Bombay High Court
Shrikant S/O Trimbakrao Begade ... vs Maroti Govinda Dhiwar And Others on 31 March, 2017
Bench: B.P. Dharmadhikari
Judgment lpa28.91
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO. 28/1991
IN FIRST APPEAL No. 133/1976.
1. Avinash s/o Trimbakrao Begade,
aged about 41 years,
(Transposed as Respondent No.4)
2. Shrikant s/o Trimbakrao Begade,
Aged about 35 years,
3. Dhananjaya s/o Trimbakrao Begade,
Aged about 32 years,
4. Umakant s/o Trimbakrao Begade,
Aged about 31 years,
5. Shri Laxmikant s/o Trimbakrao Begade,
Aged about 27 years,
All residents of Ganeshpeth,
Nagpur, Tq. and District Nagpur. ....APPELLANTS.
VERSUS
1. Maroti s/o Govinda Dhiwar,
aged about 50 years
(Since Dead through L.Rs.)
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1(a). Kalavatibai Bewa Maroti Shivarkar,
Aged Major, (Dead).
1(b). Natthu Maroti Shivarkar,
Aged Major, (Dead through L.Rs.)
1(b)(1) Jyoti wd/o natthu Shivarkar,
Aged about 47 years.
1(b)(2). Prashant s/o Natthu Shivarkar,
Aged about 23 years
1(b)(1) and 1(b)(2) both residents of Bante
Layout, Gurudeo Nagar, Hudkeshwar Road
Near Hanuman Temple, Nagpur - 440024.
1(c). Raju Maroti Shivarkar,
Aged Major,
1(d). Bandu Maroti Shivarkar,
Aged Major.
1(c) and 1(d) both residents of Ayodhya nagar,
Near Water Tank, Nagpur.
2. Krishna s/o Govinda,
Aged about 44 years.
(dead through L.Rs.)
(1).Chinabai Bewa Krushna Shivarkar,
Aged about 60 years.
(Amended as per order dt. 28.01.2008)
(2).Baburao Krushna Shivarkar,
Aged about 35 years.
(amended as per order dated 28.01.2017)
(2)(1).Manisha Baburao Shivarkar,
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Aged about 57 years. Occ- Home Maker
(2)(2).Rajnikant Baburao Shivarkar,
Aged about 33 years. Occ-
(3).Anil Krushna Shivarkar,
Aged about 3 years.
(4).devanand Krushna Shivarkar,
Aged about 31 years.
(5).Ulhas Krushna Shivarkar,
Aged about 28years.
(6).Sudhir Krushna Shivarkar,
Aged about 26years.
All residents of Beri, Tah. Chimur,
district Chandrapur.
3. Smt. Bhagirathibai wd/o Shrawan Dhiwar,
Aged about 50 years,
(dead by L.Rs.)
(a).Vasant Shrawan Shivarkar,
Aged about 52 years, resident of
Neri, Tq. Chimur, District Chandrapur.
(b).Sau. Vanita Vasant Dighore,
Aged about 50 years, resident of
Khanji Ward, Warora, Tq. Warora,
District Chandrapur.
(LPA dismissed vide order dated 11.08.2015)
4. Avinash s/o Trimbakrao Begade,
Ganeshpeth, Nagpur.
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(LPA dismissed vide order dated 18.12.2007) .... RESPONDENTS
.
-----------------------------------
Mr. R.L. Khapre, Advocate for Appellants.
Mr. A. Parchure with Mr. D.J. Deshpande, Advocates for Respondents.
------------------------------------
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
Date of Reserving the Judgment : 13.02.2017
Date of Pronouncement : 31.03.2017
JUDGMENT. (Per B.P. Dharmadhikari, J)
1. Original plaintiffs challenge the judgment dated 15.7.1991
delivered by the learned Single Judge of this Court in First Appeal No.133 of
1976 setting aside the decree of Trial Court. Civil Judge, Senior Division,
Chandrapur, which had decreed their Special Civil Suit No.33 of 1971 on
30.6.1976 and declared that sale-deed dated 20.10.1951 executed by their
father (defendant no.5) - Trimbakrao in favour of the defendant nos. 1 and
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3, deceased Mahadeo and Shrawan was not binding on their 5/6 th share in
the joint Hindu family property. Said Suit stands dismissed because of the
impugned judgment and decree of the learned Single Judge.
2. Plaintiffs are the sons of original defendants no. 5 Trimbakrao
and no. 6 Shalinibai. Trimbakrao inherited about 350 acres of agricultural
lands and malgujari rights to few villages. He married Shalinibai in 1949.
Plaintiff no. 1 Avinash was born on 15.8.1950; Plaintiff no. 2 Shrikant on
6.5.1957; no. 3 Dhananjay on 15.8,1959; no.4 Umakant on 22.3.1960 and
plaintiff no. 5 Laxmikant on 1.11.1964. These sons of Trimbakrao filed Special
Civil Suit No. 29 of 1971 on 03.08.1971 for declaration that four sale-deeds
executed by Trimbakrao between 1952 to 1956 alienating about 47.24 acres
for consideration of Rs. 25,750/- were not binding on their 5/6 th share in the
ancestral property. That suit was decreed on 30.5.1971 and First Appeal No.
99/1976 against it by the purchasers (therein) came to be allowed on
20.11.1987. Here we are concerned with the adjudication in other Special
Civil Suit No. 33/1971. Plaintiffs assailed the sale dated 20.10.1951 at Ex. 44
of Kh. no. 10 ad-measuring 20.69 acres of mouza Kheda, Tah. Warora District
Chandrapur by Trimbakrao for Rs. 7241.50/- in favour of defendant nos.1 and
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3 and deceased Mahadeo and Shrawan. Civil Judge, Senior Division,
Chandrapur has decreed on 30.6.1976 their Special Civil Suit No. 33 of 1971
and declared that sale-dated dated 20.10.1951 was not binding on their 5/6 th
share. First Appeal No. 138 of 1976 filed by the purchasers therein has been
allowed by the learned Single Judge vide impugned judgment and decree
dated 15.7.1991. Both the judgments of this Court in respective first appeals
are delivered by the same learned Judge.
3. Vide judgment and decree dated 30.6.1976 in present Special
Civil Suit No.33 of 1971, the trial Court directed the purchasers-defendants to
restore possession of field khasara no. 10 to the plaintiffs and defendants have
been given liberty to file a suit for partition to get their share separated.
Plaintiffs accordingly, in execution, recovered it and today continue in
possession. Proceedings for restitution instituted by the purchasers after
judgment in First Appeal are stayed by this Court. Trimbakrao has expired in
1979.
4. We have heard Shri R.L. Khapre, learned Counsel for the
plaintiffs and Shri A.Parchure with Shri Deshpande, learned Counsel for the
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contesting defendants.
5. After pointing out the facts, Shri Khapre, learned Counsel
submits that - (I) Consideration in the appellate judgment is eclipsed by
earlier conclusions recorded by the learned Single Judge while deciding a
First Appeal filed by the other purchasers from Trimbakrao. Sale deeds there
were executed much later by Trimbakrao and surrounding circumstances then
and prevailing in 1951 could not have been same. (II) Earlier judgment is
delivered in First Appeal No. 99 of 1976 on 20.11.1987 by the same Hon'ble
Judge but between different parties and in relation to four sale deeds executed
between 1951 to 1956. Hence, the findings recorded therein do not operate as
res-judicata in present matter. (III) First Appeal No. 99 of 1976 considered
challenge to the judgment and decree dated 30.5.1976 delivered by the Trial
Court in Special Civil Suit No. 29 of 1971. (IV) Burden to prove existence of
the legal necessity warranting the sale of joint Hindu family property was on
the defendants and this settled law has been overlooked. (V) Diligent buyer
has to prove inquiry into factors conducive to the legal necessity before buying
the property and later evidence or conduct of vendor, has no bearing or
relevance. (VI) Sale of agricultural land on the ground that cultivation is not
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viable, can not be accepted as legal. (VII) Absence of any vice in vendor does
not establish the legal necessity. (VIII) Proper use of sale consideration also
does not help the defendants. (IX) Stipulation in sale deed about the existence
of legal necessity is irrelevant. (X) Vendor Trimbakrao and his wife Shalini
ought to have been impleaded as party respondents before the learned Single
Judge in FA. (XI) Sections 41 to 43 of the Evidence Act and various judgments
of the Hon'ble Apex Court and the High Courts are pressed into service by
him.
