Bombay High Court
Sou. Parvati vs Unknown on 11 November, 2013
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 328 OF 1994
WITH
SECOND APPEAL NO. 90 OF 2009
1. Sou. Parvati w/o Vishwanath Zangare
aged about 39 yrs., Occp. Household work &
agriculturist,
2. Dnyandeo Vishwanath Zangare,
aged about 19 yrs., Occp. Student,
3. Vandana d/o Vishwanath Zangare,
aged about 18 yrs., Occp. Student,
Appellant Nos. 1, 2 & 3 all
r/o Eklara, Tq. Chikhali,
District - Buldana. :: APPELLANTS
(Original plaintiffs)
.. Versus
..
Sk. Rasul s/o Sk. Abdul Musalman,
aged about 68 yrs., Occp. Fruit Seller,
R/o Eklara, Tq. Chikhali,
District - Buldana.
(Respondent No.2 Vishwanath s/o Balaji
Zangare - deleted as per Courts order
:: RESPONDENTS
dated 14/12/2009)
(Original defendants)
...................................................................................................................................
S/Shri R. L. Khapre and R. G. Kavimandan, Advocates for the appellants.
Shri O. W. Gupta, Advocate for respondent No.1.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATE OF RESERVING THE JUDGMENT : 09 SEPT., 2013.
DATE OF PRONOUNCING THE JUDGMENT: 11 NOV., 2013.
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J U D G M E N T
J U D G M E N T
1. These appeals are being disposed of by this common judgment
for the reasons that parties to both these appeals are same and the
challenges underlying the disputes involved in these appeals are in their
form and substance, similar.
2. The appellants and respondents in both the appeals are the
original plaintiffs and defendants in the two suits that were filed before and
decided by the Courts below. For the sake of convenience, the appellants
are being refererred to as plaintiffs and the respondents the defendants. It
may be mentioned here, respondent No.2 (defendant No.2) in each of the
appeals, having died during the pendency of the appeals, has been deleted
as party-respondent No.2 as per the orders passed by this Court.
3. Second appeal No. 328 of 1994 is directed against the judgment,
order and decree dated 30/6/1994 rendered in Regular Civil Appeal No. 171
of 1985 thereby reversing the judgment and decree of the Civil Judge, Junior
Division, Chikhali passed in Regular Civil Suit No. 232 of 1983 on
20/4/1985. Second appeal No. 90 of 2009 has been preferred against the
judgment, order and decree passed on 18/11/1997 in Regular Civil Appeal
No. 18 of 1994 by 2nd Additional District Judge, Buldana thereby confirming
the judgment, order and decree passed on 27/12/1993 by Civil Judge,
Junior Division, Chikhali in Regular Civil Suit No. 74 of 1986. In short, both
these appeals arise from the disputes as originally involved in Regular Civil
Suit Nos. 232 of 1983 and 74 of 1986 prosecuted in between the same
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parties. The challenges underlying the disputes in both the suits are
identical and the only difference in between these two suits is a difference
between dates of two sale transactions. In Regular Civil Suit No. 232 of
1983 sale deed executed by deceased defendant No.2 in favour of defendant
No.1 on 29/3/1982 has been challenged, whereas, in Regular Civil Suit No.
74 of 1986, sale deed executed by deceased defendant No.2 in favour of
defendant No.1 on 22/4/1983 has been challenged. Both these sale deeds
relate to portions of an agricultural land from out of land bearing gat No.95
ad-measuring 2.44 H.R. (6.02 acres) situated at village Eklara, tahsil
Chikhali, district Buldana.
4. It was the case of the plaintiffs that plaintiff No.1 Parvati and
plaintiffs No. 2 and 3 - Dnyandeo and Vandana, were the wife and children
of deceased defendant No.2. The suits were filed by plaintiff No.1 Parvati on
behalf of herself and as a guardian of plaintiffs No. 2 and 3, who were then
minors, against defendant No.1 Sk. Rasul and her own husband Vishwanath,
deceased defendant No.2. She had contended that plaintiffs and defendant
No.2 constituted a joint Hindu family governed by Mitakshara Law and that
the agricultural land bearing Gat No. 95 (new Gat No.2), field Survey No.76
ad-measuring 2.41 H.R. situated at village Eklara, was ancestral property,
which fell to the share of deceased defendant No.2 in an oral partition
amongst deceased defendant No.2, his father, Balaji, and his brothers
namely, Digambar and Jagannath, in the year 1974. She had further
submitted that since then, her husband-deceased defendant No.2, became
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the owner in possession of agricultural land bearing Gat No.95 ad-measuring
2.44 H.R. and plaintiff No.1 being wife and plaintiffs No. 2 and 3 being
children of defendant No.2 also acquired right, title and interest, as
members of the joint Hindu family headed by deceased defendant No.2.
