Bombay High Court
Nandu Kisan Dusunge And Ors vs Smt. Thakubai Namdeo Dusunge And ... on 25 October, 2023
Bench: S. G. Mehare
2023:BHC-AUG:23151
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
4 SECOND APPEAL NO.488 OF 2019
WITH CA/13738/2016 IN SA/488/2019
NANDU KISAN DUSUNGE AND ORS
VERSUS
SMT. THAKUBAI NAMDEO DUSUNGE AND ANR
...
Advocate for Appellants : Mr. Nangare Prashant R.
Advocate for Respondent No.1 : Mr. V. S. Bedre.
...
CORAM : S. G. MEHARE, J.
DATE : 25.10.2023
PER COURT :-
1. Heard the learned counsels for the respective parties.
2. It is an interesting case that the plaintiffs father had sold
20 R. of land to respondent Smt. Thakubai in the year 1994.
After the son became major, the plaintiffs filed a suit for
cancellation of sale deed on the ground that the father was
addicted to liquor and there was no legal necessity to sell that
suit land. The father was arrayed as defendant and he
admitted plaintiffs claim.
3. The suit was decreed. However, the First Appellate Court
remitted the case to Trial Court. Then, the learned Trial Court
dismissed the suit. The appeal against the said judgment and
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decree was also dismissed. Against two concurrent judgments,
the appellants are before this Court.
4. The case of the appellants was that the suit land was not
sold for legal necessity. Both Courts did not accepted their case.
5. The Court asked the learned counsel for the appellants
how much was the land of the joint family. He made a
statement that the total joint family property was 2 H. 73 R.
6. Learned counsel for the plaintiffs submits that the legal
necessity and the burden was on the purchaser to prove that
there was no legal necessity and it was out and out sale
transactions are the substantial questions of law involved in
the appeal.
7. Learned counsel for the appellants/plaintiffs would
submits that the defence of legal necessity was false and
concocted. The primary case of the appellants was that it was a
sale transaction under the influence of liquor. The appellants
took those contradictory stands. The appellants admitted in
cross-examination that his father/defendant No.2 was
possessing 30 to 40 R. of land. If the respective share of each
of the plaintiffs and defendant No.6, out of 2 Hectors 73 R. is
concerned, in a broad sense, each successor would get around
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50 to 54 R. of land. The defendants father has sold only 20 R.
of land. Hence, the sale deed is not liable to be cancelled.
8. Admittedly, there was 2 Hectors and 73 R. joint family
land. If it is divided amongst the plaintiffs and the father, who
tactfully admitted the claim of the plaintiff, every share holder
will get 54 R. of land. If the property sold is considered, it is
definitely less than, the share the father could get. Section 44
of the Transfer of Property Act and Section 4 of the Partition
Act allow the co-sharer to sale or transfer share from the joint
family property. If the other legal heirs are, the grievance
about the boundary, they may file a suit for partition. But, here
instead of filing a suit for partition, the son came up with the
case that the said sale deed is not legal and valid and it was
not executed for legal necessity. This seems to be a clever
pleading to defeat the rights of the purchaser for valuable
consideration. Considering the peculiar facts of the case, there
appears substance in the argument of the learned counsel for
the contesting respondent No.1 that no substantial questions of
law have been involved in this case.
9. Hence, the second appeal stands dismissed at admission
stage.
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10. Civil Application is disposed of accordingly.
(S. G. MEHARE, J.)
...
vmk/-
