants
     and the Trial Court having found the gift deed and the will genuine and       H
                                         347
    348                    SUPREME COURT REPORTS                 [1996] 2 S.C.R.

A   valid and acted upon, the High Court could not have come to the con-
    clusion that the sale so far as the l/3rd share of the father was concerned
    was valid.

            Allowing the appeal, this Court

B         HELD : 1.1. The Trial Court had recorded the finding that the Gift
    deed in respect of the properties and the Will in favour of the appellants
    are genuine, valid and had been acted upon. The appellants' suit had been
    decreed so far as the said properties are concerned. The High Court while
    allowing the appeal, without reversing the findings of the Trial Court
C   proceeded on the assumption that the property being joint family property,
    the father could alienate the same for family necessity and thereby com-
    mitted the error. [352-B-D]

          1.2. In view of the finding of the Trial Court that the Gift Deed as ·
    well as the Will are genuine, valid and had been acted upon, the father
D   could not have alienated the said properties. Thus, the alienation could
    not be held to be valid even to the extent of 1/3rd as held by the High Court.
                                                                         [352-D-E]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3228 of
    1996.                                                       .
E
         From the Judgment and Order dated 22.7.91 of the Andhra Pradesh
    High Court in L.P.A. No. 275 of 1990.

            D. Prakash Reddy for Mrs. Rani Chhabra for the Appellants.
F           A.T.M. Sampath for the Respondents.

            The Judgment of the Court was delivered by                               -
            G.B. PAITANAIK; J. Leave granted.
G          This appeal by the plaintiffs is directed from the judgment of the
    Division Bench of the High Court of Andhra Pradesh dated 22.7.1991 in
    Letters Patent Appeal No. 275 of 1990 arising out of Original Suit No.
    187/76. Two items of properties are involved in this appeal namely Items
    6 and 7 of the Plaint Schedule. The plaintiffs filed a suit to set aside the
H   sales effected in favour of the defendants by their father on the ground that
        G.RAMASWAMYv. L.S.PATRUDU[G.B.PATIANAIK,J.]                         349

the father had no power of alienation and the sale is void on account of           A
non passing of consideration. It is the case of the plaintiffs that their grand
father Gulla Kondala Rao had extensive properties in Visakhapatnam and
he had acquired these properties out of his business of printing press. After
the death of the wife of Kondala Rao he married Narasamma but as he
did not beget any child, he adopted one Ramarao, in accordance with the            B
customs. He also executed an adoption deed on 13.11.1947. The said
Kondala Rao also executed a deed of Gift in Favour of his second wife
Narasamma in respect of some of his properties and the said gift was acted
upon. Item Nos. 6 and 7 of the Plaint Properties are those properties which
had been gifted by Kondalarao in favour of Narasamma. Said Narasamma
had bequeathed the properties under a regist~red will dated 3.3.1964 in            c
favour of plaintiffs - appellants. Ramarao the adopted son of Kondalarao
became way ward and squandered away the family properties and illegally
executed sale deed. Several properties were sold for no consideration at
all or for utterly inadequate consideration. The plaintiffs who were sons of
Ramrao filed a suit challenging the alienation made by their father on the         D
ground that the properties gifted by the original owner late Kondalarao in
favour of Narasamma, and those properties having been bequeathed by
Narasamma in favour of appellants, the same could not have been alienated
by the father of the plaintiffs treating the same to be a joint family property.
So far as other sale deeds are concerned with which we are not concerned           E
in this appeal the plaintiffs also challenged the same on the ground that no
consideration has passed therefor and the plaintiffs father recklessly ex-
ecuted those sale deeds without understanding the purport of such sales.
The plaintiffs also challenged the legality of sale in Execution Proceeding
No. 345 of 1965 arising out of S.C. No. 286 of 1954. We are, however, not
concerned with that transaction in this appeal. Defendants 3, 5, 7 to 10 and
                                                                                   F
12 resisted the suit by filing different written statements. Apart froni
denying the allegations with regard to non passing of consideration and the
reckless manner in. which the plaintiffs' father alleged to have sold the
properties, the gift deed executed by late Kondalarao in favour of
Narasamma in the year 1947 and the will executeci by late Narasamma in             G
the year 1964 was also not admitted and it was contended that they are not
genuine, valid and never acted upon. It was their further case that sale of
the joint family properties had been made by the father for legal necessity
and for benefit of the family and therefore the same is binding upon all
including the plaintiffs. On these pleadings the learned Trial Court framed        H
                                                                                       ~-
    350                   SUPREME COURT REPORTS                     [1996] 2 s~c.R.