According to plaintiff No.1, agricultural land bearing Gat No.95 being the
joint family property of the joint Hindu family comprising the plaintiffs and
defendant No.2, defendant No.2 was not competent to alienate the suit land
or any portion thereof in favour of defendant No.1. The plaintiffs submitted
that defendant No.2, by cultivating the said agricultural land, was deriving
sufficient income to maintain his family and also meet agricultural expenses
and that there was no legal necessity for him to alienate the said land or any
portion thereof. The plaintiffs submitted that since about year 1980,
deceased defendant No.2 fell into bad company, defendant No.1 Sk. Rasul
being one of them, and developed vice of drinking liquor. The plaintiffs
submitted that taking advantage of the drinking habit of deceased defendant
No.2, defendant No.1 allured defendant No.2 to transfer to him portions of
the agricultural land bearing gat No.95 on two occasions, firstly, in the year
1982 to the extent of 2.10 acres and secondly in the year 1983, to the extent
of 2.02 acres. The plaintiffs submitted that these alienations made by
deceased defendant No.2 in favour of defendant No.1 were not for meeting
any legal necessity but simply for fulfilling the thirst of defendant No.2 for
liquor. The plaintiffs also contended that even though, the sale deed dated
29/3/1982 executed in respect of the portion of the agricultural land from
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out of Gat No.95 to the extent of 2.10 acres (hereinafter referred to as 'the
suit land No.1') was apparently for a consideration of amount of Rs.4,500/-,
and sale deed executed on 22/4/1983 in respect of another portion of land
from out of Gat No.95 to the extent of 2.02 acres (hereinafter referred to as
'the suit land No.2') was apparently for a consideration of Rs.4,000/-, the
fact was that no consideration amounts whatsoever were paid by defendant
No.1 to defendant No.2. The plaintiffs also submitted that the market prices
of both the suit lands were much more than what was shown in the sale
deeds of 29/3/1982 and 22/4/1983, the suit lands being fertile. The
plaintiffs also challenged the said transfer of suit lands on some legal
grounds as well. However, those grounds being not relevant for the purpose
of deciding these appeals, no reference is being made to them. On these
grounds, it was urged that said sale deeds were illegal and not binding on
the plaintiffs. Accordingly, these suits, Regular Civil Suit No. 232 of 1983
and Regular Civil Suit No. 74 of 1986 for declaration, recovery of possession
and mesne profits came to be filed against the defendants.
5. Defendant No.1 resisted both the suits and denied that
defendant No.2 was in sound financial position and that the suit lands No.1
and No.2 were not sold for any legal necessity. He also denied the
contention that deceased defendant No.2 fell into bad company and that he
sold the suit lands No.1 and No.2 in order to beat his thirst for liquor. He
submitted that he did not take any undue advantage of the alleged vice of
deceased defendant No.2 and that the suit lands were sold to him by
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defendant No.2 to meet agricultural expenses and to repay the debt of a
society. He denied the allegation that the sale deeds of suit lands No.1 and
No.2 were illegal and void and not binding upon the plaintiffs. He submitted
that the sale deeds were valid and that he was a bona fide purchaser for
value of the suit lands No.1 and No.2 and, therefore, the sale deeds were
binding upon the plaintiffs and defendant No.2.
6. Defendant No.2 resisted Regular Civil Suit No.232 of 1983
contending that he had sold suit land No.1 for consideration of Rs.4,500/- to
defendant No.1 because he was in need of money to meet agricultural
expenses and also for repayment of loan which he had taken from Gramseva
Sahakari Society, Eklara. In short, he contended that the sale deed of suit
land No.1 was executed by him for legal necessity and for meeting his
necessary expenses. Thus, defendant No.2 supported the claim of defendant
No.1, denying all allegations of the plaintiffs adverse to him. But, he took a
different stand in Regular Civil Suit No. 74 of 1986. Unlike the first suit, he
admitted the entire claim of plaintiffs by filing his written statement vide
Exh.19.