6. Shri Parchure, learned counsel for the respondents urges that -
(I) Special Civil Suit Nos. 29 of 1971 and 33 of 1971 were filed by the same
plaintiffs assailing the sale-deeds executed by same vendor Trimbakrao on
identical grounds. (II) Though the Trial Court has decided both the suits
separately, most of the evidence adduced in support is common. (III) The trial
Court did appreciate same evidence in both the matters and the first appellate
Court has also done same thing. (IV) Same Hon'ble Judge has decided both
the First Appeals. (V) Trimbakrao had colluded with his sons i.e., plaintiffs and
therefore did not contest the suits before the trial Court. In First Appeal, there
was no question of his share being prejudiced, and hence only plaintiffs with
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whom the lis existed, were joined as parties. (VI) Material on record shows a
decision of a prudent man to dispose of excess or unprofitable agricultural
lands. (VII) Trimbakrao ought to have entered the witness box to enable the
purchasers to cross examine him. (VIII) Judgment dated 20.11.1987 in First
Appeal No. 99 of 1976 has attained finality and an inconsistent view is now
not open. (IX) Neither Trimbakrao nor Shalinibai were necessary or proper
parties in First Appeal No. 133 of 1976.
7. We find that Special Civil Suit no. 33 of 1971 had proceeded
exparte against defendants no.5 and 6. Trial Court framed following 12 issues
and answered the same as under ---
"(1) Do the plaintiffs prove that they are
sons of defendant no.5 Trimbakrao
defendant no.6 Sou. Shalini Begade ? ... Proved.
(2) Do the plaintiffs prove that Plaintiffs
Avinash was born on 15.8.50 ? ... Proved.
(3) Do the plaintiffs prove that the
fields in suit are ancestral property
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of plaintiffs and defendant no.5
Trimbakrao ? ... Proved.
(4) Do the plaintiffs prove that they have
5/6th share in the suit fields ? ... Proved.
(5) Do the plaintiffs prove that Trimbakrao
as given to vice of gambling and for
that purpose sold away all the ancestral
property including suit fields ? ... Proved.
(6) Do the defendants 1 to 5 prove that the
sale deed dt. 29.10.51 was for legal necessity
such as expenses for marriage and
maintenance of members of family ? ... Not proved.
(7) Do the defendants prove that the above
sale was for the benefit of the family ? ... Not proved.
(8) Do the defendants prove that the
above sale was made by Trimbakrao
deft. no.5 for payment of his
antecedent debts. ? ... Not proved.
(9) If so, is the sale binding on plaintiffs ? ... Not proved.
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(10) Do the defendants prove that the
plaintiffs liable to pay proportionate
consideration to defendants before
setting aside sale for their share ? ... Not proved.
(11) Are plaintiffs entitled to possession
of suit field ? ... Proved.
(12) Relief and costs ? ... As per order."
8. Learned Single Judge in First Appeal No. 133 of 1976 did not
frame any points for determination and has mostly relied upon the findings
reached after appreciation of the material in his earlier judgment dated
20.11.1987. In that judgment also no such points appear to have been
formulated. Though this omission by itself is not fatal, here it has resulted in
adopting a wrong approach.
9. Following are the points which fall for our consideration in the
present matter. We record our answers thereto as mentioned against each
question for the reasons and due to discussion undertaken thereafter ---
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(A) Was there any inquiry into legal necessity requiring
Trimbakrao to execute impugned sale-deed dated
20.10.1951 at Ex. 44 disposing off kh. no. 10
ad-measuring 20.69 acres of mouza
Kheda, Tah. Warora Distr. Chandrapur, by the
defendant purchasers? ... No.
(B) Whether inquiry into said legal necessity
of Trimbakrao should be pleaded and it
had to be prior to obtaining the sale-deed
or then, evidence thereabout can be adduced .... Inquiry needed
for the first time in a suit filed by the to be before obtaining
coparcenor for setting aside such an alienation? the sale deed Exh.44.
Evidence about legal
necessity can not be
adduced without
proper pleadings.
(C) Whether a sale of agricultural land which
can not be cultivated profitably or to avoid
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ceiling/tenancy legislation is one for
legal necessity? .....No.
(D) On whom the burden lay to prove the
existence of the legal necessity and ...Here, the burden
whether, at this point of time, this always continued on
facet has any relevance? the respondent
purchasers and this
factor is relevant even
at the stage of
this LPA.
(E) Whether earlier judgment dated 20.11.1987
in First Appeal No. 99 of 1976 was decisive
in First Appeal No. 133 of 1976 ? ... No.
(F) Whether defendant no. 5 Trimbakrao or
defendant no. 6 Shalinibai were necessary
parties in First Appeal No. 133 of 1976? ... Yes.
REASONS.
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10. We wish to begin the consideration with the help of the
precedents. There is no debate before us that the impugned sale can be upheld
if it is for legal necessity and not otherwise. It is admitted position that burden
in this respect lies on the purchasers i.e., defendants who are the respondents
before us.
In AIR 1927 Privy Council 37 (Sri Krishn Das v. Nathu Ram)
,
Hon'ble 4 Judges of the Privi Council observe that the true question which falls
to be answered in such cases is whether the sale itself was one which was
justified by legal necessity. This is the point of view from which the matter
should be approached. It also lays down that where the sale has been held to
be justified, but there is no evidence as to the application of a portion of the
consideration by karta, a presumption arises that it has been expended for
proper purposes, and for the benefit of the family. Where the purchaser acts
in good faith and after due inquiry, and is able to show that the sale itself was
justified by legal necessity, he is under no obligation to enquire into the
application of any surplus and is, therefore, not bound to make repayment of
such surplus to the members of the family challenging the sale. In facts before
the Privy Council, the sale challenged was made after due inquiry as to the
legal necessity by the vendee and such necessity was proved by him to the
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extent of Rs. 3,000/- out of a total price of Rs. 3.500/- and sale was found to
be for an adequate consideration. Privi Council holds that the mere fact that
after a long interval of time the purchaser had not been able to establish how
the surplus of Rs. 500/- was applied is not a sufficient ground in law for
setting aside the sale.
11. While approving this exposition of law, the Hon'ble Apex Court in
Radhakrishnadas v. Kaluram, ((1963) 1 SCR 648 : AIR 1967 SC 574),
holds that what the alienee has to establish is the necessity for the
transaction. If he establishes that, then he cannot be expected to establish how
the consideration furnished by him was applied by the alienor. The reason for
this explained by the Hon'ble Apex Court and gathered by it from the other
case of the Privy Council is that the alienee can rarely have the means of
controlling and directing the actual application of the money paid or advanced
by him unless he enters into the management himself.
