Rama Chandra Sandha &Others vs Ramamani Bisoi And Others
2023 Latest Caselaw 11801 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                               R.S.A. No.363 of 2017
           In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment dated 28th July, 2017, passed by the
    learned 1st Additional District Judge, Khurda in R.F.A. No.60 of 2015 setting
    aside the judgment and decree dated 7th November, 2015 and 21st November,
    2015 respectively passed by the learned Civil Judge (Senior Dvision),
    Khurda in C.S No.233 of 2011.
                                       ----

         Rama Chandra Sandha &Others           ....           Appellants


                                    -versus-

         Ramamani Bisoi and Others             ....         Respondents

                  Appeared in this case by Hybrid Arrangement
                           (Virtual/Physical Mode):

                 For Appellants     -     M/s. A.K. Tripathy, P.Kar,
                                          P.K. Nayak & S. Mohanty
                                          (Advocates)

                 For Respondents -        Mr. B.H. Mohanty, (Sr. Adv)
                                          Mr.D.P. Mohanty, R.K. Nayak,
                                          T.K. Mohanty, P.K. Swain and
                                          M. Pal
                                          (Advocates for R-1 to R-3)
    CORAM:
    MR. JUSTICE D.DASH

DATE OF HEARING :14.09.2023 :: DATE OF JUDGMENT:29.09.2023

D.Dash,J. The Appellants, in this Appeal under section 100 of Code of Civil Procedure, 1908 (for short, 'the Code'), have challenged the Judgment dated

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28th July, 2017, passed by the learned 1st Additional District Judge, Khurda in RFA No.60 of 2015.

The respondents being the unsuccessful Plaintiffs in Civil Suit No.233 of 2011 of the Court of Senior Civil Judge, Khurdha, had filed the Appeal under section 96 of the Code in challenging the dismissal of the suit filed by them against the Respondents, who had been arraigned therein as the Defendants. The First Appellate Court in disposing the Appeal has passed a preliminary decree for partition of the suit property allotting the share to the parties in holding the Registered Sale Deeds No.120 and 121 dated 07.02.2011 are valid to the extent of the share of the Respondent No.4 (Defendant No.4) and not for the entire.

2. For the shake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred as has been arraigned before the trial court and as per the position assigned to them therein.

3. The Plaintiffs by filing the suit, sought for declaration of registered sale deeds no.120 and 121 dated 07.02.2011, executed by Defendant No.4 in favour of Defendant No.1 to 3 as illegal, inoperative and not binding on them. It has been the further prayer for permanent injunction against Defendant No.1 to 3 in respect of the properties described in schedule 'C' of the plaint. The Plaintiffs are the daughters of Defendant No.4 whereas the Defendant No.5 is the son of Defendant No.4. The property in suit originally belonged to the paternal grandfather of the Plaintiffs and Defendant No.5 namely Ananda Muduli, the father of the Defendant No.4. It accordingly stood recorded in his name in the record of right in the year 1929-30. Ananda expired in or before the year 1970. His wife predeceased him. The entire properties of Ananda were succeeded by his only son Narayana, the Defendant No.4.

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It is the case of the Plaintiffs that in view of old age and ailments of their father, Narayana, the Defendant No.4, their brother Niranjan Muduli, Defendant No.5 was managing the household affairs and look after the properties as the Karta of the joint family. It is stated that on 23.04.2011 when the Plaintiffs were cleaning the bamboo clumps standing over the suit land, the Defendant No.1 to 3 arrived there and staked their claim over the property as having purchased the same from Defendant No.4. A village meeting being convened to resolve the dispute, the Defendant No.4 expressed his ignorance regarding such sales of the suit land for consideration. The Defendant No.1 to 3 in that meeting agreed to reconvey the suit land to the Plaintiffs by executing registered document but subsequently, they did not keep up the commitment. It is further stated that the sale deeds in question were obtained from the Defendant No.4 by practicing fraud in falsely disclosing that he was executing the documents for getting the agricultural loan. It is also stated that the Defendant No.4 has no legal necessity to sale the suit land and as such he was having no authority and the sales made by him are not binding on the Plaintiffs and they cannot be deprived of their legitimate share over the said property.