7. So far as concerned the Regular Civil Suit No. 232 of 1983, the
learned trial Judge, by his judgment, order and decree dated 20/4/1985
substantially decreed the suit. It was declared that sale deed dated
29/3/1982 (Exh.82) of suit land No.1 was null and void and not binding on
the plaintiffs and that defendant No.2 had no right to sell the suit land No.1
to defendant No.1. Defendant No.1 was directed to handover possession of
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suit land No.1 to the plaintiffs within one month from the date of order.
Defendant No.1 was also restrained from interfering with and obstructing
the possession of the plaintiffs over suit land No.1. Damages or mesne
profits, however, were not granted.
8. In the first appeal preferred against this judgment and decree,
learned Additional District Judge, however, reversed some of the findings
recorded by the trial Court by his judgment, order and decree dated
30/6/1994. The most important of the findings recorded by him related to
the validity of the sale deed dated 29/3/1982. The first appellate Court
found that defendant No.1 proved that deceased defendant No.2 had sold
suit land No.1 to him for legal necessity and, therefore, the sale deed dated
29/3/1982 was valid and binding upon the plaintiffs. Accordingly, the
learned Additional District Judge dismissed the suit of the plaintiffs with
costs. The plaintiffs had also filed cross-objection against denial of mesne
profits to them, but they were dismissed with costs by the learned Additional
District Judge. Second Appeal No.328 of 1994 is preferred against this
judgment and decree.
9. So far as concerned the Regular Civil Suit No.74 of 1986, the
learned Civil Judge, Junior Division by his judgment, order and decree
delivered on 27/12/1993, found that defendant No.1 was a bona fide
purchaser of suit land No.2 for value and that the sale deed dated
22/4/1983 of suit land No.2 was proved by defendant No.1 to have been
executed for legal necessity of the joint family of plaintiffs and defendant
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No.2 and thus, dismissed the suit. In the first appeal that was preferred
against this judgment and decree, learned Additional District Judge,
Buldana, by his judgment, order and decree dated 18/11/1997, reversed the
finding of the trial Court on the point of legal necessity but, found that the
suit not having been filed for partition and separate possession, and having
been filed only for recovery of possession of the entire land, was not
maintainable. On this ground, learned Additional District Judge dismissed
the appeal of the plaintiffs. Second appeal No.90 of 2009 is directed against
this judgment and decree.
10. Second appeal No.328 of 1994 has been admitted by this Court
on 21/9/1995 on the following substantial questions of law:
(1) Whether the appellate Court was right in completely
ignoring the admissions of D.W.-Vishwanath regarding his
drunkenness?
(2) What is the effect of wrong placement of burden of
proof regarding legal necessity?
11. Second appeal No. 90 of 2009 was admitted by this Court by its
order passed on 24/7/2009 on the substantial questions No.1 and 2 of
appeal memo, which questions were reformulated by this Court on
04/9/2013 in such a way as to form one question as under.:
Whether the suit filed by the appellant claiming
reliefs of the declaration and possession without claiming
the reliefs of partition and separate possession in respect of
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the suit land, was maintainable?
12. I have heard Shri Kavimandan, learned Counsel for the
appellants/plaintiffs in Second Appeal No. 328 of 1994, Shri R. L. Khapre,
learned Counsel for the appellants/plaintiffs in Second Appeal No. 90 of
2009 and Shri O. W. Gupta, learned Counsel for respondent/defendant No.1
in both the appeals. I have also, with the assistance of learned Counsel for
both the sides, gone through the appeal memos and paper books of these
appeals and also the record of Regular Civil Suit No. 232 of 1983.
13. Learned Counsel for the appellants in Second Appeal No. 328 of
1994 has invited my attention to some of the admissions given by deceased
defendant No.2, Vishwanath (Exh.78), when he examined himself as a
witness on his behalf before the trial Court in Regular Civil Suit No. 232 of
1983. These admissions have appeared in cross-examination of deceased
defendant No.2 taken on behalf of the plaintiffs. Shri Kavimandan, learned
Counsel submits that these admissions, together with the surrounding facts
and circumstances of the case go to the root of the whole case and,
therefore, should not have been ignored by the first appellate Court. He
further submits that in fact, such being the importance of these admissions,
the trial Court in Regular Civil Suit No. 232 of 1983 has rightly given
importance due to them and accordingly drew right conclusion in holding
that there was no legal necessity for deceased defendant No.2 to alienate
suit land No.1 to defendant No.1. Shri Gupta, learned Counsel for
respondent No.1/defendant No.1 submits that in the examination-in-chief
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itself, deceased defendant No.2 has stated in clear words that he had sold
suit land No.1 to defendant No.1 for consideration of Rs.4,500/- for the
reason that he was in need of money for paying debts of Bank and,
therefore, the first appellate Court was right in holding that this evidence
together with the specific contentions taken in written statement filed by
deceased defendant No.2 sufficiently demonstrated the fact that there was
passing over of the consideration from defendant No.1 to defendant No.2
and that the sale of suit land No.1 was for meeting legal necessity of the
joint family of the plaintiffs and defendant No.2.
