Sunil Kalyan Bhale And Others vs Kamanabai @ Kamalabai Kalyan ...
2021 Latest Caselaw 14653 Bom

                                                                  sa-451-2019 with ca.odt


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         SECOND APPEAL NO.451 OF 2019
                        WITH CA/8804/2021 IN SA/451/2019

            SUNIL S/O KALYAN BHALE AND OTHERS
                              VERSUS
KAMANABAI ALIAS KAMALABAI KALYAN BHALE (DIED) AND OTHERS
                                ...
     Mr. V. V. Jahagirdar h/f Mr. N. K. Tungar for appellants.
                                 ...
                                   CORAM         : SMT. VIBHA KANKANWADI, J.

                                   DATE          : 07.10.2021

ORDER :-


.        Present appeal has been filed by the original plaintiffs challenging

the concurrent judgment and decree passed by the Courts below.

Present plaintiffs had filed Regular Civil Suit No.60 of 2002 before the

learned Civil Judge Junior Division, Kannad, Dist. Aurangabad for

partition and separate possession. The said suit came to be partly

decreed on 18.10.2010. It was held by the learned Trial Court that the

plaintiffs are having 4/5th share in suit property old Municipal House

No.408 now converted to Municipal House No.3/455. However, their

claim in respect of old Municipal House No.408 converted into

Municipal House No.408/A now converted into Municipal House

No.3/455/A was dismissed. The original plaintiffs challenged the said

judgment and decree by filing Regular Civil Appeal No.226 of 2011

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before the learned Principal District Judge, Aurangabad. By judgment

and order dated 16.09.2018, the said Regular Civil Appeal as well as

Regular Civil Appeal No.227 of 2011 filed by original defendant No.3,

came to be partly allowed. The judgment and decree passed by the

learned Trial Judge was set aside and modified. The suit for partition

was partly decreed. It was declared that plaintiff Nos.1 to 4 and

defendant No.1 are entitled to get 1/5th share each in the suit property

area 1376 sq. feet excluding the area of 784 sq. feet i.e. 28 x 28 feet

purchased by defendant No.2. Plaintiff Nos.1 to 4 and defendant No.1

held to get 275 sq. feet each out of area 1376 sq. feet and defendant

No.3 would retain 275 sq. feet area in equitable partition out of the area

purchased under registered sale-deed dated 21.07.2004. The claim for

partition in respect of another property which was rejected by the

learned Trial Court was also rejected by the first Appellate Court.

Hence, this second appeal.

2. Heard learned Advocate Mr. V. V. Jahagirdar holding for learned

Advocate Mr. N. K. Tungar for appellants.

3. It has been vehemently submitted on behalf of the original

plaintiffs that both the Courts below have failed to consider that both

the suit properties were the ancestral properties left by the father of

plaintiffs and now by the deceased mother (original defendant No.1),

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who expired during the pendency of the appeal. They had no right to

alienate the property to respondent Nos.2 and 3, which came to be sold

by two different sale-deeds. The provisions of Hindu Succession Act

were not considered properly. It is then contended that respondent

No.2, after the alleged sale-deed by deceased father - Kalyan, had

entered his name and succeeded in getting entries and separate number

408-A without giving notice to the plaintiffs. Even respondent No.2 had

filed suit for injunction against deceased father and mother of the

plaintiffs during their lifetime, which came to be decreed against them.

But, it was failed to consider that when they had no right to sell the suit

property, such injunction could not have been clamped and the rights of

the plaintiffs in the suit property could not have been prejudiced. Both

the respondents i.e. respondent Nos.2 and 3 failed to prove the legal

necessity and, therefore, those sale-deeds in their favour ought to have

been set aside.

4. Reliance has been placed on the decision in Suresh @ Suryakant

Shamsundar Darandale and anr. Vs. Praveen Balasaheb Darandale and

ors.,[2014 (7) LJSOFT 59], wherein it has been held that "Hindu

coparcener has right to sell at least his own share from joint family

property and for that purchaser is not expected to prove that the

transaction was made for legal necessity, however, as the legal necessity

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is not proved the sale in respect of interests of plaintiffs in the joint

family property cannot be recognised." Further, in this case, though in

the sale-deeds it was mentioned that the seller was in need of money for

medical expenses, but when no particulars of the medical expenses were

given either in the sale-deed or in the evidence, then such legal necessity

cannot be presumed. Further, reliance has been placed on the decision

in Rameshwar s/o Babasaheb Paul Vs. Shivaji s/o Eknathrao Paul and

others, [2019 (4) ALL M R 803], wherein it has been held that,

"Evidence on record shows that the plaintiff, minor was exclusive owner

of the suit land and no evidence was adduced that father was neglecting

the child and child was in care, custody and maintenance of the mother,

then the sale cannot be said to be for legal necessity or benefit of minor."