A as many as 18 issues out of which issue no.1 was in relation to the validity
    of the gift deed of the year 1947 as well as the will of 1964. On a thorough
    discussion of the materials on record the Trial Court came to the con-
    clusion that the gift deed of 1947 was executed by late Kondalarao in favour
    of late Narasamma which is Exhibit A-3 and the will of 1964 executed by
    late Narasamma that is Exhibit A-11 are true, genuine and duly acted upon.
B
    On Issue No. 4 which was the issue on the question of consideration, the
    said issue had been framed against the 3rd defendant, on the basis of the
    pleadings of the 3rd defendant and since the suit was dismissed as against
    the said defendant, the Court did not give any finding thereon. On Issue
    No. 15 which was on the question as to whether plaintiffs' father could have
C   alienated the plaintiffs' share in the property, the learned Trial Judge came
    to the conclusion that the sales in favour of defendants 4 to 8 are not valid
    and binding on the plaintiffs and they are liable to be set aside and as
    such, defendants 11 and 12 cannot have any rights over the properties
    purchased by D-11 from D-4. It was further held that the court sale in
D   lavour of D-9 n; E.P. 345/65 in S.C. 246/54 is valid and binding on the
    plaintiff and therefore the sale in favour of D-10 by D-9 under the original
    of Ex. A-10 is valid and binding on the plaintiffs. In view of the finding in
    issue no. 15, the court did not think it necessary to decide the question of
    adequacy of consideration which was issue no. 16. Question whether late
E   Ramarao, the father of the plaintiffs was living recklessly and was adicted
    to the drinking habit, which was issue no. 11, the Trial Court answered in
    favour of the plaintiff and held that late Ramarao was adicted to the drink-
    ing habit and not leading a good life. With these findings the suit was decreed
    in part against defendant nos. 4, 6, to 8, 11, 12 and 25 to 31 but was dismissed
    as against defendant nos. 3, 9 and 13 to 21 who are legal representatives
F   of D-10. Against the aforesaid judgment of the learned Trial Court 3
    appeals were filed by different defendants being appeal nos. 699, 744 and
    1071 of 1981. Appeal No. 744 of 1981 was in relation to property described
    in Item Nos. 6 and 7 of the Plaint Schedule. The learned Single Judge who
    heard the appeals did not reverse the findings of the Trial Court on the
G   question of genuineness and validity of the gift deed as well as the will
    executed .by Narasamma in favour of the plaintiffs. The Single Judge also
    came to the conclusion that the sale deed executed by Ramarao in favour
    of defendants no. 7 and 8 was not to pay off any antecedant debts but on
    the basis of recital of the sale deed, came to the conclusion that the sale had
H   been effected for family purpose and as such is valid and binds not only in
         G. RAMASWAMYv. L.S. PATRUDU [G.B. PATIANAIK, J.]                  351

