Bombay High Court

Narayan Bhaurao Kados U/G ... vs Gangadhar Dhuraji Kados (L.Rs.) ... on 19 April, 2022

Bench: Mangesh S. Patil

                                 (1)                               sa341.92

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                   949 SECOND APPEAL NO. 341 OF 1992

 1.      Narayan S/o. Bhaurao Kados,     ...APPELLANTS
         Age-15 years, a Minor,
         Under Guardianship of real
         mother Kantabai W/o. Bhaurao,
         Aged-36 years, Occu-Household work,
         R/o. Malewadi, Tq. Jalna,
         At present Residing at Gadhe-Jalgaon
         Tq. & Dist. Aurangabad

 2.      Kantabai W/o. Bhaurao Kados,
         Age-36 years, Occu-Household work,
         R/o. Gadhe-Jalgaon,
         Tq. & Dist. Aurangabad

         VERSUS

 1.      Gangadhar S/o. Dhuraji Kados,          ...RESPONDENTS
         Since Deceased, by his heirs,
         and Legal representatives

 1-A] Digambar S/o. Gangadhar Kados,
      Age-33 years, Occu- Agriculturists,

 1-B] Ashok S/o. Gangadhar Kados,
      Age-30 years, Occu- Agriculturists,

         All R/o. Maewadi, Tq. & Dist. Jalna.


 Mrs. Pooja V. Langhe, Advocate for the appellants




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                                          (2)                                     sa341.92

                                      CORAM : MANGESH S. PATIL, J.

RESERVED ON : 12 April 2022 PRONOUNCED ON : 19 April 2022

JUDGMENT :-

I have heard Mrs. Langhe, learned Advocate

for the appellant. None is present for the

respondents.

1. The second appeal has been admitted by the

order dated 29-07-1992 with following substantial

question of law:

"i. Non consideration of all the issues arising out of

plaintiff's pleading as taken into account by the trial court,

while reversing the decision by the lower Appellate Court

raises a substantial question of law. Leave was also granted

to add substantial questions of law, perhaps as

contemplated under Section 100 (5). However, none have

been furnished thereafter."

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(3) sa341.92

2. Shorn of details, the facts leading to the

second appeal are as under:-

a] Appellant No. 1-Narayan while he was

barely couple years of age filed the suit

through his natural guardian and mother who is

arrayed herein as appellant No.2-Kantabai

against one Gangadhar, the predecessor of

respondent No.1 and his own father Bhaurao who

is respondent No.2 interalia averring that the

suit property agriculture land Gut No. 42, adm.

13-Acres 5-Gunthas of village Malewadi, Tq.

Jalna was the ancestral and joint family

property. Bhaurao was congenital idiot. He was

suffering from fits of insanity. Taking

advantage of his such condition Gangadhar-the

original defendant got executed a sale deed of

the suit property on 04-09-1981 without there

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(4) sa341.92

being any legal necessity. It was not even for

the benefit of minor son Narayan. No

consideration was paid. Whatever was mentioned

as consideration was meagre. The market price

was more than Rs. 20,000/-. Gangadhar played

mischief by pretending that his land Gut No. 14,

admeasuring 3-Acres 16-Gunthe was sold to

Bhaurao by a separate sale deed on the same date

for Rs.7,000/- when in fact the property was

worth barely Rs.1,000/-. The suit property was

superior than the property of Gangadhar Gut No.

