Bombay High Court
Pandurang S/O Sambhaji Sanap & ... vs Sitaram S/O Manaji Gharjale & ... on 9 June, 2016
Bench: T.V. Nalawade
1 SA 18 of 1992
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.18 of 1992
1) Pandurang s/o Sambhaji Sanap,
Age 58 years,
Occupation : Agriculture & Service,
R/o Wagdara, Taluka Gangakhed.
2) Pandhari s/o Sambhaji Sanap,
Died through his legal
representatives.
2/1) Balaji s/o Pandhari Sanap,
Age 35 years,
Occupation: Agriculture,
R/o Wagdara,
Taluka Gangakhed,
District Parbhani.
2/2) Samindra Dattrao Mundhe,
Age 30 years,
Occupation: Housewife,
R/o Ghatdaithna,
Taluka Parali, District Beed.
2/3) Parwati Balaji Andhale,
Age 25 years,
Occupation: Housewife,
R/o Yalam, Taluka Parali,
District Beed.
3) Gayabai w/o Sambhaji Sanap,
Died her legal representatives
3/1) Pandurang s/o Sambhaji Sanap,
Age 48 years, R/o Gangakhed.
3/2) Bhagubai w/o. Govind Nagoraoji,
Age 68 years,
Occupation: Household,
R/o Dampuri, Taluka Gangakhed.
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2 SA 18 of 1992
3/3) Gayabai w/o Ramrao Phad,
Age 63 years,
Occupation: Household,
r/o Dampuri, Taluka Gangakhed.
3/4) Chandrakala w/o Nagorao Dahiphale,
Age 58 years,
Occupation: Household,
R/o Gangakhed.
3/5) Shivabai w/o. Nivrati Phad,
Age 46 years,
Occupation: Household,
R/o Gangakhed.
3/6) Pandhari s/o Sambhaji Sanap,
Age 53 years,
Occupation: Agriculture
R/o Gangakhed. .. Appellants.
Versus
1) Sitaram s/o Manaji Gharjale,
Age 50 years,
Occupation : Agriculture,
R/o Sirsam (Shelgaon)
Taluka Gangakhed.
2) Pandit s/o Sitaram Gharjale,
Age 20 years,
Occupation: Agriculture
R/o As above.
3) Tukaram s/o Dhanaji Sanap,
Died through legal
representatives
3/1) Udhav s/o Tukaram Sanap,
Age 35 years,
Occupation: Agriculture
R/o Wagdara, Taluka Gangakhed.
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3 SA 18 of 1992
3/2) Balaji s/o Tukaram,
Age 25 years,
Occupation: Agriculture
R/o Waghdhara.
3/3) Subhabai w/o Tukaram,
Age 35 years,
Occupation Household,
R/o As above.
3/4) Tulsabai w/o Panditrao Mundhe,
Age 20 years,
Occupation: Household,
R/o Arbhujawadi,
Taluka Gangakhed.
3/5) Padminibai w/o Raghunath Dhad,
Age 50 years,
Occupation Household,
R/o Wagdhara, Taluka Gangakhed.
4) Hanuman s/o Tukaram Sanap,
Age 12 years,
Minor under guardianship of
Subhabai w/o Tukaram Sanap,
Age 40 years, R/o As above. .. Respondents.
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Shri. A.P. Chaware, Advocate, for appellants.
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CORAM: T.V. NALAWADE, J.
DATE : 9th JUNE 2016.
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.114/1978 which was
4 SA 18 of 1992
pending in the Court of the Civil Judge, Junior Division,
Gangakhed, District Parbhani and against the judgment
and decree of Regular Civil Appeal No.228/1982 which
was pending in the Court of the Additional District Judge,
Parbhani. The suit filed by the present appellants for the
relief of partition and possession and also for declaration
is dismissed. Heard learned counsel for the appellant.
2) The suit was filed in respect of agricultural
lands like Survey Nos.363/3, 363/1, 364/2 and 364/10
situated at village Isad, Tahsil Gangakhed and also in
respect of one house property situated at village Wagdara,
Tahsil Gangakhed. Relief of declaration was claimed in
respect of sale deeds dated 6-3-1969, 17-5-1977 and 16-5-
1977 that the sale deeds are not binding on the plaintiffs.
3) Plaintiff Nos.1 and 2 are real brothers inter se
and plaintiff No.3 is their mother. Defendant No.1
Sambhaji was their father and he died during pendency of
the suit. It is the case of the plaintiffs that defendant No.1
was extravagant and when there was no legal necessity he
sold some suit property to defendant Nos.2 and 3 which is
5 SA 18 of 1992
transferred to defendant Nos.4 and 5 by defendant Nos.2
and 3 and some suit property was directly sold by
defendant No.1 to defendant No.4 and 5. It is contended
that the transaction was also sham and from the sale
proceeds the debts were not paid. Alternate contention
was made that under the sale deed of 1969 some amount
was taken from defendant No.2 but it was in fact
mortgage transaction and only Rs.500/- was paid though
more amount of consideration was shown. It is
alternatively contended that to save the property the
property was transferred by defendant Nos.2 and 3 at the
instance of the plaintiffs to defendant No.4 who is relative
of the plaintiffs. It is contended that defendant No.4 then
changed his mind and he wants to grab the property. It is
contended that the land Survey No.364 was shown to be
transferred in favour of defendant No.5 but it was also
mortgage transaction.
