Vikrant Vilasrao Patil vs Uttam Nivruti Landge And Others
2021 Latest Caselaw 16840 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                  SECOND APPEAL NO.248 OF 1993
                              WITH
                CIVIL APPLICATION NO.2312 OF 1993
                         IN SA/248/1993

           Vikrant s/o Vilasrao Patil (Died)
           Through Legal Heirs (Orig.Deft.No.4)

           1)       Vidyulata w/o Vikrant Patil,
                    Age 37 years, Occupation Household
                    and Agri., R/o 353/2, Waykule Plot,
                    Uplai Road, Ganesh Temple
                    Tq. Barshi Dist.Solapur.

           2)       Sai d/o Vikrant Patil,
                    Age 16 years, Occupation Education,
                    Minor Through Under Guardian
                    Vidyulata w/o Vikrant Patil,
                    Age 37 years, Occupation Household
                    and Agri., R/o 353/2, Waykule Plot,
                    Uplai Road, Ganesh Temple
                    Tq. Barshi Dist.Solapur.          ...Appellants

                    VERSUS

           1)       Uttam s/o Nivrati Langade,
                    Age 37 years, Occupation Agriculture,
                    R/o Gour Tq. Kallam Dist.Osmanabad.
                    (Original Plaintiff)

           2)       Nivrati s/o Genba Langade,
                    Age 75 years, Occupation Agriculture,
                    R/o Gour Tq. Kallam Dist.Osmanabad.
                    (Original defendant No.1)

           3)       Subabai w/o Nivarti Langade,
                    Age 70 years, Occupation Labourer,
                    R/o Gour Tq. Kallam Dist.Osmanabad.
                    (Original defendant No.2)




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                                               2                    SA 248-1993, CA 2312-1993




                  4)         Govind s/o Nivrati Langade,
                             Age 50 years, Occupation Service,
                             No.8364525 Wo II G.No.Langade
                             2 Central base Post of C/o 99 A.P.O.
                             (Original defendant No.3)          ...Respondents

                                       .....
                  Advocate for Appellant            : Mr. V. D. Salunke i/b
                                                      Mr. R. A. Deshmukh

                  Advocate for Respondent No.1 : Mr. S. S. Choudhary

                  Advocate for Respondent No.4 : Mr. P. D. Suryawanshi
                                      .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.

                                    Date of Reserving the Judgment                     :
                                    08-09-2021

                                    Date of Pronouncing the Judgment :
                                    04-12-2021

JUDGMENT :

1. Present appeal has been filed by the original defendant No.4

challenging the concurrent Judgment and decree. Present

respondent No.1 is the original plaintiff who had filed Regular Civil

Suit No.106 of 1077 before Civil Judge, Junior Division, Kallam

District Osmanabad, for declaration, partition and possession. The

said suit came to be decreed on 31-01-1983. It was declared that

the plaintiff has 1/4th share in the suit lands and the mango trees.

It was the further decree that the sale deed effected by defendant

3 SA 248-1993, CA 2312-1993

No.1 on 11-05-1976 in favour of defendant No.4 stood cancelled to

the extent of 1/4th share of the plaintiff. The separation of the

share was directed to be effected through Collector. The said

Judgment and decree passed by the Trial Court was challenged by

defendant No.4/present appellant by filing Regular Civil Appeal

No.105 of 1983 and the said appeal came to be dismissed on 28-04-

1993 by learned Additional District Judge, Osmanabad. Hence, this

second appeal.

2. This Court admitted the second appeal on 11-09-2006 by

framing following substantial question of law :-

"Whether the present appellant has proved that the property was sold to him for legal necessity."

3. Heard learned Advocate Mr. V. D. Salunke instructed by Mr. R.

A. Deshmukh for appellants, learned Advocate Mr. S. S. Choudhary

for respondent No.1 and learned Advocate Mr. P. D. Suryawanshi for

respondent No.4.

4. It has been vehemently submitted on behalf of the appellants

that both the Courts below have not appreciated the evidence

property and failed to consider the contents of the documents which

itself indicate the legal necessity. It is not in dispute that defendant

4 SA 248-1993, CA 2312-1993

No.1 who is the father of plaintiff executed sale deed on 11-05-1976

in respect of land Gut Nos.714 and 719 in favour of defendant No.4.