14. By questioning the legality of the sale deed

on all these grounds, Narayan claimed possession

of the entire suit property and perpetual

injunction restraining Gangadhar from alienating

it.



         b]       Gangadhar contested the suit by his written

         statement.             He    admitted        the     relation           between


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                                              (5)                                     sa341.92

Narayan, Kantabai and Bhaurao. He also admitted

about having purchased the suit property for

consideration mentioned in the sale deed and

sold his own land Gut No. 14 to Bhaurao on the

same date. He, however, denied rest of the

contentions. He contended that Bhaurao was not

idiot or lunatic. He was shrewd and a person who

could manage to file a collusive suit. He was

indebted to a bank as also individuals and was

in need of money. To pay them off he had to sell

the suit property. Even Bhaurao wanted to

purchase land of superior quality. While

disposing of the suit property on the very same

day, he purchased his (Gangadhar's) land for

valuable consideration. His land is superior to

that of Bhaurao. Therefore, he contended that

Bhaurao had sold the suit property to meet legal

necessity of the joint family and besides the

transaction was for the benefit of the family.


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                                       (6)                                 sa341.92



         c]                Bhaurao    filed      written              statement

         admitting the claim.



         d]                With such pleadings the parties went to

trial. The trial court concluded that there was

neither any legal necessity nor was sale for the

benefit of the family. However, it also held

that Bhaurao was not idiot or lunatic and was

not incapable of selling suit property. In view

of such conclusion the trial court decreed the

suit and holding that sale was not binding on

Narayan, directed possession of 2/3rd share of

the suit property to be delivered to him and

also granted perpetual injunction as prayed for.

e] Being aggrieved by the judgment and

decree of the trial court, Gangadhar preferred

an appeal before the District Court by arraying

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(7) sa341.92

Narayan, Kantabai and Bhaurao as respondents. By

the judgment and order under challenge the

appeal has been allowed, the judgment and order

of the trial court has been quashed and set

aside and the suit has been dismissed.

f. The lower appellate court has concurred

with the conclusion of the trial court in

observing that Bhaurao was not lunatic or idiot

and was capable of defending his cause was

capable of and taking conscious decisions.

However, it concluded that the suit was

collusive one. Bhaurao was acting behind the

curtains. There was evidence to demonstrate that

he was in need of money to pay off debts, beside

purchasing a superior quality land. The

transaction was beneficial to the family. It was

also noticed that Kantabai was not a party to

the suit albeit she was arrayed as respondent

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(8) sa341.92

No. 2 in the appeal before the lower appellate

court. It was also noticed that another child

was born to her from Bhaurao during pendency of

the litigation. The decree was inexecutable in

as much as no prayer for partition was there and

that Narayan was held entitled to only 2/3 rd

share.

3. The learned Advocate Mrs. Langhe would

submit that being a purchaser burden was on

Gangadhar to prove that the property was sold by

Bhaurao to him for legal necessity and that it was

for the benefit of the family. However, no

sufficient, cogent and convincing evidence was led

before the trial court which had necessitated it to

pass the decree. There was no perversity or

illegality. The trial court had appreciated the

evidence in the proper perspective and the lower

appellate court without considering the material

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(9) sa341.92

evidence has unnecessarily caused interference while

reversing the judgment. Points considered by the

trial court have been overlooked and the judgment

and decree under challenge be quashed and set aside

and one passed by the trial court be restored.

4. She would place reliance in the decision of

Shrikant Trimbakrao Begade Vs Natthu Maroti

Shivarkar through LRs Jyoti Wd/o. Natthu Shivarkar

and others reported in 2017(4) Mh.LJ 590.

5. I have carefully considered the submissions

of the learned advocate and perused the record and

proceeding. It is necessary to observe at the out

set that the learned advocate Mrs. Langhe tried to

assail the judgment and order of the lower appellate

court on the ground that the appeal was not

maintainable in as much as Bhaurao being a lunatic

was incapable of defending himself. It could not

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(10) sa341.92

have been filed without appointment of his guardian

as is required by order 32 of the Code of Civil

Procedure. She was even bold enough to refer to a

decision in the matter on Ram Chandra Arya Vs Man

Sing and another reported in AIR 1968 SC 954.