  respect of Ramarao's 1/3rd share but also in respect of the 2/3rd share A
  belonging to the plaintiffs 1 and 3. This conclusion was in respect of sale
  deed Ex.B-2. So far as other Sale deed Ex. B-2. so far as other sale deed
  Ex. B-4 is concerned the learned Single Judge held that it is valid only so
  far as the 1/3rd share of late Gulla Ramarao is concerned but it does not
  bind the plaintiffs so far as the 2/3rd share of the plaintiffs 1 and 3 is
                                                                               B
  concerned. Ultimately the learned Single Judge held that Ex.B-2, the sale
  deed dated 25.11.1969 executed in favour of the 8th defendant in respect
  of item No. 7 of Plaint A Schedule property is valid and binding on the
  plaintiffs and the sale deed Ex. B-4 dated 21.10.1969 executed in favour of
  7th defendant in respect of item no. 6 of plaint A schedule property are
  valid and binding only so far as the undivided 1/3rd share of the late Gulla C
  Ramarao is concerned and do not bind the plaintiffs so far as the remaining
  undivided 2/3rd share of plaintiffs 1 and 3 is concerned. With these
  conclusions the appeal (744/81) having been allowed in part, the plaintiffs
  preferred Letters Patent Appeal No. 275/90 in the High Court of Andhra
  Pradesh. Though appeals against the other judgments had also been D
  preferred but we are not concerned with the same in this appeal, since as
  has been said earlier the present appeal is directed against the judgment
  of the Division Bench in Letters Patent Appeal No. 275/90. The Division
' Bench without taking into consideration the gift deed of 1947 and will of
  1964 came to conclusion that the plaintiffs cannot challenge the alienation
  made by their father, to the extent of father's share in the joint family E
  property. With this conclusion the Letters Patent Appeal having been
  dismissed, the plaintiffs are in appeal before this Court.

       Sri. Prakash Reddy, the learned counsel appearing for the ap.pellants
 contended that the disputed properties namely Item Nos. 6 and 7 of the            F
 Plaint Schedule having been gifted away by the original owner late Kondala
 Rao in favour of Narasamma and said Narasamma having bequeathed the
 same by registered will of the year 1964 in favour of the plaintiffs and the
 Trial Court having found the gift deed and the will genuine and valid and
 acted upon, without inference with the said findings the learned Single
 Judge in appeal as well as the learned Division Bench could not have come         G
 to conclusion that the sale so far as the 1/3rd share of the father is
 concerned is valid. It is, therefore, contended that the learned Single Judge
 as well as the Division Bench of the High Court committed gross error of
 law in decreeing the plaintiffs' suit so far as the two items of properties are
 concerned only to the extent of 2/3rd and not in entirety.                        H
    352                   SUPREME COURT REPORTS                   [1996] 2 S.C.R.

A          Mr. Sampath, learned counsel appearing for the respondents on the
    other hand contended that such a contention had never been raised in the
    courts below and therefore the plaintiffs are not entitled to raise this plea
    in this court.

          We are unable to persuade ourselves to agree with the contentions
B raised by Mr. Sampath. In fact the plaintiffs had taken this plea in the
    Plaint itself and an issue has been struck to this effect which issue was
    answered by the Trial Court in favour of the plaintiffs. The Trial Court on
    consideration of the materials had recorded the finding that the Gift
    executed by late Kondala Rao in favour of Narasamma and the will
C   executed by Narasamma in favour of plaintiffs are genuine, valid and had
    been acted upon. The plaintiffs' suit had been decree so far as the said
    items of properties are concerned. The defendants has gone up in appeal
    and learned Single Judge while allowing the appeal, without reversing the
    findings _proceeded on the assumption that the property being joint family
    property, the father could alienate the same for family necessity and
D   thereby committed the error. The Division Bench in Letters Patent Appeal
    also committed the said mistake. In view of the findings of the Trial Judge
    that the Gift Deed as well as the will are genuine, valid and had been acted
    upon, and the disputed two items of properties namely items nos. 6 and 7
    of the· Plaint Schedule being included therein, the father could not have
E   alienated the same and therefore the alienation could not be held to be
    valid even to the extent of 1/3rd as held by the Division Bench in the Letters
    Patent Appeal under challenge. In the aforesaid premises the Judgment of
    the Division Bench in Letters Patent Appeal No. 275/90 as well as Judg-
    ment of the Single Judge in Appeal No. 744/81 are set aside and the
    Judgment of the Trail Judge so far as the properties in Item Nos. 6 and 7
F   of the Plaint Schedule are concerned is confirmed. The plaintiffs' suit in
    respect of these two items properties is decreed. This appeal is allowed
    but in the circumstances without any order as to costs.

    v.s.s.                                                      Appeal allowed.