12. On burden of proof and value of recitals in a document of
transfer, the Hon'ble Apex Court in Rani v. Santa Bala Debnath, (1970) 3
SCC 722), observes ---
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"10. Legal necessity to support the sale must however be
established by the alienees. Sarala owned the land in dispute
as a limited owner. She was competent to dispose of the whole
estate in the property for legal necessity or benefit to the
estate. In adjudging whether the sale conveys the whole estate,
the actual pressure on the estate, the danger to be averted, and
the benefit to be conferred upon the estate in the particular
insistence must be considered. Legal necessity does not mean
actual compulsion: it means pressure upon the estate which in
law may be regarded as serious and sufficient. The onus of
proving legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made proper and
bona fide enquiries about the existence of the necessity and
that he did all that was reasonable to satisfy himself as to the
existence of the necessity.
11. Recitals in a deed of legal necessity do not by
themselves prove legal necessity. The recitals are, however,
admissible in evidence, their value varying according to the
circumstances in which the transaction was entered inter. The
recitals may be used to corroborate other evidence of the
existence of legal necessity. The weight to be attached to the
recitals varies according to the circumstances. Where the
evidence which could be brought before the Court and is within
the special knowledge of the person who seeks to set aside the
sale is withheld, such evidence being normally not available to
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the alienee, the recitals go to his aid with greater force and the
Court may be justified in appropriate cases in raising an
inference against the party seeking to set aside the sale on the
ground of absence of legal necessity wholly or partially, when
he withholds evidence in his possession."
13. Hon'ble Apex Court in Rangammal v. Kuppuswami, ((2011) 12
SCC 220 : (2012) 2 SCC (Civ) 448, at page 228) observes ---
"23.A plethora of commentaries emerging from series of
case laws on burden of proof, which are too numerous to cite,
lay down that when a person after attaining majority,
questions any sale of his property by his guardian during his
minority, the burden lies on the person who upholds/asserts
the purchase not only to show that the guardian had the
power to sell but further that the whole transaction was bona
fide. This was held in Roop Narain Singh v. Gugadhur
Pershad, as also in Anna Malay v. Na U Ma.
24. Thus when Respondent 1-plaintiff came up with
a case that the minor's share/appellant herein was sold for
legal necessity by her uncle Kumara Naicker, then it was
Respondent 1-plaintiff who should have discharged the
burden to prove that the minor/appellant's share had been
sold of by the de facto guardian Kumara Naicker without the
permission of the Court, could be held to be legal and valid so
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as to include the same in the partition suit between two
brothers, which has not been discharged at all by Respondent
1-plaintiff."
In paragraph 33, the Hon'ble Apex Court points out -
"33. Since the High Court has misplaced the burden of
proof, it clearly vitiated its own judgments as also of the
Courts below since it is well-established dictum of the Evidence
Act that misplacing burden of proof would vitiate the
judgment. It is also equally and undoubtedly true that the
burden of proof may not be of much consequence after both
the parties lay evidence, but while appreciating the question of
burden of proof, misplacing of burden of proof on a particular
party and recording findings in a particular way definitely
vitiates the judgment as it has happened in the instant matter.
This position stands reinforced by several authorities including
the one delivered in Koppula Koteshwara Rao v. Koppula
Hemantha Rao."
14. Judgment relied upon by Shri Parchure, learned counsel and
reported at (1997) 9 SCC 701 (Sunder Das and others .vrs. Gajananrao
and others) shows that alienator Karta joined the suit by his son filed after
eleven and half years to set aside the alienation on the ground of absence of
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legal necessity. In the mean while, purchaser had spent huge amount to effect
substantial construction. Recitals in sale deed recorded that it was for legal
necessity and seller a upper division clerk in civil Court was well aware of the
Court proceedings. Plaintiffs did not lead evidence to rebut the fact stated in
recital. Evidence on record demonstrated that house sold was dilapidated and
dead burden to family. Seller father (karta) was also in debts and not having
any vices or immoral conduct. Thus in these facts, suit was held to be
instituted to extort more money from the purchaser and dismissed.
15. In AIR 1960 MYS 231
-
(Helava vs. Sesigowda) , the Division
Bench holds that such a transfer may be justified when estate demands it or
the family interest so warrants, if it is for benefit of estate. It can be seen as an
act of prudent owner or a trustee of the property. An alienation of whole
property by father to shift to the place of his father-in-law for an inadequate
price was found vitiated in this judgment.
16. In AIR 1961 MYS 191-- (Chanbasayya Devagappa vs. Basayya)
,
learned Single Judge takes note of the stipulation in sale-deed that properties
sold were situated at some distance form village, difficult to manage, were not
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yielding income and own funds were spent in paying the revenue assessment.
It is held that these reasons do not constitute either legal necessity or show
that sale was for benefit to family.
17. In AIR 1959 KERALA 363 - (Maman and others vs. Ranga Iyer
and others), sale on the ground that there were no brahmin families in
neighbourhood was set aside as not for legal necessity. It was found that few
families continued there and even otherwise income generated could have
been collected by staying outside.
18. In AIR 1973 AP 214 (Dasari Jaychandra Prasda vs. Dasari
Venkata Subbaihah) the Division Bench, in para 13 after noticing that
burden lies on the alienees to show that they made bonafide enquiries and got
satisfied that properties were sold to settle down in other village, and that
from consideration paid by them, the vendor purchased properties in other
village. Several precedents including the Full Bench judgment of Allahabad
High Court in case of Jagat Narian vs. Mathura Das - (AIR 1928 ALL 454)
are cited with approval in this case. Judgment of Hon'ble Apex Court at AIR
1964 SC 1385 - (Balmukund vs. Kamalwati) shows that to qualify as a
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transaction for the benefit of family, it need not be defensive in character and
the Court must be satisfied that such a benefit to family was reasonably
expected when it was made. Madras view that sale of unproductive land at an
advantageous price could have been viewed as one for the benefit of family,
but, if such sale was only for adequate price, further proof of its utilization to
buy other properties for family was essential, also finds mention.
19. In AIR 1938 Patna 40- (Ganesh Prasad vs. Sheogobind Sahu),
the Division Bench holds that manager can not mortgage the property of a
minor with risk or liability of a new business which is not ancestral. It follows
AIR 1932 PC 182-- (The Benares Bank Ltd. vs. Hari Narian and Others)
which laid down this proposition.
20. The judgment dated 29.11.1987 delivered by learned Single Judge
and squarely used in impugned judgment by him, is in First Appeal No. 99 of
1976 which arose from Special Civil Suit No. 29 of 1971. Its perusal shows
that the plaintiffs had filed 25 suits of similar nature to set aside the
alienations made by their father Trimbakrao. When there were such large
number of transactions, certainly a more cautious and independent
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consideration of "legal necessity" forcing each transaction was must.
Purchasers from Trimbakrao were different and inquiry needed to be made by
each such purchaser before entering into the transaction.
21. In AIR (31) 1944 PRIVY COUNCIL 14 (Krishna Kant v Dhanu
Lal), it is stated that careful judgment impugned before privy council dealt
very fully with the consideration for the loans at the instance of the guardian
and also of a puisne mortgagee who also had put the mortgagees to strict
proof of their claim. The execution of the bonds was held to have been proved,
as also were the various payments, including the payment of Rs. 10,502/-
under the first mortgage by a cheque on the Benares Bank at Muzaffarpur. It
notes that the learned Subordinate Judge dealt separately with each of the
three loans, finding that the first was for an antecedent debt and for legal
necessity, that due inquiry as to legal necessity had been made as to the
second, and that the third was for legal necessity. In present matter, the
judgment dated 29.11.1987 in First Appeal No. 99 of 1976 from Special Civil
Suit No. 29 of 1971 is heavily drawn upon by the learned Single Judge in the
impugned judgment. Perusal of the earlier judgment dated 29.11.1987 shows
that these plaintiffs had filed 25 suits of similar nature to set aside various
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alienations made by their father Trimbakrao. When there were such a large
number of transactions, certainly a more cautious and independent
consideration of "legal necessity" faced by Trimbakrao before each transaction
was must. This transaction specific scrutiny is also mandatory here
considering the evidence on record about actual income of Trimbakrao, his
average expenditure and size of his family. There is nothing to show that all
of a sudden a huge liability was required to be shouldered by him. Learned
Single Judge has overlooked this facet totally. We have to look into said
judgment at some length.