4. The Defendants No.1 to 3 on the other hand asserted to be the bona fide purchasers of the suit property for value. They also state that Defendant No.4 being the eldest member of the family was the Karta and he has sold the property in question to them for legal necessity and benefit of estate. It is also stated that by such sales, the entire family has been benefitted and therefore, the sales made by the Plaintiffs would bind all the members of the family including the Plaintiffs.

5. The Appeal has been admitted to answer the following substantial questions of law:-

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"Whether the ultimate conclusion arrived at by the lower Appellate Court that the sale of the property by Defendant No.4 is valid to the extent of his share can be said to have been correctly rendered without embarking upon an enquiry as to whether the said sale by Defendant No.4 was in his capacity as the Karta of the family and the same was to meet the family necessity and need in the light of the settled legal principles holding the field in that regard?".

6. Learned Counsel for the Appellant submitted that the First Appellate Court having not bestowed due attention to the evidence as to the legal necessity on the part of Defendant No.4 who is Karta of the family to sale the property belonging to himself and other co-sharers has erroneously arrived at a conclusion that the sales were not for the legal necessity and thus cannot bind all the co-sharers and that valid to the extent of the share of the vendor- Defendant No.4, when the execution of the sale-deeds by the Defendant No.4 for valuable consideration followed by registration have been proved. He submitted that when the Plaintiffs in their plaint while challenging the execution of the sale-deeds dated 07.02.2011 under Ext.A=Ext.1(Certified Copy) and Ext.B=Ext.2(Certified Copy) have stated that the Defendant No.4 had been taken on the pretext of doing certain official formalities for obtaining agricultural loan; that itself would show that he was in need of money and thus, the legal necessity and therefore even without looking at the evidence of the Defendant No.1 on the question of existence of legal necessity, it has to be held that the Defendant No.4 had sold the properties under Ext.A=Ext.1(CC) and Ext.B=Ext.2(CC) for the legal necessity which is obviously aimed at the family, to the benefit the family and the estate. He further submitted that the evidence let in by the Defendant No.1 coupled with the recitals of the sale-deed dated 07.02.2011 under Ext.A=Ext.1(CC) and

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Ext.B=Ext.2(CC) complied with the above Plaint averment aken in rught perspective ought to have been held to be sufficient proof of legal necessity on the part of the Defendant No.4, who was the eldest member of the family as such the Karta of the family in selling the suit land and that ought to have been held to be binding on all the co-sharers such as the Plaintiffs and Defendant No.5 too.

7. Mr. A.K. Tripathy, learned Counsel for the Respondents submitted that in the instant case, the burden of proof as to the existence of legal necessity on the part of the family headed by Defendant No.4 necessitating the sale, the suit land was upon the Defendant Nos. 1 to 3 and therefore, when no such clear and cogent evidence have been tendered from their side. The Trial Court has rightly held the sale-deeds to be valid only to the extent of the share of the vendor i.e. Defendant No.4 in specifically stating that the Plaintiffs and Defendant No.5 are not bound by the same and that cannot deprive them of their legitimate share over the said properties purported to have been sold. He fairly submitted that the Plaintiffs although had challenged the execution of the sale-deeds, Ext.A=Ext.1(CC) and Ext.B=Ext.2(CC) by the Defendant No.4, both the Courts have not accepted such challenge and that aspect is no more being questioned by the Plaintiffs. He further submitted that in order to bind these Plaintiffs and Defendant No.4 under those sale-deeds so as to deprive them of their legitimate shares over those properties purported to have sold, the Defendant Nos. 1 to 3 having not discharge the burden of proof by leading, clear, cogent and acceptable evidence on the point of legal necessity for the family and the benefit of the estate, the finding arrived at by the First Appellate court is unassailable. He further submitted that here the First Appellate Court has embarked upon the inquiry on the question of legal necessity and then on going through the evidence has held in the negative.

