Bombay High Court
Abaji Jaywanta And Others vs Datta Kishan And Others on 14 January, 2025
2025:BHC-AUG:1005
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sa155.94.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
902 SECOND APPEAL NO. 155 OF 1994
1. Abaji s/o Jaywanta
age 21 years, occ. Agriculture
r/o Somthana, Tq Biloli
Dist. Nanded.
2. Bhaurao s/o Jayawanta
age major, occ. Agriculture
r/o Somthana, Tq. Biloli
Dist. Nanded.
3. Vithal s/o Jayawanta
age major, occ. Agriculture
r/o Somthana, Tq. Biloli
Dist. Nanded.
4. Vastchalabai w/o Jayawanta
age 47 years, occ. Household & agriculture
r/o Somthana,Tq. Biloli
Dist. Nanded.
Died through her LRs.
4-1 Madhurikabai w/o Baburao
age 25 years, occ. Household
r/o Sugaon, Tq. Kandhar
Dist. Nanded. ....Appellants
VERSUS
1. Datta s/o Kishan
age 45 years,
occ. Agriculture
r/o Somthan, Tq. Biloli
Dist. Nanded.
2. Jayawanta s/o Irba
age 50 years,
occ. Agriculture
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sa155.94.odt
r/o Somthan, Tq. Biloli
Dist. Nanded.
3. Pandurang s/o Bapuji
age 50 years, occ. Agriculture
r/o Somthana,Tq. Biloli
Dist. Nanded.
4. Raosaheb s/o Nagoji
age 28 years, occ. Agriculture
r/o Somthana, Tq. Biloli
Dist. Nanded.
5. Baburao s/o Shivram
age 24 years, occ. Agriculture
r/o Somthana, Tq. Biloli
Dist. Nanded.
6. Jijabai w/o Govindrao
age 30 years, occ. Agril
r/o Somthana, Tq. Biloli
Dist. Nanded.
7. Dadarao s/o Kishan
age 40 years, occ. Agril
r/o Somthana,Tq. Biloli
Dist. Nanded. .....Respondents
Smt. M. A. Kulkarni., Advocate for Appellants
CORAM : R. M. JOSHI, J.
DATE : 14th JANUARY, 2025.
JUDGMENT :
1. This appeal is preferred by original Plaintiffs taking
exception to the judgment and decree passed by learned Trial Court
which is confirmed by the First Appellate Court to the extent of sale-
deed dated 10.03.1977 executed by Defendant No. 1 in favour of
sa155.94.odt
Defendant No. 6 which has been held to be valid and binding on
Plaintiffs.
2. Present appeal is filed with a specific contention that in
view of the provisions of Sections 47 and 48 of Maharashtra
Cooperative Societies Act, the property mortgaged to the cooperative
society cannot be sold and any such transaction is hit by the said
provisions. Second issue sought to be canvassed before this Court is
about legal necessity for which the subject property was sold by
Defendant No. 1 on behalf of himself as well as Plaintiffs.
3. Heard learned counsel for the Appellants/Plaintiffs. None
appears for Respondents/Defendants. It is the contention of learned
counsel for the Appellants that admittedly the subject property was
mortgaged with the cooperative society and as such the provisions of
Section 47 and 48 of the Cooperative Societies Act would apply to the
present case. It is her contention that the learned Trial Court as well
as the First Appellate Court have failed to take into consideration the
said aspect. On the point of legal necessity, it is sought to be
contended that there is no evidence to indicate that the transaction
in question was done for legal necessity.
sa155.94.odt
4. While admitting the appeal, it was observed that the
point of legal necessity involves substantial question of law. During
the course of hearing, it is sought to be contended that the bar
created by Sections 47 and 48 of Maharashtra Cooperative Societies
Act would also amount to substantial question of law involved in this
appeal.
5. There is no dispute about the fact that the Plaintiffs had
sought declaration that sale-deed dated 10.03.1977 executed by
Defendant No. 1 in favour of Defendant No. 6 is not valid and binding
on their share. Defendants thus took specific plea about sale of the
property by Karta of joint family i.e. Defendant No. 1 for legal
necessity. This Defendant led evidence to the extent that the said
property was sold for the purpose of meeting the debts created in
favour of the cooperative society. Apart from this, document of sale
itself indicates so. This Defendant, therefore, has discharged initial
burden of proving that the sale of the property was by Karta of the
joint family for legal necessity. The onus therefore shifted upon the
Plaintiffs to prove otherwise. There is no evidence to indicate that the
property was sold not for legal necessity. Satisfaction of debt created
in favour of the society and sale of the property can certainly be
sa155.94.odt
considered as legal necessity. Findings of fact recorded by both the
Courts below since are in consonance with the evidence on record are
not found to be perverse.
6. As far as contention of learned counsel for
Appellants/Plaintiffs about application of Sections 47 and 48 of the
Act is concerned, it is settled position of law that the person who has
sold such mortgage property is not entitled to claim that the sale is
not valid. It may be open for the society or the person in whose
favour the mortgage is created to claim so. Thus, this Court finds no
substance in the contention of learned counsel for the
Appellants/Plaintiffs. As such, substantial questions of law framed
herein are answered in negative. Appeal stands dismissed.
7. Pending application, if any, does not survive and stands
disposed of.
( R. M. JOSHI)
Judge
dyb