22. Before proceeding further, it will be appropriate to briefly note
the judgment dated 29.11.1987 delivered by the same learned Single Judge in
First Appeal No. 99 of 1976. Findings in it are utilized by the said Single
Judge even while delivering the impugned judgment in First Appeal No. 138
of 1976 on 15.7.1991, thereby setting aside the decree of Civil Judge, Senior
Division, Chandrapur dated 30.6.1976. in Special Civil Suit No.33 of 1971
which had declared that sale-deed dated 20.10.1951 executed by plaintiffs'
father Trimbakrao (defendant no.5) in favour of the defendant nos 1 and 3,
deceased Mahadeo and Shrawan was bad.
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23. This judgment dated 29.11.1987 in First Appeal No. 99 of 1976
arose out of Special Civil Suit No. 29 of 1971 and its perusal shows that the
plaintiffs had filed 25 suits of similar nature to set aside the alienations made
by their father Trimbakrao. Special Civil Suit No. 29 of 1971 was in relation to
sale of agricultural lands ad-measuring 47.24 acres for Rs. 25,750/- vide the
sale-deeds executed between 1952 to 1956 at Ex. 89 to 92 in that suit. Thus,
entirely different lands, transactions, periods and purchasers were involved in
Special Civil Suit No. 29/1971. The respondents or purchasers in present
controversy were not parties to that suit or any transaction therein.
Defendants therein, in written statement pleaded that Trimbakrao needed
funds to meet the agricultural expenses, some lands were sold as the same
were inconvenient, Trimbakrao's stay at Nagpur was costly, sale was a better
option as agricultural lands would have been lost had they been leased out
and Trimbakrao had antecedent debts. Thus, this defence was not specific and
qua any particular sale-deed. It was general in nature and therefore vague.
Such plea itself proved absence of any previous inquiry by the purchasers. The
learned Single Judge has looked into the case of the plaintiffs that Trimbakrao
had vices and after appreciating evidence of PW-3 Navnitdas and PW-15
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Purushottam who deposed about the indulgence of Trimbakrao in satta
(gambling) business, has disbelieved them because they did not produce any
documentary evidence. Trial Court had accepted their evidence. It is not in
dispute that these witnesses were examined as common witnesses even in
present Special Civil Suit No. 33 of 1971. Witnesses were deposing almost
after 13 to 14 years and their inability to produce the documents or license or
to give telephone number or other minor details, by itself therefore can not be
sufficient to discredit them. Moreover, their deposition, if accepted, would
have shown only the wrong appropriation of sale consideration by
Trimbakrao. It did not / does not help the defendants in establishing that the
sales were for legal necessity or benefit of estate.
24. This judgment in First Appeal No. 99/1976 reveals that the
defendants there examined four witnesses. We do not see appreciation of
their evidence and entire judgment proceeds by putting the burden on
plaintiffs. In para 6, on the basis of pleadings a finding that Trimbakrao had
purchased in 1939 about 300 to 400 acres of agricultural lands apart from the
lands inherited by him and except for agriculture, he had no other source of
income, has also been reached. In next para, it is mentioned that he had
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adopted urbanized life style. In para 8. abolition of Malguzari rights in 1949 is
mentioned with finding that he lost the source of income. Finding of trial
Court that agricultural income of Trimbakrao was sufficient finds mention.
Evidence of PW-14 Tulshiram and PW-15 Kisan and PW-11 Hawaldar accepted
by the trial Court is commented thereafter, in later paragraphs as too general
and disbelieved as accounts were not submitted. Entire consideration is as if
the accounts were with those witnesses even after gap of several years and
burden was upon the plaintiffs to prove absence of legal necessity. We are
aware that said judgment is not in challenge before us. Argument of the
learned Counsel for plaintiffs that as no "notice to produce documents" was
given, no adverse inference should be drawn, has been also discarded.
Concept of the burden of proof and the stage or extent of inquiry envisaged is
also not delved into fully. Judgment of trial Court dated 30.5.1976 is found
vitiated with this reasoning. Trimbakrao purchased 300 to 400 acres of lands
form his cousin PW-8 Govinda Begade. Evidence of this cousin that he sold
those lands as he was in loss, to Trimbakrao, is used to conclude that after
purchase Trimbakrao was also in losses. The sale by Govinda is in 1939 and
sales with which the Court was concerned were between 1952 to 1956.
Learned Single Judge has commented on deposition of defendants' witnesses
Judgment lpa28.91
in paragraphs 13 to 15 of that judgment and that consideration does not show
reference to any inquiry into legal necessity felt by Trimbakrao or how the
sales were for benefit of estate. In fact, when the defence itself was not sale
specific, cogent and convincing evidence of attempts made by the purchasers
to find out either of the above needs justifying the sales ought to have been
adduced by those purchasers. Findings in paragraph no. 16 show that
Trimbakrao was not paying requisite attention to the agricultural operations
and was not serious about it. In paragraph 17, unsatisfactory financial
condition of Trimbakrao as evidenced by the letters written by him, need for
personal or family expenditure, Court work is appreciated with a comment
that trial Court has overlooked these letters or its impact. Agriculture did not
prove profitable for Trimbakrao is the inference reached in said paragraph. In
paragraphs thereafter legal arguments of plaintiffs find mention and in
paragraph 20, the learned Single Judge holds that purchaser defendants were
residents of the village and were aware of this state of affairs. Last sentence in
this paragraph reads-
" Thus enquiries which they have bonafidely made
discharge the obligation cast upon them by law".
Judgment lpa28.91
25. It is this finding and the plea of inquiry in that i.e. Special Civil
Suit No. 29 of 1971, which distinguishes earlier judgment dated 20.11.1987.
To us, the said judgment dated 20.11.1987 of the learned Single Judge
nowhere speaks of any such inquiry made by those purchasers before
obtaining the sale-deeds at Exs. 89 to 92. However, the law as laid down by
the Hon'ble Apex Court in Subhodkumar v. Bhagwant Namdeorao Mehetre,
(2007) 10 SCC 571) (at page 578), particularly in paragraph 12 has quoted
its earlier judgment in case of Sunil Kumar v. Ram Parkash - (1988) 2 SCC
77). Para relevant here is reproduced for convenience--
"Remedies against alienations
25[24]. Although the power of disposition of joint
family property has been conceded to the manager of
joint Hindu family for the reasons aforesaid, the law
raises no presumption as to the validity of his
transactions. His acts could be questioned in the Court
of law. The other members of the family have a right to
have the transaction declared void, if not justified.
When an alienation is challenged as being unjustified
or illegal it would be for the alienee to prove that there
was legal necessity in fact or that he made proper and
bona fide enquiry as to the existence of such necessity.
It would be for the alienee to prove that he did all that
Judgment lpa28.91
was reasonable to satisfy himself as to the existence of
such necessity. If the alienation is found to be
unjustified, then it would be declared void. Such
alienations would be void except to the extent of
manager's share in Madras, Bombay and Central
Provinces. The purchaser could get only the manager's
share. But in other provinces, the purchaser would not
get even that much. The entire alienation would be
void. [Mayne's Hindu Law, 11th Edn., Para 396.]"