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8. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below. I have also read the averments taken in the plaint and written statements and have perused the evidence both oral and documentary let in by the parties.

9. The recitals in the sale-deed in question in so far as necessity is concerned, are to repay the loan taken from the money lender. It is neither described in the said sale-deeds nor stated in the written statement as to all other details of those loan transactions, especially why that had been taken which is most vital to ascertain that the money being taken on loan by Karta had been spent for the benefit of the family. It has also not been described in the sale-deeds nor pleaded in the written statement that such loan had been taken for certain purpose/purposes of the family consisting of father, son and two daughters.

The settled position of law is that the Karta of the Hindu joint family enjoys certain special power and on the alienation of the joint family properties, wherein all co-sharers have their definite interest, he under certain situation having so resorted to can bind all the members of the family and the sale would be as if by that Karta for and on behalf of all. Such sale would bind all the co-sharers, when those are made for the legal necessity of the family so as to benefit the family or for the benefit of the estate. It is also the settled position of law that where such sale-deeds are impeached, the burden of proof as to the legal necessity lies upon the alinees to prove by leading clear, cogent and acceptable evidence that the Karta-vendor having the authority to sale the land had sold the land belonging to all the co-sharers as it was then the necessity of the family or that such sale stood as the necessity for the benefit of the estate.

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10. The sale made by the Karta of the Hindu joint family merely for clearance of loan, cannot be taken to be the sale for the legal necessity of the family or for the benefit of the estate. It has to be shown that the loan having been taken for the need of the family and to meet necessary expenses, for its repayment, such sales were made by the Karta. In the instant, there is no such pleading or evidence.

The Plaintiff have no doubt pleaded in the plaint that the Defendant No.4 was taken to the office being given a belief that he was going to go certain official formalities for obtaining agricultural loan. But from that even though for a moment, it is inferred that Defendant No.4 was in need of money at that time, that need cannot be stretched as the need for all the co-sharers being the need of the family. It cannot be presumed that such need was the legal necessity of the family so as to bind all the co-sharers, here the Plaintiffs and Defendant No.5. The First Appellate court has repelled the challenge made by the Plaintiffs to the execution of these sale-deeds. It has also discussed the evidence on record and has found nothing to be surfacing therein to ascertain the income of the Defendant no.4 at that point of time. On detail analysis of evidence on record, the conclusion of the First Appellate Court is that there is no evidence to reach at a finding that Defendant No.4 has sold those properties covered under the Ext.A=Ext.1(CC) and Ext.B=Ext.2(CC) for legal necessity or for the benefit of the estate. It was also not pointed out during hearing that the First Appellate Court has overlooked certain evidence available on record, which if would have been given due weightage, the finding as has been rendered by the First Appellate Court would not have been the outcome. Nothing is also shown that in arriving at such a conclusion, the First Appellate Court has read something which are extraneous to the evidence on record or that conjectures and

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surmises have played the vital role from being behind the screen in taking such view. This Court thus, finds no such infirmity with the said finding.

11. For all these aforesaid, the substantial questions of law find their answers in favour of the affirmation of the finding returned by the First Appellate Court as to the validity of the sale-deeds under Ext.A=Ext.1(CC) and Ext.B=Ext.2(CC) only to the extent of the share of Defendant No.4 over the land covered under the deeds but not in respect of the entire being not binding on the Plaintiffs and Defendant No.5.

Having said as above, this Court feels inclined to confirm the judgment passed by the First Appellate Court.

12. Resultantly, the Appeal stands dismissed. There shall be, however no order as to cost.

Sd/-

(D. Dash), Judge.

True Copy

Jr. Stenographer

Gitanjali

Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 04-Oct-2023 12:42:43

R.S.A. No.363 of 2017