Though there are other two suit lands, but we are not concerned

with the same as defendant No.4/present appellant was concerned

only with the above said two lands which were sold to him. As per

the plaintiff, defendant No.1 was addicted to vices and he had

unauthorizedly and illegally sold above said two suit lands without

any legal necessity to defendant No.4 and, therefore, the said sale

deed is not binding on him. It was stated that the family neither was

indebted to anybody nor loan was raised requiring any amount for

mitigating the said loan. It was also pleaded that the actual value of

the suit lands are more than it has been shown in the sale deed, but

the plaintiff had not adduced any proper evidence to show that what

was the real value of the suit land. Some statement made by the

witnesses that irrigated land in their village would fetch a certain

amount, will not amount to evidence in respect of inadequacy of

consideration. In fact, the suit was filed in collusion between the

plaintiff and defendants No.1 to 3 to give a go bye to rights derived

by defendant No.4. This can be seen from the fact that intentionally

defendants No.1 to 3 remained absent and the suit proceeded ex-

parte against them. This shows that they had the collusive interest

5 SA 248-1993, CA 2312-1993

with plaintiff as against defendant No.4. When it was contended by

the plaintiff that the suit lands were not sold to defendant No.4 for

real necessity; defendant No.4 has led evidence to support the

contention that there was in fact legal necessity. Payment of

consideration has not been challenged by the father defendant No.1.

Plaintiff cannot say that father has not received consideration

because at this stage he is the rival to his father. Even the sale

deeds have not been challenged on the ground of fraud etc. by the

executant i.e. the father defendant No.1. Defendant No.4 examined

two more witnesses out of which one was the attesting witness and

another is the person who had given hand loan to defendant No.1.

Both of them have supported the story put forward by defendant

No.4. Further, in his cross-examination, plaintiff himself and

plaintiff's witnesses have admitted that a certain amount of the loan

was taken by defendant No.1 from land mortgaged by. It was for

the plaintiff to prove then that the said amount was repaid by

defendant No.1. Both the Courts below have wrongly held that

consideration that was paid was inadequate and defendant No.4 has

not produced any evidence on record to prove that the loan was

taken by defendant No.1 and he wanted to repay the said amount.

It was not at all necessary for defendant No.4 to prove that the

6 SA 248-1993, CA 2312-1993

consideration was utilized by defendant No.1 in mitigating loan.

Reliance has been laced on the decision in Marotirao and others vs.

Tulsidas and others WITH Marotirao and others vs. Tulsidas and

others, [1992 MCR - 216], wherein this Court has held thus :-

"It is now fairly established that an alienation of the family property at the hands of the Karta of the Hindu joint family on the ground of want of legal necessity, the alienee is required to establish the legal necessity for the transaction, it is not necessary for him to show every bit of the consideration which he advanced was actually applied for meeting the family necessity, on the ground that the alienee can rearly have the means of controlling and directing the actual application."

Therefore, it can be said that sufficient evidence was led by

defendant No.4 to prove that there was legal necessity for the

defendant No.1 to sell the land and the said evidence has not been

discarded by defendant No.1. Then plaintiff who is his son cannot

challenge the transaction as the said transaction was made by

defendant No.1 in the capacity as Karta of the joint family. The

Judgment and decree passed by both the Courts below deserve to

be set aside.

5. Per contra, the learned Advocate appearing for respondent

7 SA 248-1993, CA 2312-1993

No.1 submitted that both the Courts below have correctly

appreciated the evidence. Both the lands i.e. near about 6 Acres

land was purchased by plaintiff for a consideration of Rs.7000/- only.