14. In this case the finding regarding absence of legal necessity for
execution of the sale deed in respect of suit land No.1 recorded by the trial
Court has been reversed by the first appellate Court, even though there were
on record some admissions of deceased defendant No.2. Therefore, it will
have to be seen whether or not this finding of the first appellate Court is
perverse and in ignorance of material evidence available on record.
15. It is well settled law that in second appeal, it is not permissible
to reverse a finding of fact simply because in the opinion of the second
appellate Court, another view is possible upon appreciation of evidence. It is
equally well settled that when the finding of fact recorded by any Court
below is shown to be perverse or against the material evidence on record or
is based upon non consideration of some material evidence or is the result of
consideration of inadmissible evidence, a substantial question of law arises
warranting it's appropriate address by High Court in second appeal under
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Section 100 of the Code of Civil Procedure, 1908. In this regard, I would
like to draw support from the law laid down by Hon'ble Supreme Court in
the cases of Gurvachan Kaur & others Vs. Salikram (dead) through lrs.
reported in (2010) 15 SCC 530 and Mohan Singh Vs. Late Amar Singh
through lrs. reported in (1998) 6 SCC 686.
16. In the instant case, it can be seen from perusal of record of case
that the finding of fact regarding absence of legal necessity returned by trial
Court is the result of elaborate consideration of the evidence brought on
record by both the sides and particularly the admissions given by deceased
defendant No.2 in his cross-examination taken on behalf of the plaintiffs.
While doing so, the trial judge had also considered the background facts and
circumstances of the case. However, this finding of the trial Court has been
reversed by the appellate Court and it appears that the appellate Court only
relied upon the statements of deceased defendant No.2 as appearing in his
examination-in-chief and also his specific contentions raised in his written
statement. The appellate Court did not consider the other attending facts
and circumstances of the case and also ignored the admissions given by
deceased defendant No.2 in his cross-examination taken on behalf of the
plaintiffs. The first appellate Court ought to have considered the statements
in cross-examination as well, for, when a Court considers oral evidence, it
must consider all the statements made in the examination-in-chief, cross-
examination and re-examination, if any, and not a few of them selectively.
It is a different matter that the Court accepts or rejects all or some of the
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statements as being reliable or unreliable, as the case may be, but must it
consider them all. The reason is that under Section 3, Indian Evidence Act,
1872, oral evidence means and includes all statements permitted or required
to be made before the Courts in relation to matters of fact under inquiry.
When it is said that Court is under a legal duty to consider oral evidence, it
must consider all statements in examination-in-chief as well as cross-
examination of the witness in view of well defined meaning of 'oral evidence'
under Section 3, Indian Evidence Act, 1872. This has not been done in this
case and, therefore, it must be said that the whole process of scrutiny of
evidence available on record and particularly the evidence of deceased
defendant No.2 undertaken by the first appellate Court, in the facts and
circumstances of this case, was flawed and also perverse.
17. No doubt, deceased defendant No.2 in his written statement had
contended that since he was in need of money for agricultural purposes and
also for repayment of loan, which he had taken from the Society, he had
sold suit land No.1 to defendant No.1 for consideration of Rs.4,500/- and
that he had also received the said consideration amount. In his deposition
before the trial Court vide Exh.78, deceased defendant No.2 initially also
stated that he had sold suit land No.1 for consideration of Rs.4,500/- to
defendant No.1 because he was in need of money for paying the debts of the
Bank. But, later on, when he was cross-examined thoroughly by learned
Counsel for the plaintiffs, he gave certain important admissions. He stated
that there was no necessity for him to sell suit land No.1 to defendant No.1
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as his financial position was good and that defendant No.1 got executed
from him the sale deed (Exh.82) when he was under the influence of liquor.
He further admitted that he used to consume every day liquor to the extent
of 100 ml.