26. We can therefore safely conclude that observations or the findings
in this judgment dated 20.11.1987, by itself, can not be made applicable in
present controversy where the purchasers and the transaction are different.
Challenge to the judgment and decree dated 30.6.1976 in Special Civil Suit
No. 33/1971 before the learned Single Judge and issue of legality of sale-
deed dated 20.10.1951 is circumscribed by the pleadings and evidence on
record. Principle that burden in such situation is upon the purchasers i.e., the
defendants in Special Civil Suit No. 33/76 needs to be kept in mind.
27. Fact that the property sold was/is ancestral property of a joint
Hindu family, that it has been sold by manager/karta Trimbakrao, that
Judgment lpa28.91
plaintiffs are the coparceners are /were never in dispute between the parties
in any litigation and in any Court. Still in written statements, the defendant
purchasers in Special Civil Suit No.33 of 1971 raise various evasive roving
pleas.
28. Plaint in Special Civil Suit No.33/1971 shows that it has been
specifically filed by the sons as coparceners pointing out joint undivided 5/6 th
share in ancestral joint family properties and grievance about the sale-deed
dated 29.10.1951 by their father Trimbakrao with specific assertion that it
was/is without any legal necessity and for inadequate consideration. Sale was
for immoral purposes of gambling. Their dates of birth are given to point out
that it is during minority of son Avinash, and the other sons are born
thereafter. Father Trimbakrao and mother Shalinibai are the defendant nos.5
and 6 therein.
29. Written Statement filed by the purchaser defendant nos. 1 to 4 at
Ex. 14 shows denial of relationship between plaintiffs and Trimbakrao, denial
of property being ancestral and denial of share of plaintiffs in that property.
Execution of sale-deed by father in their favour is admitted, but they have
Judgment lpa28.91
denied insufficiency of sale consideration. Thus, this inconsistent plea rules
out any inquiry into availability of legal necessity or otherwise before
obtaining a sale-deed. They also deny case of plaintiffs that Trimbakrao had
vice of gambling and sale was for immoral purpose. In para (8) in course of
further pleadings they state that Trimbakrao was residing at Nagpur since
1940 and needed huge sums for education, marriages and maintenance.
Hence, he sold the suit property to meet it. He could not profitably cultivate
the lands from Nagpur as he was living at Nagpur from the time of his mother.
The family would have lost the fields had the same been leased out, sale was
in better interest or benefit of family. It is also pleaded that Trimbakrao had to
pay ancestral debts and representing these reasons, he sold the suit property
to defendant nos. 1 to 3. These later pleas are inconsistent with the earlier
stand. Though mutually inconsistent defences are permissible, these
defendants during trial have attempted to establish need to sell the
properties.
30. Their defence shows that Trimbakrao was residing at Nagpur
since the time of his mother and was not in position to cultivate the lands
profitably. Evidence on records looked into earlier judgment of learned Single
Judgment lpa28.91
Judge dated 20.11.1987 does not support such losses. On the contrary, it
shows addition about 300 to 400 acres of land to family holding by him in
1939-40. Trimbakrao married Shalinibai in 1950 and there is no evidence of
any family or huge expenditure before said event. The defendants have not
brought on record any ancestral debt incurred before the subject sale or any
marriage or similar exigency in the family before that date i.e. before
29.10.1951. No defendant or defence witness has spoken of any exercise of
verification of any legal necessity and no such inquiries are brought on record
in this Special Civil Suit No. 33/1971. Letters written by Trimbakrao to his
staff by itself do not establish any legal necessity. Demand of money by
Trimbakrao does not tantamount to the legal necessity. As there is no plea of
any prior inquiry to ascertain such necessity, said material can not be taken
as evidence to prove the legal necessity. Alleged representation by
Trimbakrao as pleaded in paragraph 8(III) of Written Statement is not spoken
about on oath at all by any defendant. "Representation" if any by Trimbakrao
himself can not constitute as "an inquiry" by the defendant purchasers. On the
contrary, if it be true, it brings on record a need for proper verification. Thus,
this half-hearted contentions only prove lack of bonafides on their part while
obtaining the sale-deed.
Judgment lpa28.91
31. Hypothetically, only other option open to defendant purchasers
may be to plead that the sale was for the "benefit of family". If the defendants
purchased the suit field as the sale consideration was to be appreciated
towards the some need of family, pleading and evidence on that line was also
must. They do not point out any event, whether unforeseen or otherwise, to
sustain such a benefit to estate. In present matter, we notice that in First
Appeal this need-specific approach has been lost.
32. Perusal of judgment delivered by the Trial Court in Special Civil
Suit No. 33/1971 reveals that while answering issue no.3 regarding ancestral
nature of property, it has perused evidence and arrived at findings which are
not labeled as perverse either before the First Appellate Court or before this
Court. It is it's findings in paragraph no.18 against issue nos. 5 to 9, which are
significant in present appeal. Evidence of D.W. 3 - Krishna Govinda is
considered by it while evaluating Sale deed Exh.44 obtained by him from
Trimbakrao. This witness in unequivocal terms admitted in cross-examination
that he did not inquire about yield of the field either from Trimbakrao or his
servants. He also accepted that cultivation of said field by him was profitable.
Judgment lpa28.91
D.W. 2 - Maroti deposed that he cultivated that field for about two years just
prior to its purchase by defendant nos. 1 to 4. Defendants do not produce any
document on record to prove this cultivation by Maroti. D.W.3 Krishna did not
deposed about any such cultivation by Maroti. Evidence of D.W.1 - Akbarali,
D.W. 2 - Dago Pise, D.W.3 - Krishna Sonekar, is also considered in paragraph
no.20 onwards. Trial Court has mentioned that this evidence is contained in
record of Special Civil Suit No.17/1971.
33. D.W.1 Akbarali deposed about a Civil Suit filed against
Trimbakrao by his father and he also produced certified copy of final decree in
that suit. That decree was satisfied in 1964 by one Raghoba Chander and
others. Suit was filed by his father to recover loan advanced to Trimbakrao.
However, witness was not aware why loan was borrowed by Trimbakrao.
Dago Pise worked as Diwanji with Trimbakrao between 1948 to 1954. He
states that Trimbakrao got income of Rs. 2000/ to Rs.2500/ per annum. He
has given details thereof and mentions that Trimbakrao had about 425 acres
of land. He has also spoken about annual yield of Paddy at 375 khandis and
yield of 300 Khandis from dry crop land. Additionally Trimbakrao grew
Pulses, Gram and Chillies. He has spoken of rate of paddy, Jowar in 1943 and
Judgment lpa28.91
1954. His evidence reveals that Trimbakrao was also additionally growing
sugarcane in about 6 acres of land and got 12 to 15 Khandis of Gur (Jaggery).
Witness also states that rate of Jaggery was Rs.18 to Rs.20 per khandi. This
witness has given details of household expenses of Trimbakrao, when
Trimbakrao was residing at Neri. Yearly expenditure was Rs. 250-300. At
Nagpur yearly expenses were between Rs.500 to 700. He deposed that
Trimbakrao sold land as his expenses were more than his income. Discussion
above about total yield from various fields and rate thereof clearly falsifies this
version.
34. We find that in paragraph no.22 of the judgment indebtedness of
Trimbakrao to Narayan Kohli, Chitnavis, Soma Dhivar, Mahadeo Shenmare,
Hazi Abdulla and Naik, has been looked into. Trial Court finds that
Trimbakrao purchased property from P.W.8 Govindrao Begade which was
subject to encumbrances. This was way back in the year 1940. Evidence of
this witness show that during his service there was no marriage of any child of
Trimbakrao and Trimbakrao had no expenses on education of children. In
1943, Trimbakrao possessed more than 600 acres of land and in 1948 inspite
of various sales, Trimbakrao had more than 335 acres of land. Trimbakrao
Judgment lpa28.91
used to store grains for agricultural purposes and for household consumption.