DW.1 Shantabai had claimed ignorance as to whether the rate that

was then prevalent in the village was Rs.15000/- to Rs.20000/- per

Acres. She admitted that the suit land is irrigated and falls in the

catchment area of Terna Sugar factory. The evidence of the witness

of the defendant DW Ramling would show that irrigated land in their

village could have fetched amount of Rs.10000/- to Rs.20000/- per

Acre. The inadequacy of the consideration has been taken as one of

the circumstances to show that the circumstances which were going

against defendant No.1, were encashed by the plaintiff. Evidence of

witness No.3 for defendant No.4 cannot be considered at all who

alleges that he had extended amount to defendant No.1. In his

cross-examination he has admitted that he used to give money to

various persons on various dates and certain was due from

defendant No.1 to him, however, except his bare statement there is

nothing on record to show that any such amount was due from

defendant No.1 to him. When the burden to prove that there was

legal necessity for defendant No.1 to sell the land was on the

shoulders of defendant No.4-the purchaser; he cannot insist that

8 SA 248-1993, CA 2312-1993

there should be evidence in a particular direction. When both the

Courts have taken consistent view, this Court need not reappreciate

the evidence in deep.

6. At the outset, it is to be noted that there is no dispute that

defendant No.1 was the original owner of in all four lands which he

had received from his ancestors. In other words, the jointness of

the plaintiff with defendants No.1 to 3 is not denied by defendant

No.4, however, that itself is not sufficient to infer that the plaintiff

had knowledge about the same transaction between defendant No.1

and defendant No.4. When defendant No.1 was the Karta of the

family, he had authority to dispose of the said property legally and

validly. Defendant No.4 had come with a case that there was legal

necessity for defendant No.1 and, therefore, he had sold two suit

properties to defendant No.4. A specific contention has been raised

in the written statement that defendant No.1 was in need of money

to mitigate the loan taken from bank and private persons. Amount

of consideration of Rs.7000/- has been paid in all and prior to that

there was an agreement to sell and at that time amount of

Rs.2500/- has been given as earnest amount. At the time of

executing the agreement to sell itself, possession over the suit

9 SA 248-1993, CA 2312-1993

properties was parted with by defendant No.1 in favour of defendant

No.4 and, therefore, after the execution of the sale deed; the same

possession has been confirmed as that of ownership. The said

transaction was never challenged by defendant No.4 on any count,

however, the fact remains is that when defendant No.4 had come

with a case that the sale transaction was for legal necessity,

executed by defendant No.1 in his capacity as Karta of the Joint

Hindu Family, then the burden is on defendant No.4 to prove the

same. Perusal of the sale deed Exhibit 91 would show that the

decision to sale the land has been taken by defendant No.1 to raise

amount for domestic expenses, to mitigate the loan of people and to

repay the loan amount taken from Governments. There was no

specific mention that any loan was taken from land mortgaged bank

and amount was still due. Even if we give the vital meaning to word

"Sarkari Karj" used in the sale deed Exhibit 91 as being referred to

the bank transaction, yet the 7/12 extracts which have been

produced on record of the suit land do not bear endorsement in the

other rights column that any such loan was taken and it was due

either at the time of agreement to sell or the sale deed dated 11-05-

1976. In her cross-examination DW.1 Shantabai has stated that she

was not having knowledge as to how much was the loan of land

10 SA 248-1993, CA 2312-1993

mortgaged bank due from defendant No.1. She admitted that she

has not produced any documentary evidence showing loan amount

against defendant No.1 or any repayment of loan to land mortgaged

bank. She examined PW.2 Ramsing who has reiterated the said fact

once again. But it appears that he was also present when the talks

regarding purchase of the property and agreement to sell were

discussed. According to him, defendant No.1 wanted to sell the land

for Rs.10000/-, however the defendant No.4 was asking for

Rs.5000/-, but then he says that ultimately the amount was fixed at

Rs.7000/-. According to him, defendant No.1 wanted to payoff the

loan. In his cross-examination he has admitted that the irrigated

land in his village may fetch price between Rs.10000/- to Rs.20000/-

per Acre. Further, he says that he was not having exact idea as to

whether defendant No.1 was indebted to any bank. He has no

personal knowledge about the same, but then he says that he came

to know about it through Nivarti i.e. defendant No.1. Therefore, it

can be taken that he relied on the statement of defendant No.1 and,

therefore, he is deposing that there was loan. Loan of a bank

cannot be accepted as proved without documents as it contemplates

documentary evidence. When there is availability of documentary

evidence, oral evidence cannot be considered at all. Reason has to

11 SA 248-1993, CA 2312-1993

be then given as to why documentary evidence is not possible to be

brought on record.