18. Afore-stated admissions were required to be considered by both
the Courts below very minutely also for the reason, apart from legal reasons,
that it was the case of the plaintiffs that financial condition of the joint
family of plaintiffs and defendant No.2 was good and there being no legal
necessity existing for sale of suit land No.1, the transfer of suit land No.1 by
defendant No.2 to defendant No.1 was not legal and binding upon the
plaintiffs. The evidence led by the plaintiffs' side had also sufficiently
established the fact that defendant No.2 was a spoilt man, who wasted his
time, energy and property on liquor.
19. The trial Court with such nature of the case and evidence on
record indeed scrutinized the said admissions of deceased defendant No.2
thread-bare under a magnifying glass, when it found that these admissions
received much support from the other attending facts and circumstances of
the case. The trial Court particularly found that the sale deed of suit land
No.1 vide Exh.82 was a registered document and as such had its own
importance in the eyes of law. It found that nowhere in the body of the sale
deed at Exh.82 was there any mention about the fact that defendant No.2
had sold the suit land to defendant No.1 to meet any legal necessity of his
joint family or for making payment of outstanding loan amount of the
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society. There were no recitals to this effect in the sale deed and, therefore,
the afore stated admissions given by deceased defendant No.2 assumed
great importance.
20. Apart from the above referred facts, there have been other facts
and circumstances worth mentioning here. Suit land No.1 was transferred by
defendant No.2 to defendant No.1 in March, 1982 when, the evidence on
record, particularly that of P.W.-2 Pralhad (Exh.53) showed that no notice
demanding repayment of loan by the society had been issued to deceased
defendant No.2. P.W.-2 Pralhad was, at the relevant time, working as
Group Secretary of the Society of which deceased defendant No.2 was
member and he had taken from it a loan of Rs.1,000/-. A demand notice to
deceased defendant No.2 was issued by the Society on 16/12/1982,
whereas, the alienation took place on 29/3/1982. That means, at that time,
there was no dire need for defendant No.2 to sell suit land No.1 to anybody
much less the defendant No.1. Then, there was also evidence of plaintiffs'
witnesses, who in unison, had stated about drinking habit of deceased
defendant No.2 and absence of any legal necessity for him to sell suit land
No.1 to defendant No.1. These pieces of evidence together provided a
supporting background to the admissions given by deceased defendant No.2
in his evidence vide Exh.78 and which have been discussed earlier.
21. In the light of the facts and circumstances noted above and also
the law governing oral evidence, the admissions given by deceased
defendant No.2 ought to have been considered by the Courts below and one
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of them, the trial Courts did consider them, as already stated, and it held
that they together with other evidence available on record, proved the fact
that there was no legal necessity for defendant No.2 to sell suit land No.1 to
defendant No.1. But, the first appellate Court ignored these admissions
completely and held that except for words of plaintiffs' witnesses, there was
nothing on record to show that, in fact, defendant No.1 was enslaved by
bad habit of drinking. It held that merely on the words of interested
witnesses, it cannot be held that plaintiffs proved their case that defendant
No.2 sold his land to satisfy his craving for drining. These findings recorded
by the first appellate Court are obviously perverse, being in ignorance of
very important pieces of evidence or record. They are the result of non-
consideration of the overwhelming evidence available in favour of good
financial position of defendant No.2 and absence of legal necessity for
defendant No.2 to sell suit land No.1 at the relevant time and thus perverse,
warranting interference with them.
22. In view of the above discussion, I find that the appellate Court
was not right in completely ignoring the admissions given by defendant No.2
Vishwanath regarding his drunkenness. These admissions together with
other evidence available on record, sufficiently indicated that the sale deed
in question vide Exh.82 had been executed by deceased defendant No.2 in
favour of defendant No.1 only to quench his thirst for liquor and that there
was no legal necessity for him to alienate suit land No.1. The first
substantial question of law in Second Appeal No.328 of 1994 is, therefore,
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answered as in the negative.
23. There is also second substantial question of law in Second
Appeal No.328 of 1994. It relates to the effect of wrong placement of
burden of proof regarding legal necessity. However, it is seen from the
judgments of both the Courts below that burden of proof regarding legal
necessity has been placed by these Courts upon defendant No.1 and rightly
so. There is no wrong placement of burden of proof in this regard.