1941 sales by Trimbakrao of Jaggery, Paddy, Jowar and Chillies and total
amount received therefrom, is spoken of by this witness. This witness has
deposed about sale of agricultural produce done by him alone. This witness
therefore shows that total crops worth more than Rs. 1300/ were sold in
1949. He also deposed about sales done by him in 1950 of various crops and
consideration received for those sales.
35. D.W. 3- Krishna Sonekar, is the witness who worked as Diwanji
between 1943 to 1963. His deposition and sales effected by him in 1949 are
also looked into by the trial Court in paragraph no.23.
36. Thereafter in paragraph no.24 Trial Court looks into evidence of
three witnesses examined by the plaintiffs to show that there was no legal
necessity warranting sales of land.
37. P.W.11 - Vasant Deulkar was diwanji of Trimbakrao between 1947
to 1958. He points out that all paddy lands in possession of Trimbakrao were
irrigated. He also points out that yield of paddy per year was between 900 to
Judgment lpa28.91
1000 khandis, while other grains from dry crop lands were 700 to 800
khandis. Trimbakrao was never required to borrow loan to carry cultivation or
to manage household affairs. P.W.14 - Tulshiram is a cultivator from one of
the village by name 'Usralemendha'. According to him, Trimbakrao possess 70
to 75 acres of paddy land and 20 to 25 acres of dry crop land in that village.
He got 400 to 500 khandis of paddy and 20 to 25 khandis of other grains. He
never borrowed loan. P.W. 15 Kisan worked as hawaldar of Trimbakrao from
1939 for a period of 16 to 17 years. His evidence also shows almost same
quantity of yield of paddy and other grains.
38. It is this evidence which has been evaluated in the light of Section
243 and 244 of the Hindu Law (Mulla). The learned Trial Court found that
burden to prove legal necessity lies on purchaser who has to inquire into that
necessity. It has looked into evidence of D.W. 2 Krishna and other witnesses
and it holds that none of them even talk of any inquiry or a proper or a
bonafide inquiry to find out the reasons compelling Trimbakrao to sell the suit
field. No reliable evidence is also produced by them to find existence of legal
necessity. It finds that cross-examination of defendant no.2 Krishna revealed
that he never made any inquiry about yield either from Trimbakrao or his
Judgment lpa28.91
servants. He did not peruse account books of Trimbakrao. His submission
that lands were sold as cultivation was not found profitable by Trimbakrao, is
not accepted and trial Court has noted that cultivation of those lands by
defendant nos. 1 to 4 was profitable. It has also found that evidence of D.W.2
Maroti was not reliable. Reason prompting Trimbakrao to sell given by
defendant no.2 Krishna does not find mention in Sale deed [Exh.44] or in
Written Statement [Exh.14]. No explanation has been furnished for not
mentioning the same either in the sale deed or for not pleading the same. The
reasons are therefore found to be not genuine. This discussion in paragraph
no.25 of the judgment of trial Court does not appear to be erroneous or
perverse.
39. In paragraph no.26, learned trial Court looks into indebtedness of
Trimbakrao to various creditors including Abdulla Veljibhai. It has looked into
the evidence of D.W.2 Dago Pise [Exh.248], P.W.8 Govinda [Exh.100]. D.W.2
deposed that Trimbakrao did not repay the loan of Haji Abdullah. The fields
purchased by Raghoba were therefore put to sale and Raghoba and others
were required to pay the decreetal amount. P.W.8 Govindrao had also taken
loan from Haji Abdullah. Indirabai, sister of Trimbakrao had purchased
Judgment lpa28.91
property from P.W.8 Govindrao and Haji Abdullah therefore, obtained
mortgage decree against Indirabai. After her death name of Trimbakrao was
mutated as owner. P.W.8- Govindrao deposed that he had executed sale deed
in favour of Trimbakrao, who had taken hawala of debt of Rs.4996/-. P.W.8
was indebted to Velijbhai. This sale also carried Hawala of debt of Narayan
Kohli of Usralamendha. Trial Court finds that evidence on record no where
shows that Trimbakrao himself borrowed any loan from Haji Abdullah.
Though properties subjected to encumbrances came in possession of
Trimbakrao, Trimbakrao did not satisfy the loan. There is no evidence of any
other loan borrowed by him from any other creditor. Thus, the trial Court in
paragraph no.26 has concluded that there is no evidence of any indebtedness
of Trimbakrao.
40. In this background it has looked into evidence of D.W. 2 Dago
Pise, particularly his cross-examination. In paragraph no.27 it has looked into
said cross-examination to note that only yield from various properties to
Trimbakrao. It has taken note of the fact that Trimbakrao got married in
1948 and first child was born to him in 1950. Till 1956 he had only one issue.
Till then he had no expenditure on education or marriage of his child.
Judgment lpa28.91
Evidence of D.W.13 - Krishna Sonekar, shows that in family of Trimbakrao
there were two sisters, mother, sister's daughter. He was not required to spend
anything on purchasing grains. He never suffered any loss in cultivation. In
view of these findings and other material, trial Court has concluded that there
was no legal necessity forcing Trimbakrao to sell ancestral property. It has
also concluded that defendant nos. 1 to 4 failed to prove that defendant no.5
Trimbakrao was indebted to Haji Abdullah Velji or any other creditor.
41. It then looks into the evidence tendered by plaintiffs to show that
Trimbakrao was indulging in satta gambling. Evidence of P.W.3- Nawnitdas,
P.W.4 - Awantikabai, P.W.8- Govindrao Begade, P.W.11 Vasant Deulkar, P.W.13 -
Purushottam and P.W.16 - Avinash is considered from paragraph no.29
onwards. We may mention here that after defendants failed to prove any
legal necessity, this exercise was wholly unnecessary. Whether Trimbakrao
had such vice or had no vices, that was not relevant at all for adjudication of
suit. In paragraph no.29, evidence of P.W.3 Nawneetdas giving details of
stakes of Trimbakrao in satta business are discussed. In paragraph no.30,
evidence of Avantikabai who happens to be daughter of sister of Trimbakrao,
is also looked into. She lived with Trimbakrao till 1964. She deposed that
Judgment lpa28.91
mother of Trimbakrao used to tell him not to sell lands when Nawneetdas
(P.W.3) used to visit Trimbakrao. P.W.8 Govindrao is cousin of Trimbakrao.
He also has deposed on same lines. His deposition reveals that mother and
sister of Trimbakrao used to ask him not to sell the lands. They were dead
when this deposition was being recorded. P.W.11 Vasant worked as diwanji of
Trimbakrao. Mother of Trimbakrao used to tell him that money received by
selling agricultural lands was spent by Trimbakrao in satta business. P.W. 16
- Avinash who happens to be plaintiff no.1 had no personal knowledge as he
was child.
42. Thus, after recording a finding in paragraph Nos. 29 and 30 that
the witness No. PW-3 and PW-13 had personal knowledge about satta
gambling by Trimbakrao, in paragraph 31, the Trial Court has looked into
circumstantial evidence to find out whether for his legitimate needs, it was
necessary for defendant No. 5 - Trimbakrao to incur such lands. We find it
convenient to reproduce paragraph 31 as contained in the judgment of the
trial Court.
"Apart from the aforesaid oral evidence, the plaintiffs, have
Judgment lpa28.91
placed on record the circumstantial evidence in support.