7. Defendant No.4 has then examined DW.3 Baliram Mali who

has stated that he had given amount of Rs.2000/- as defendant No.1

wanted to go to Delhi for some work. According to him, he had

advanced amount of Rs.2000/- to defendant No.1 and then

defendant No.1 told him that he want to sell his land and from the

sale consideration his amount would be returned. This witness says

that PW.1 Shantabai give amount of Rs.2500/- to defendant No.1

and defendant No.1 returned his amount of Rs.2000/- to him. At

the outset, it is to be noted that in spite of having full opportunity, it

has not been extracted by defendant No.4 as to exactly when DW.3

Baliram had extended that amount of Rs.2000/- to defendant No.1.

No doubt his name was not disclosed in the written statement by

defendant No.4 and it was simply stated that since defendant No.1

was indebted to provide persons, it can be said that non mentioning

of name of DW.3 Baliram is not a lacuna in the evidence of DW.4.

Except bare words of DW.3 Baliram there is nothing. Thus, it can be

seen that there was no supporting evidence led by defendant No.4

to prove that the legal necessity was on account of mitigating to

12 SA 248-1993, CA 2312-1993

private as well as Government/Bank loan. No doubt we are required

to consider the evidence on the preponderance of probabilities but

the person who is purchasing the land of a joint family should at

least consider as to whether the reason and/or the necessity stated

by the vendor is existing as well as legal. Mere statement in the

sale deed to that effect without any evidence, will not be sufficient.

8. Another ground which tried to be contended by the plaintiff

was the inadequacy of consideration which has been scantily pleaded

in paragraph No.5 of the plaint, and it was then submitted that,

paragraph No.15 of the Judgment of the learned Trial Judge was

beyond pleadings. In this respect it can be only stated that

inadequacy of consideration cannot be the point to assess legal

necessity. When there is dire need of money, then a person may

agree to accept less than the market price.

9. Much stress has been given on the admissions given by

witness PW.1 Uttam Langade in his cross-examination who had

stated that his father did not enjoy the suit land since last 15 years.

He has stated that his father was residing separately since about 30

years; then he corrected it to 15 years. He has stated that the suit

land was left uncultivated and his father had no bulls and

13 SA 248-1993, CA 2312-1993

agricultural equipment. It was contended that taking into

consideration these admissions it can be said that the father was in

need of a money. However, this submission cannot be accepted for

the reason that DW.1 Shantabai who was examined first in time

than the plaintiff's evidence has admitted in her cross-examination

that the suit land is irrigated. In her own sale deed Exhibit 91, it is

stated that there is well which is having water (it is addressed as

'Budkhi' in the sale deed) and she has also purchased 1/4th share in

the water. When water is available in the land, it could not have

been left uncultivated. Therefore, we cannot interpret the

admissions in the cross-examination of PW.1 Uttam in the way the

learned Advocate appearing for the appellants intend to convey.

10. The ratio laid down Marotirao and others (Supra) is not

applicable to the facts of the case because in this case the purchaser

has failed to prove the legal necessity. In Marotirao and others

(Supra) it was established that the alienation of the family property

by the Karta was for legal necessity and then further ratio is that it

is not necessary for the purchaser to prove that the amount so

raised by way of consideration has been utilized for mitigating the

loan or the legal necessity.

14 SA 248-1993, CA 2312-1993

11. Thus, after scanning the evidence on the point of legal

necessity, it can be said that the conclusions drawn by both the

Courts below does not suffer from any kind of perversity and,

therefore, the substantial question of law as formulated will have to

be answered in the negative. No interference is required in the

concurrent Judgment and decree passed by the Courts below,

consequently the second appeal stands dismissed with costs.

Decree be drawn up accordingly. Pending Civil Application stands

dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

LATER ON :

1. Learned Advocate appearing for appellant, after pronouncement of the Judgment, seeks extension of the interim relief, which was earlier granted by this Court as it is in operation since 28-07-1993 till today.

2. Since the appellant-applicant intends to approach the higher Court and the stay was earlier granted by this Court, the interim stay to continue for a period of six weeks from today.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-

                                15               SA 248-1993, CA 2312-1993