Therefore, I find that no substantial question of law on this aspect of the
case arises in Second Appeal No.328 of 1994. However, learned Counsel for
the appellants/plaintiffs has referred to me the case of Joseph John Peter
Sandy Vs. Veronica Thomas Rajkumar and another reported at AIR 2013
S.C. - 2028 in support of his argument that when execution of document is
denied, onus lies on propounder of the document. In this case, defendant
No.1 was the propounder of document, the sale deed (Exh.82), when he
pleaded that it was duly executed and for legal necessity. The burden
regarding proof of legal necessity, it is seen from the impugned judgments
and decrees, has been placed on defendant No.1 by both the Courts below,
and rightly so. Therefore, it must be stated that the principle of law laid
down in the cited case is already followed in the instant matter. Hence,
second substantial question of law is answered in terms that it does not arise
in Second Appeal No. 328 of 1994.
24. In Second Appeal No. 90 of 2009, the only substantial question
of law framed relates to maintainability of the suit bearing Regular Civil Suit
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No. 74 of 1986 filed by the appellants/plaintiffs against defendant No.1 and
deceased defendant No.2.
25. The trial Court, while dismissing Regular Civil Suit No. 74 of
1986, found that the sale deed executed on 22/4/1983 (Exh.41) in respect
of suit land No.2 was for legal necessity of joint Hindu family of plaintiffs
and defendant No.2 and that it was binding on the plaintiffs. It also
observed in para 23 of its judgment that "In (sic-when) the alienation made
by manager of the joint family is challenged by other coparcener, then in
such circumstances, as per the provision of article 268 of Hindu Law, a suit
for partition and separate possession is required to be filed". It then went on
to hold that since the suit was filed by the appellants/plaintiffs only for
declaration and possession, plaintiffs, "in the light of aforesaid provision of
Hindu Law" ought to have filed a suit for partition and separate possession.
26. The first appellate Court, however, did not agree with the
finding recorded by the trial Court as regards presence of legal necessity for
alienation of suit land No.2. The first appellate Court found that the
alienation of suit land No.2 was done during the pendency of the first suit
bearing Regular Civil Suit No. 232 of 1983 and, therefore, it was not
possible to accept the contention of defendant No.1 as probable that he
purchased suit land No.2 from defendant No.2 with consent of plaintiff
No.1. The first appellate Court also reasoned that defendant No.1 had not
pleaded in his written statement that defendant No.2 alienated suit land No.
2 in his favour for legal necessity, that at least he made enquiry about legal
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necessity of defendant No.2, and that the loan of Rs.1,000/- from the Society
had been obtained only once by defendant No.2 in the year 1981-82, and,
accordingly held that there was no substance in the theory propounded by
defendant No.1 that legal necessity did exist for defendant No.2 to alienate
the suit land No.2 to him. Thus, holding that the observations of the trial
Court in this regard being improper and unconvincing, the first appellate
Court found that defendant No.1 failed to prove that defendant No.2
alienated the suit land in his favour on 22/4/1983 for any legal necessity.
After finding this, the first appellate court went on to record another finding
that the sale deed (Exh.41) to the extent of shares of plaintiffs could be
declared as ineffective, provided, plaintiffs filed the suit for partition and
separate possession. The first appellate Court further found that since the
plaintiffs filed suit for recovery of possession of the entire land, the suit was
not maintainable and thus dismissed the appeal of the appellants/plaintiffs.
In effect, the first appellate Court confirmed the decree of dismissal of suit
passed by trial Court.
27. Both the Courts below while holding that the suit, filed in the
form in which it was filed by the appellants/plaintiffs, was not maintainable,
took recourse to a ground, as already stated, that the appellants/plaintiffs,
in addition to declaration that the sale deed in question was void, ought to
have filed the suit for partition and separate possession. The trial Court
made a reference to Article 268 of the Principles of Hindu Law. In fact,
Article 268 of the Principles of Hindu Law by Mulla (Twentieth Edition, Vol I
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- page 483) states that, "Where an alienation is made by a coparcener in
excess of his powers, it may be set aside to the extent mentioned in Articles 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." There
are some illustrations appearing in Article 268 and, in general, they indicate
that whenever karta or manager of a joint Hindu family alienates the joint
family property on the ground of legal necessity, the other coparceners or
members of a joint family covered by Mitakshara law, are entitled to
challenge the validity of the alienation on the ground that it was made
without legal necessity. Article 269 of the Principles of Hindu Law relates
to commencement of the period of limitation for setting aside alienation by
father of a joint family property, which is 12 years from the date when the
alienee takes possession of the property.