Further, reliance has been placed on the decision in The Designers Co.-

Op. Hsg. Soc. Vs. Udhav s/o Murlidhar Rasne and ors.,[2011 (1) ALL

MR 346], wherein the duties of purchaser were highlighted and he was

held that, "the burden would lie on purchaser to prove either that there

was legal necessity in fact or that he made proper and bona fide

inquiries as to existence of such appalling and pressing needs of the

family." Further, reliance has been placed on the decision in Mohd.

Osman s/o Pir Sab Vs. Dr. Devid s/o Premkumar D. F. Sundersingh,

[2011 (2) ALL MR 315], wherein it was held by this Court that the first

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Appellate Court is a last fact finding Court and is duty bound to deal

with the total factual matrix. Further, reliance has been placed on the

decision in Mallaya Bapenna Mekkalwar Vs. Rajboina Bhemmaka w/o

Hanamantoo & ors., [ 2008 (2) ALL MR 21], wherein it has been held

that though the defendants contended that the transaction was for legal

necessity, but the evidence on record was not supporting the said case,

the order of passing decree for partition and separate possession was

proper. Further, reliance has been placed on the decision in

NagubaiAmmal and others Vs. B. Shama Rao and others, [AIR 1956 SC

593], wherein it has been held that, "when the parties went to trial with

knowledge that a particular question is in issue, though no specific issue

has been framed thereon and adduced evidence relating to the same,

then absence of a specific pleading on the question was mere

irregularity, which resulted in no prejudice to them."

5. On the basis of these submissions, learned Advocate for the

appellants prayed for admission of the second appeal stating that

substantial questions of law are arising in this case.

6. At the outset, it is to be noted that both the Courts below, taking

into consideration the evidence, held that the plaintiffs have partly

proved that the suit property is undivided joint Hindu family property of

plaintiffs and defendant No.1. In order to arrive at this conclusion, the

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first and the foremost fact that is required to be considered is that the

plaintiffs contended that it was an ancestral property, but then who was

the original person has not been stated. If that was the ancestral

property, it could not have started from their father. Account of three

generations including their father should be accounted and then their

has to be pleading as to how the suit property devolved on their

deceased father. There is lack of clarity in this connection. However, the

evidence that was available would show that the father, their mother i.e.

defendant No.1 and plaintiffs were residing together forming a joint

Hindu family. Their father Kalyan had sold the second property i.e. 28 x

28 ft. Municipal House bearing No.408-A to original defendant No.2 on

19.08.1981. If that sell was of the year 1981, then the suit that was

filed on 19.04.2002 will not be within limitation. Further, it can be seen

that if the property was ancestral, then Kalyan was the Karta of the

family. It had come on record that he was suffering from T.B. and the

family was in need of money. Plaintiffs have not adduced evidence that

Kalyan had sufficient amount with him to bear the medical expenses

upon himself. Further, he could have disposed off the property which

would have fallen to his share and, therefore, the first Appellate Court

has rightly held that, that property which was purchased by defendant

No.2 will have to be excluded. One more fact that is required to be

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considered is that defendant No.2 had filed Regular Civil Appeal No.111

of 1988 for perpetual injunction. That suit was against the plaintiffs and

defendant No.1. If that is so, then the plaintiffs had the knowledge

about the sell transaction. Why in that suit itself, they had not prayed

for partition and separate possession is a question, which has been left

unanswered. Further, when that suit was filed in the year 1988, then

why it took plaintiffs so much of time to approach the Trial Court i.e. till

2002 to file a suit for partition and separate possession. Under such

circumstance, as against defendant No.2 both the Courts below have

rightly rejected the relief.

7. Now, turning towards the point of legal necessity in respect of

transaction, which defendant No.3 has purchased, it has come on record

that after death of Kalyan, the mother defendant No.1 was the Karta or

manager of the joint family. It can be seen that, at that time, the

plaintiffs were very young and, therefore, the affairs of the family

property would have been definitely dealt with by defendant No.1.

Strictly she may not be Karta, but since she would have been managing

the affairs of the joint family property, she could receive every right to

collect the amount to run the house. After excluding the property, which

was sold to defendant Nos.2 and 3, the remaining area of the suit

property is in possession of the plaintiffs and defendant No.1. Now,

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defendant No.1 had expired during the pendency of the appeal. As

regards defendant No.3 is concerned, though he had purchased the

property during the pendency of the litigation, yet, it was sold by

defendant No.1. So defendant No.1's share can be carved out and given

to defendant No.3. When the property was sold to defendant No.3 by

defendant No.1, definitely, she had the power to dispose off her share.

Therefore, whatever division has been made by the learned Principal

District Judge while deciding the first appeal is correct, legal and

justified.

8. The ratio laid down in catena of judgments relied by the learned

Advocate for the appellants cannot be denied, however, taking into

consideration the facts of the present case and the evidence that has

come on record, the said ratio cannot be made applicable here. Whether

there is legal necessity or not would depend on the evidence that had

been adduced by the parties.

9. No substantial questions of law are arising in this case requiring

admission of the second appeal. Hence, second appeal stands dismissed.

10. In view of dismissal of the second appeal, Civil Application

No.8804 of 2021 stands disposed of.

[SMT. VIBHA KANKANWADI, J.] scm