The evidence of plaintiffs witnesses P.W. 11 Vasant Deulkar
(Exh. 116), P.W. 14 Tulshiram (Ex. 130), P.W. 15 Kisan
(Exh. 131) coupled with the certified copies of settlement
khasras, jamabandis, re-numbering-parchas go to show
that Trimbakrao possessed more than 600 acres of
valuable lands. Evidence brought out in cross-examination
of defendants witnesses D.W. 2 Dago Pise (Ex. 248) D.W.3
Krishna Sonekar (Exh. 264) also prove the said fact. The
evidence brought out in cross-examination of D.W. 2 Dago
Pise go to show that prior to abolition of malguzari,
Trimbakrao's income from the cultivation was more than
Rs.36,000/-. In addition, he used to get income from
forest produce, sugar cane, other granis and commission
for collecting land revenues. After the malguzari abolition
in 1949, Trimbakrao's net income was more than
Rs.13,000/-. The evidence of D.W.3 Krishna Sonekar
shows that Trimbakrao's family consisted of 2 sisters,
mother and sister's daughter. Till 1958, Trimbakrao had
Judgment lpa28.91
only one son i.e. the plaintiffs no. 1 Avinash. Trimbakrao
family expenses for running the house hold affairs were
about Rs.500/- to Rs.700/- only. It is thus evident that
Trimbakrao possessed large property yielding good income.
His family was limited and family expenses were within
limits. The defendants 1 to 4 have not adduced any
evidence to show that Trimbakrao was indebted. In spite
of the said circumstances, Trimbakrao started selling lands
from 1943. The evidence of D.W.3 Krishna Sonekar (Exh.
264) shows that in 1955, Trimbakrao sold lands worth
Rs.11,150/-. In 1956 he sold land worth Rs.17,343.00.
In 1957, he sold lands worth Rs.7350/-. In 1960, he sold
land worth Rs.9815/- and in 1961 he sold lands worth
Rs.7205/-. It is seen that in addition to the income from
cultivation, Trimbakrao got the sale proceeds, Trimbakrao
was not required to perform any marriage or spend money
on education of his children yet, all the income from
cultivation as well as the sale proceeds were spent by him.
From the aforesaid evidence, it could be inferred that
Judgment lpa28.91
Trimbakrao spent all the money for satisfying the vice of
satta gambling. The said circumstantial evidence is very
strong and supports the oral evidence adduced by
plaintiffs. I am inclined to believe the plaintiffs evidence.
It could be said that the sale proceed received by sale of
lands, including the fields in suit were utilized by
Trimbakrao in satta gambling i.e. for immoral or
'Awewharik' purpose."
43. The trial Court has, therefore, concluded that the plaintiffs
evidence was acceptable and sale proceeds were utilized by Trimbakrao in
satta gabling i.e. for immoral or Awewharik purpose. This conclusion is,
therefore, not only on strength of depositions of witnesses who have deposed
in favour of the plaintiffs to bring on record the satta played by Trimbakrao
but also other material. It is cumulative effect of evaluation of both positive
and negative material brought on record and a finding reached on
preponderance of probabilities.
44. Here, it needs to be noted that how Trimbakrao utilized sale
Judgment lpa28.91
consideration of the land in question in present matter is not very decisive. He
may use it for Awewharik or some other purpose. When ancestral property
has been sold by Karta, otherwise than for legal necessity, sale cannot be
sustained. The burden was upon the defendants i.e. purchasers to establish
such legal need. They cannot succeed by demolishing the case of the plaintiff.
The plaintiffs have shown that when sales were effected, they were minor.
45. In this background, the First Appellate Court has to come in close
quarters of these findings. The consideration, therefore, has to be in the
backdrop of findings recorded by the trial Court. An earlier adjudication in
First Appeal No. 99 of 1976 vide judgment dated 20.11.1987, by itself, cannot
be used to discredit the judgment of the trial Court. The extent of lands
available with Trimbakrao, average yield therefrom, size of family, its needs,
all must find consideration. When the income generated is sufficient to
sustain the routine expenses, the roving attempt of the defendants to establish
legal necessity to justify the sale could not have succeeded.
46. In Special Civil Suit No. 33 of 1971, five sons of Trimbakrao came
together and impleaded purchasers as first four defendants. Trimbakrao
Judgment lpa28.91
himself was defendant No. 5 and his wife - Shalini was defendant No. 6.
There is no evidence of any daughter born to Trimbakrao. The trial Court has
granted a declaration that sale dated 20.11.1951 at Exh. 44 by Trimbakrao is
not binding on plaintiffs and share of plaintiffs is worked out at 5/6 th in the
joint family. The purchasers have been permitted to initiate proceedings to get
their share ascertained and demarcated. Trimbakrao had several lands apart
from suit land ad-measuring 20.69 Acres, Khasra No. 10, Mouza - Gaur-
kheda, Village Gaur-Kheda, District - Chandrapur. It is, therefore, obvious
that in an exercise of partition of such agricultural lands, it is not necessary
that subject land Khasra No. 10 should be given to share of Trimbakrao. Not
only this, it is settled position that whenever partition takes place between
sons and father, mother is also entitled to equal share. Thus, defendant No. 6
- Shalini is also entitled to have same share as that of Trimbakrao and
plaintiffs. Therefore, property needed to be divided into 7 equal shares. The
trial Court, therefore, could have declared that sale to the extent of share of
Trimbakrao i.e. 1/7th may be treated as valid. Computation of share of
Trimbakrao at 1/6th appears to be incorrect.
47. In First Appeal, purchasers - defendants did not join Trimbakrao
Judgment lpa28.91
or Shalini as parties. The wrong committed by the trial Court, therefore, has
not been corrected by the First Appellate Court. In a suit to be filed for
partition by the defendants, defendant No. 6 - mother may be required to be
given share out of 5/6th holding of the plaintiffs, thereby reducing their share
proportionately. This facet needed to be looked into by the appellate Court.
48. Thus, the Trial Court attempts to find out legal necessity to
support the impugned sale-deed and answers it in negative. As the
transactions were independent, it has delivered separate judgments. This need
of transaction specific approach was perhaps not urged before the Learned
Single judge and hence, evidence of the witnesses speaking generally though
irrelevant, came to be accepted. It can not help the purchasers in establishing
the legal necessity or family benefit to validate the sale-deed in their favour.
No particular legal necessity or any specific family benefit has been pleaded in
written statement by the present defendant respondents. We have already
noticed above that no special occasion in the family of Trimbakrao
necessitating such a sale has been brought on record. Thus, the general "non
need-specific" evidence, that too in the absence of pleading of any incident or
accident in the family, does not help the defendants in discharging the burden
Judgment lpa28.91
cast upon them by law.