28. The Article 268 does not show that other members of joint
family seeking to challenge validity of alienation made by karta of joint
family on the ground of legal necessity, must file a civil suit for partition and
separate possession. In fact, all the members of a Hindu joint family have
an undivided interest in the joint family property and, therefore, when karta
of such a joint family alienates the entire joint family property or even a
portion thereof on the ground of legal necessity, which is not there, other
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coparceners or members of joint family can very well challenge such an
alienation entirely on the ground that there is no legal necessity for sale of
the joint family property. I am supported in my view by the law laid down
by Privy Council in the case of Lachhman Prasad & others Vs. Sarnam Singh
& others- A.I.R. 1917 Privy Council 41 wherein it held that alienation in
the nature of mortgage by the manager (father) neither for discharging
antecedent debt nor for family necessity is void in toto and cannot in the
absence of special circumstances bind over the share of the manager (father)
which he may get on partition. The Privy Council in laying down the
decision followed the general law stated in the case of Madhao Parshad Vs.
Mehrban Singh (1890) 18 Cal.157. Relevant observations of Privy Council
appearing on pages 41 and 42 are reproduced thus:
".....The General law is quite plainly laid down by Lord
Watson in delivering the judgment of this Board in the case
of Madho Parshad v. Mehrban Singh (2) where he says, at
page 196, this :-
"Any one of several members of a joint family is
entitled to require partition of ancestral property,
and his demand to that effect if it be not complied
with, can be enforced by legal process. So long as his
interest is indefinite, he is not in a position to
dispose of it at his own hand and for, his own
purposes; but as soon as partition is made, he
becomes the sole owner of his share, and has the
same powers of disposal as if it had been his
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acquired property. The actual partition is not in all
cases essential. An agreement by members of an
undivided family to hold the joint property
individually in definite shares, or the attachment of
a member's undivided share in execution of a decree
at the instance of his creditor, will be regarded as
sufficient to support the alienation of a member's
interest in the estate of a sale under the execution."
Therefore, other coparceners seeking to challenge alienation in
it's entirety on the ground of it being made without legal necessity need not
file a suit for partition and separate possession, such alienation being void
in toto. If any such suit for partition and separate possession was to be filed,
it should have been by defendant No.1 as he, being the purchaser of
coparcener's (deceased defendant No.2) undivided interest in joint family
property, was not entitled to possession of what he had purchased without
effecting of partition. Law in this regard is stated by Hon'ble Supreme Court
in the case of M.V.S. Manikayala Rao Vs. M. Narasimhaswami & others,
reported in AIR 1966 S.C. 470. In para 5, page 473, the Hon'ble Supreme
Court has observed thus :
"...Now, it is well settled that the purchaser of a coparcener's
undivided interest in joint family property is not entitled to
possession of what he has purchased. His only right is to sue
for partition of the property and ask for allotment to him of
what which on partition might be found to fall to the share
of the coparcener whose share he had purchased. His right
to possession "would date from the period when a specific
allotment was made in his favour": Sidheshwar Mukherjee
sa328.94+90.09.odt 22/26
v. Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at p.
188: (AIR 1953 SC 487 at p.491)..."
This case, in fact, has been referred to me by learned Counsel for
respondent No.1 (defendant No.1). But, it lends no support to the case of
defendant No.1, rather goes against him.
29. There is another reason why the suit in the present form without
claiming reliefs of partition and possession by other coparceners is
maintainable. It is the choice of the coparceners to decide as to when they
would like to put on end to their status of jointness and be separate in
property. In law, coparceners cannot be forced to file a suit for partition and
separate possession, though a purchaser of coparcener's undivided interest
can file a suit for partition and possession, and, that is also for a limited
purpose of putting into his possession that which on partition might be
found to fall to the share of the coparcener whose share he had purchased.
At this juncture, it would be very relevant to state that intention of plaintiffs
and deceased defendant No.2, as revealed by evidence on record, was also to
stay joint in property. So, in the absence of any law compelling them to file
a suit for partition and possession in such a case, the plaintiffs could not
have been asked to shed their intention to maintain jointness of the
property. Therefore, suit as filed in the present form was and is
maintainable.
30. The only bar to a suit, as the present one, can probably be said
to be arising under the proviso to Section 34 of the Specific Relief Act, 1963.