4) It is the case of the plaintiffs that the market
value of the property was much higher and this single
circumstance is sufficient to infer that the transactions
were not of sale but they were mortgage transaction. They
6 SA 18 of 1992
contended that they requested the defendants to return
the property but the defendants have refused to do so.
5) Defendant Nos.1 to 3 did not file written
statement. As the property was with defendant Nos.4 and
5 on the date of the suit, they filed written statement and
they contested the matter. They denied that the aforesaid
transactions were mortgage transactions and there was
no legal necessity. They contended that the defendant
No.1 was indebted and he was in need of money for
family expenses and also for repayment of loan taken from
Land Development Bank and cooperative society. It is
contended that the lands were sold by defendant No.1
after taking the consent of the plaintiff Nos.1 and 2 for
lawful consideration and the transactions are binding on
plaintiff Nos.1 and 2.
6) Issues were framed on the basis of the
aforesaid pleadings. The trial Court held that the
aforesaid transactions were sale transactions and the land
was sold by defendant No.1 for legal necessity of joint
Hindu family. The trial Court held that the transactions
7 SA 18 of 1992
were not mortgage transactions. Similar observations are
made by the first appellate Court for dismissing the
appeal. This Court admitted the appeal by holding that the
substantial questions of law as raised in Grounds IV and V
need to be decided. The grounds are as under :-
(IV) In fact, there is no admission in support of case of
defendant in the strict sense of this term, as is understood
within the meaning of sections 17 to 21 of the Indian Evidence
Act, 1893.
(V) Merely because the family of the plaintiffs and their
father required money, it does not mean that there was legal
necessity so pressing need to dispose of the valuable property
comprising of the suit land, on which alone the entire
sustenance of the family depended.
7) This Court has carefully gone through the
evidence given by the plaintiffs and also the defendant
Nos.4 and 5. It is true that the burden to prove that there
was legal necessity was on the defendants. The burden to
prove that it was mortgage transaction and it was not
absolute sale was on the plaintiffs.
8 SA 18 of 1992
8) During evidence, the plaintiff has given
admission that on the date of the transaction the plaintiffs
were living with defendant No.1 in joint Hindu family and
defendant No.1 was Karta of the joint Hindu family. The
plaintiff further admitted that their family was in need of
money and to satisfy the need of money the aforesaid
transactions were made. Copies of the sale deeds are
produced on the record and the plaintiff has given
admission in the cross-examination that on all the
registered documents plaintiff Nos.1 and 2 have signed
as witnesses. In the documents the vendor has mentioned
that for satisfying the family needs, the transaction was
made. In view of the contents of the documents and the
circumstance that plaintiff Nos.1 and 2 signed on those
document as witnesses, there was not much room to the
plaintiffs to prove that the transactions are not binding on
them.
9) One more vital admission is given by the
plaintiff. He has admitted that partition took place
between the plaintiffs Nos.1 and 2 on one hand and the
defendant No.1 and some landed property was given to
9 SA 18 of 1992
the plaintiffs in the partition. It is also admitted that
revenue record was created accordingly. No such mention
is made in the suit which was filed for partition.
10) The plaintiffs examined some witnesses to show
that the intention behind the transaction was to secure
the loan. The documents on the record are sale deeds and
the Courts below have considered the interpretation of
sections 91 and 92 of the Evidence Act. The oral evidence
was not found convincing by the Courts below and the
witnesses examined by the plaintiffs are not believed by
the Courts below.
11) The learned counsel for the appellant submitted
that the admission given by the plaintiff that for satisfying
the needs of the family, the transactions were made
cannot make much difference and it was necessary for the
defendants to prove that the necessity was pressing and
coercive steps were taken against them for recovery of
any debts from the joint family. This proposition is not
acceptable. The plaintiffs had virtually given consent to
the transactions by signing as witnesses on the documents
10 SA 18 of 1992
and the contents of documents mention that for satisfying
the family needs the transactions were made. Further
there are specific admissions that the loan was taken from
the society and the Land Development Bank and for
repayment of that loan the transaction was made. One
officer of the bank is examined to show that the loan of
Rs.2,500/- was taken for taking well and immediately after
one transaction the repayment of some amount of that
loan was made. This evidence along with the admissions
given by the plaintiffs is more than sufficient to hold that
for legal necessity the transactions were made. The
plaintiffs failed miserably to prove that the transactions
were mortgage transactions and the legal necessity is
proved by the defendants.
12) So, the aforesaid points are answered against
the appellants and the appeal is dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