6. I have intentionally used the word 'bold'

for the simple reason that in fact, the appellant-

Narayan is the original plaintiff who had filed the

suit through his mother-Kantabai who is arrayed as

the appellant No.2 in the second appeal, arraying

Gangadhar the purchaser as defendant No.1 and his

father Bhaurao as defendant No.2. Though a stand was

taken since inception that Bhaurao was idiot and may

be lunatic at times, the suit itself would have been

defective, if this stand was to be taken about his

lunacy. At no point of time procedure under order 32

was followed during pendency of the suit before the

trial court and Bhaurao was sued without seeking any

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(11) sa341.92

appointment of guardian to defend him. On the

contrary, admittedly, he appeared through a lawyer

and even filed a consenting written statement. If

such is the state of affairs, particularly when both

the courts below have recorded a concurrent finding

that he was capable to defend himself and was not

idiot, the submission of the learned advocate Mrs.

Langhe to reck up this issue at this stage, is

highly objectionable and not legally and factually

tenable at all.

7. Be that as it may, there cannot be any

dispute about the fact that going by the principles

of Hindu Law, burden was on the purchaser to prove

existence of legal necessity for the Karta or

Manager of the joint family to sell the joint family

property. Similarly, even the burden to prove that

such a sale was for the benefit of family would

also be on the purchaser, as has been laid down in

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(12) sa341.92

the matter of Shrikant Begade (supra).

 8.               The           courts              below        have            recorded

 contradictory                 findings      in      this   regard.          The       trial

 Court         has       concluded           that      there        was       no       legal

 necessity            and       the    transaction           was       not       for      the

benefit of the family. Whereas the lower appellate

court has concluded that there was a legal necessity

and even the transaction was for the benefit of the

family.

9. As far as necessity is concerned, the lower

appellate court has pointed out that simultaneously

when sale deed in respect of suit property was

executed by Bhaurao in favour of Gangadhar, latter

also executed another sale deed in favour of the

former of another land for consideration of

Rs.7,000/-. The suit property was sold for

Rs.10,000/- and Bhaurao purchased Gangadhar's land

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(13) sa341.92

for Rs. 7,000/-. It also pointed out that

purchased from Gangadhar for a total consideration

of Rs. 20,000/- by two different sale deeds barely

within 1 and half year. It also noticed that revenue

record of the suit property disclosed an entry in

respect of an encumbrances of a credit society. It

also noticed that Kantabai was feigncing

ignorance. Her father Shamrao who was examined as a

witness had also expressed ignorance about such

pourchase of land Gut No.14 and existence of

encumbrance. It also compared the crops grown in the

suit property and harvested from Gut No.14. It was

also pointed out that information was elicited from

Gangadhar during his cross examination on behalf of

plaintiff-Narayan as to whom and how much money

Bhaurao was to pay apart from his liability to the

credit society. The lower appellate pointedly

remarked that encumbrance as was appearing in the

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(14) sa341.92

revenue record of the suit property was ignored by

the trial court in spite of it being a certified

copy of a public document and it was not even

exhibited or read in evidence.

10. True it is that some observations of the

lower appellate court like usual practise of

mentioning lesser amount of consideration in the

sale deed to avoid the stamp duty are based on

surmises and conjunctures. However, pertinently,

conclusion is not solely dependent on such

observations. It has referred to all the

aforementioned circumstances, which are clearly

borne out from the evidence, to demonstrate as to

how there was evidence to show that in all

probability the suit property was sold for legal

necessity and also for the benefit of the family and

indeed such benefit was subsequently derived by

selling it with appreciation within a short span.


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                                        (15)                                  sa341.92

All these factors noted by the lower appellate court

were clearly available for the trial court to look

into, but were not considered.

11. In addition to aforementioned

circumstances, the lower appellate court, for the

valid reasons, has also remarked that it was a

collusive suit. Indeed, the suit was collusive one.

Even Bhaurao was bold enough to file a consenting

written statement, admitting the claim. The suit was

filed barely within nine months of execution of the

sale deed. There was no prayer for partition and

none was granted by the trial court. It was indeed