49. In contrast, the impugned judgment in first appeal adopts all
together different perspective. It finds that there is no evidence of vices
indulged into by Trimbakrao. It notes that numerous suits filed by the
plaintiffs for setting aside alienations against several alienees, were
consolidated and plaintiffs led common evidence. It, in few earlier paragraphs
of the judgment, mentions arguments of the plaintiffs and precedents relied
upon by them. However, because of its earlier judgment in First Appeal No. 99
of 1976, it points out that Trimbakrao had adopted urbanized life style; was
living at Nagpur since 1940; in 1949, malgujari rights were abolished; in 1949
only Trimbakrao got married with Shalinibai, agricultural operations were
carried through employees, substantial lands were fallow, he suffered losses
and his income was less than expenditure. Financial condition was precarious
and holding non profitable lands was adverse to the interest of the joint
family. Hence, as a prudent manager and to save the property from being
wasted, Trimbakrao sold the lands. Failure of the plaintiffs to show gambling
habits of Trimbakrao recorded in earlier First Appeal No. 99 of 1976 is also
reiterated here. It observes that learned Counsel for the plaintiffs failed to
Judgment lpa28.91
persuade it to take a different view. It, therefore, goes by its earlier judgment
and holds the sale valid. In other words, sale transaction is accepted as one to
meet the legal necessity of family's routine expenses. In view of Order XII Rule
4 Civil Procedure Code, it finds no substance in objection to non-joinder of
Trimbakrao and Shalini in First Appeal before it. Need to implead Shalinibai
w/o Trimbakrao is also negated by not relying upon the judgment in case of
Parappa Hingappa Khaded vs. Mallappa Kallappa--(AIR 1954 Bombay
332), because she did not assail the adverse trial Court verdict. Thus, this
narrow and limited scrutiny in impugned appellate judgment is due to its
earlier judgment dated 20.11.1987 delivered in First Appeal No. 99 of 1976.
Perusal of earlier judgment shows that the evidence of yield annually of paddy,
other grains, of sugar cane etc., income generated therefrom is discarded as
account books are not produced by Trimbakrao. Obviously plaintiffs could not
have been penalized for such a failure on part of their father. In any case, the
burden to prove legal necessity was always on the purchaser defendants and
first appellate Court ignores their omission to plead any definite case in this
connection. It does not see that the defendants do not plead any inquiry by
them with Trimbakrao to warrant the sale, do not plead any particular event
like marriage etc. which needed such a huge expenditure. Finding of Trial
Judgment lpa28.91
Court on size of family of Trimbakrao, annual amount needed by family and
no apparent reason to support such huge sales also stand discarded because of
this erroneous approach. These findings of Trail Court militate with the effort
of the purchasers to substantiate alleged legal necessity. As the basic burden
was/is on the defendants to bring on record that need of family. Trial Court
has given these reasons as additional grounds to discredit them. Material on
record shows that at Nagpur yearly expenses incurred by Trimbakrao were
between Rs.500/ to 700/. In 1943, Trimbakrao possessed more than 600 acres
of land and in 1948 after various sales, Trimbakrao still had more than 335
acres of land. Thus when he was not married, he had already sold about 265
acres of lands. However, the appellate Court examines the controversy by
putting the burden on the plaintiffs. When there were 25 sale transactions by
Trimbakrao, why such a huge amount disproportionate to the size and
exceeding the need of his family, was being arranged by him, that too for a
long period, does not appear to have been entered the consideration by the
First Appellate Court. What we find is that a well reasoned judgment of the
Trail Court has been set aside by approaching it from a wrong perspective. We
find that the First Appellate Court has failed in its duty to come to the close
quarter of the reasoning employed by the trial Court while reversing the
Judgment lpa28.91
judgment of Trial Court.
50. Moreover, here the observations of the Privy Council in AIR (36)
1949 Privy Council 278 - (
Lakshmanna v. Venkateswarlu)
may also assume
importance. What is called the burden of proof on the pleadings should not be
confused with the burden of adducing evidence which is described as
"shifting". The burden of proof on the pleadings never shifts, it always remains
constant. The initial burden of proving a prima facie case in his favour is cast
on the plaintiff; when he gives such evidence as will support a prima facie
case, the onus shifts on to the defendant to adduce rebutting evidence to meet
the case made out by the plaintiff. As the case continues to develop, the onus
may shift back again to the plaintiff. It is not easy to decide at what particular
stage in the course of the evidence the onus shifts from one side to the other.
When after the entire evidence is adduced, the tribunal feels it cannot make
up its mind as to which of the versions is true, it will hold that the party on
whom the burden lies has not discharged the burden; but if it has on the
evidence no difficulty in arriving at a definite conclusion, then the burden of
proof on the pleadings recedes into the background. When we extend this
logic to present facts and to burden cast upon the defendant purchasers, it can
Judgment lpa28.91
not be said that they have discharged the burden expected of them. Their
evidence only exposes the roving efforts made by them and lack of bonafides.
This precedent is also used by the Hon'ble Apex Court in a judgment in case of
Murti Dusadhin v. Mohd. Mir Khan, ((1965) 1 SCR 20 : AIR 1965 SC 875) .
51. We may also point out the obligation of First Appellate Court
while writing a reversing judgment. The Hon'ble. Apex Court in 2001 (2)
Mh.L.J. 786- (Santosh Hazari vs. Purushottam Tiwari), in para 15 has
explained the duty of Appellate Court writing a judgment of reversal and
observed that Appellate Court must come in close quarters with the reasoning
assigned by trial Court and then assign its own reasons for arriving at a
different finding. Recently in Laliteshwar Prasad Singh vs. S.P. Srivastava--
(2017(2) SCC 415) this judgment is used while reiterating the law and
observed --
"13. The points which arise for determination by a Court
of first appeal must cover all important questions involved
in the case and they should not be general and vague.
Even though the appellate Court would be justified in
taking a different view on question of fact that should be
done after adverting to the reasons given by the trial judge
Judgment lpa28.91
in arriving at the finding in question. When appellate
Court agrees with the views of the trial Court on evidence,
it need not restate effect of evidence or reiterate reasons
given by trial Court; expression of general agreement with
reasons given by trial Court would ordinarily suffice.
However, when the first appellate Court reverses the
findings of the trial Court, it must record the findings in
clear terms explaining how the reasoning of the trial
Court is erroneous."
52. Discussion by us above shows the general approach adopted by
the First Appellate Court leading to a an error of not examining the "legal
necessity" qua the sale-deed in dispute. This error goes to the root of the
matter.
53. Accordingly, We record our findings on the points for
determination framed supra. The material on record does not show any
inquiry conducted by the respondents before us about the legal necessity felt
by Trimbakrao for the sale of kh. no. 10 ad-measuring 20.69 acres of mouza
Kheda, Tah. Warora Distr. Chandrapur on 20.10.1951 vide sale-deed at Ex.
44. Such an inquiry into alleged legal necessity should have been prior to the
obtaining the sale-deed Ex. 44 and evidence about it can not be adduced for
Judgment lpa28.91
the first time in a suit filed by the appellants' vide Special Civil Suit No.33 of
1971. It also follows that here the sale of kh. no. 10 is not proved to be of an
agricultural land which could not have been cultivated profitably or then to
avoid any legislation. In any case, such a sale in present facts can not be
construed as one for legal necessity. The burden to prove the existence of the
legal necessity always continued on the purchaser respondents, and even at
this point of time, this factor is very material. We also hold that the earlier
judgment dated 20.11.1987 delivered in First Appeal No. 99 of 1976 was not
decisive in First Appeal No. 133 of 1976. It is unnecessary to find out whether
it operates in rem or in personam. Lastly as the shares of defendant no. 5
Trimbakrao or defendant no. 6 Shalinibai were being dealt with, we find that
they were necessary parties in First Appeal No. 133 of 1976.
54. We, therefore, pass the following order--
(1) The judgment dated 15.7.1991 delivered by the
learned Single Judge in First Appeal No. 138 of
1976 is quashed and set aside. First Appeal No. 138
of 1976 is hereby dismissed.
Judgment lpa28.91
(2) The judgment and the decree of the Civil Judge,
Senior Division, Chandrapur, dated 30.6.1976 in
Special Civil Suit No. 33 of 1971 is restored.
(3) This Letters Patent Appeal is accordingly allowed
with costs payable by the defendants - purchasers to
plaintiffs all throughout the proceedings.
(4) Decree be drawn accordingly.
JUDGE JUDGE
Rgd/Dr