It lays down that in a suit filed for seeking declaration of a Court as to the
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legal character or to any right in any property, the Court shall not make any
such declaration where the plaintiff, being able to seek further relief than a
mere declaration of title, omits to do so. In other words, a suit that is filed
merely for declaration of title without claiming any further relief of
possession, when defendant is in possession, would not be maintainable as
there would be a bar upon power of the Court to only grant relief of
declaration of title. In the instant case, the suit as filed by the
appellants/plaintiffs was not only for declaration that the sale deed in
question was null and void and not binding on them, but also for a decree of
possession and permanent injunction. Therefore, even under Section 34 of
the Specific Relief Act, the suit filed by the appellants/plaintiffs was and is
maintainable.
31. In view of above discussion, the substantial question of law in
Second Appeal No. 90 of 2009 is answered as in the affirmative.
32. Having answered the substantial questions of law involved in
both the appeals in favour of the appellants, and having found that the suit
lands No. 1 and 2 were not alienated for any legal necessity by defendant
No.2 to defendant No.1, it would be proper for this Court to consider
granting of consequential reliefs to the appellants/plaintiffs. Respondent
No.1/defendant No.1 has not challenged the finding recorded by the first
appellate Court in Regular Civil Appeal No.18 of 1994 that the sale deed
dated 22/4/1983 vide Exh.41 was not executed by defendant No.2 in favour
of defendant No.1 for any legal necessity. If this is so, this sale deed too will
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not be binding upon the appellants/plaintiffs. There is no dispute about the
fact that defendant No.1 has been put in possession of the suit lands No. 1
and 2 in pursuance of the sale deeds dated 29/3/1982 (Exh.82) and
22/4/1983 (Exh.41). The possession of the suit lands alienated under these
sale deeds, therefore, would have to be restored to the appellants/plaintiffs.
At the same time, having considered the evidence brought on record by the
rival parties, I find that the appellants/plaintiffs would have to be directed to
refund the amounts of Rs.4,500/- and Rs.4,000/-, being considerations for
alienation of the suit lands No. 1 and 2 to defendant No.1 by defendant No.2
on equitable grounds. The evidence shows that deceased defendant No.2
had received the consideration amounts under both these sale deeds and at
that time he was the karta of joint family of the plaintiffs and defendant
No.2. So, after his death, it would fall upon his son and in son's absence
upon the surviving members of joint family to fulfill the obligations of karta
of the family, as the consideration amounts received by deceased defendant
No.2 would amount to debts due from karta. As regards mesne profits, it is
seen that the appellants/plaintiffs have not pressed for the same. Therefore,
it would not be appropriate to consider the grant of relief of mesne profits.
About the permanent injunction, I must say, since the possession is now
being directed to be delivered, question of grant of permanent injunction at
this stage would not arise.
33. In the circumstances of the case and having answered the
substantial questions of law involved in both these appeals in the above
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terms, both the appeals deserve to be allowed and they are allowed
accordingly.
(1) The judgment and decree passed by the first appellate
Court in Regular Civil Appeal No. 171 of 1985 is
hereby quashed and set aside and the judgment and
decree passed by the trial Court in Regular Civil Suit
No. 232 of 1983 is hereby confirmed except with
regard to the grant of permanent injunction.
(2) The judgments and decrees passed by the trial Court in
Regular Civil Suit No. 74 of 1986 and by the first
appellate Court in Regular Civil Appeal No. 18 of 1994
are hereby quashed and set aside.
(3) It is declared that the sale deeds (Exhs. 82 & 41) of
suit lands No. 1 and 2 are null and void, not binding
on the appellants/plaintiffs and respondent No.
1/defendant No.1 gets no title to the suit lands No. 1
and 2.
(4) It is directed that respondent No.1/defendant No.1
shall handover possession of the suit lands No. 1 and 2
to the appellants/plaintiffs within three months from
the date of this order, failing which the appellants/
plaintiffs would be at liberty to recover the possession
of the suit lands in accordance with law.
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(5) It is further directed that appellants/plaintiffs shall
refund consideration amounts of Rs.4,500/- and
Rs.4,000/- under sale deeds vide Exhs. 82 and 41 to
respondent No.1/defendant No.1 with interest at the
simple rate of 6% per annum from the date of
respective suits till the date of payment, at the time of
delivery of possession of suit lands No.1 and 2 or
within three months from the date of this order,
whichever is earlier.
(6) The costs shall follow the result.
(7) Decree be drawn up accordingly.
JUDGE
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