Punjab-Haryana High Court
Rajmal Etc vs Attar Singh Etc on 5 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:047151
RSA-193-1990 (O&M) 2024:PHHC:047151
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-193-1990 (O&M)
Reserved on: 29.02.2024
Date of decision: 05.04.2024
RAJMAL (DECEASED) THROUGH LRS. & ANR. ..Appellants
Versus
ATTAR SINGH & ANR. ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Deepak Vashishth, Advocate
and Mr. D.P.S. Joura, Advocate
for the appellants.
Mr. Sanjay Majithia, Sr. Advocate
with Mr. Sumit Sinha, Advocate
for respondents.
ANIL KSHETARPAL, J.
Brief facts of the case:-
1. In this regular second appeal the defendants assailed the
correctness of the concurrent findings of fact arrived at by the Courts below
while decreeing plaintiffs (respondents) suit for grant of decree of
declaration that the Sale deed No.306 dated 31.05.1972, executed by his
father Sh. Phool Singh in favour of the appellants, was without legal
necessity, and against the interest of joint Hindu family.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed.
3. Sh. Phool Singh was owner of the land measuring 27 kanal 1
marla being 6/25th share. In the total land measuring 112 kanal 16 marlas,
comprised in Khewat No.25.
4. On 07.02.1968, he mortgaged the land against loan of
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Rs.6,000/-, in favour of Sh. Jug Lal son of Sh. Gopala. Subsequently, on
29.05.1972, he sold 20 kanal land for a total sum of Rs.16,875/- in favour of
the appellants namely Sh. Rajmal and Sh. Dhup Singh sons of Sh. Mange
Ram.
5. On 03.06.1989, the plaintiff (respondent herein) (Sh. Attar
Singh) filed a suit for declaration that the sale deed executed by his father is
without legal necessity and against the interest of joint Hindu family.
Defendant No.1 and 2 contested the suit on the ground that the sale was for
the benefit of the joint family and legal necessity. In the alternative, it was
claimed that the suit property was self acquired property of the vendor. It
was explained that out of total sale consideration, the vendor paid
Rs.6,000/- to the mortgagee, Rs.500/- to Sh. Kali Ram creditor of Sh. Phool
Singh, and Rs.600/- to Sh. Rati Ram creditor of Sh. Phool Singh, whereas
Rs.3,000/- has been spent by Sh. Phool Singh on marriage of his son Sh.
Ram Kumar.
6. Upon appreciation of evidence both the Courts have decreed
the suit, against which this appeal was admitted for regular hearing vide
order dated 25.01.1990, now, it has come up for final hearing.
7. Sh. Phool Singh-defendant No.3 admitted plaintiffs claim by
filing a separate written statement.
8. The First Appellate Court has recorded the following reasons to
uphold the judgment of the trial Court.
1. Defendant No.1 and 2 have failed to produce
agreement or other credible evidence to prove that
Rs.5,000/- was actually paid to the vendor on
24.01.1972.
2. Neither Sh. Sukhdev Raj nor any other person alleged
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to be creditor of Sh. Phool Singh was examined by the
vendees to prove the payment of the various items of
debt.
3. It has been recited in the sale date that the vendor
required money for his business and the evidence
adduced by the vendees that after the sale, he started a
'chakki', expeller and chaff cutter etc. But that stands
belied from the recital in the mortgage.
4. The vendees have failed to prove that the marriage of
Sh. Ram Kumar took place in the year 1972 or thereafter.
Hence, the legal necessity is not proved.
5. The mutation of the sale deed was got attested by the
vendees in the year 1983, whereas, the sale deed was
executed on 29.05.1972. Had there been no doubtful
play, the vendees were expected to get the mutation
entered and attested at the earliest.
6. There is an entry in the 'Goshwara' of village Shamlo
Khurd proving that Sh. Phool Singh was sentenced till
rising of the Court with a fine of Rs.20/- in a case under
The Central Excise Act, 1944 (hereinafter referred to as
the '1944 Act'). Therefore, it is proved that Sh. Phool
Singh was a man of bad habits.
7. It is not proved that the plaintiff has filed suit in
collusion with his father Sh. Phool Singh.
9. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paperbook along
with the requisitioned trial Court record.
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10. The learned counsel representing the parties have also filed
synopsis with the gist of their arguments.
11. The learned counsel representing the appellant in his written
note has made the following submissions:-
"1. That Ld. Courts below didn't considered that Sale
deed i.e. Ex PA categorically speaks about the necessity
of seller i.e Phul Singh (Father of plaintiff), wherein it
has been mentioned that total sale consideration was of
Rs. 16875/-. Out of which Rs. 5000/- were already
received on 24.01.1972 and also mentioned that Rs.
6000/- will be paid for mortgage to Mahla, Rs. 500 paid
to kali Ram on account of previous debt of Phul Singh,
also Rs. 600/- paid to Sukhdev s/o Harbans and
remaining Rs. 5275/- were received in front of Registrar
and thus land in dispute, was sold because of the
necessity of Phul Singh and nothing else.
2. That Ld. Court didn't considered that Phool Singh
who was Vendor (seller) of property never entered in to
witness box although he has filed his written statement
and was proceeded Ex-Parte in the suit. Which raises
doubt that this suit was filed with due conspiracy of
family and that is why Phul Singh never entered in to
witness box.
3. That Ld. Court didn't consider that only attesting
witness i.e. Dariya Singh DW-1, has also deposed about
authenticity of alleged sale deed and also about the
money which was o be given against the mortgage of
Phul Singh. Also it was not considered by Ld. Courts
below that no question about state of mind of Phul Singh
(i.e. seller of land in question) and also no question or
suggestion was put to him to question the installation of
Chakki in village or not.
4. That again it was not considered by the Ld. Courts
below that DW-2 i.e. Dhup Singh has categorically
stated that Phul Singh was in need of money and for that
he had sold the property. Also DW-2 has mentioned
about the distribution of money. But instead of this Ld.
Lower Court had allowed the suit without appreciating
facts of the case.
5. That PW-1 Attar Singh Has also admitted in his
cross examination that his father has sold his property
for releasing land from the mortgage of Rs. 6000/- and
same is also evident from the perusal of EX-D3. Thus
legal necessity is proved and plaintiff can not be allowed
for taking U-turn after 14 years of sale of property.
6. That surprisingly sale deed was challenged in
1986 i.e. after 14 years of sale of suit land i.e.
31.05.1972 and handing over the possession to
defendants and even then no elder brother or father i.e.
Vendor has entered in to witness box or joined as party
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in present suit. This facts itself speaks that plaintiff has
come before Ld. Court with a concocted story and
manipulated facts and tried to get wrongful gain by
claiming the sale was void since it was without necessity,
whereas in sale deed itself necessity has been mentioned.
7. That again it was not considered by the Ld. Court
below that none of the plaintiff's witness had denied that
Phul Singh was not residing with his son and since all
family members are residing with his father i.e. Phul
Singh then it is hard to believe that Phul Singh didn't
take care of the family and didn't fulfil duty of karta.
Rather Phul Singh (Vendor) was all aware of his duties
and was not a drunker and all money which he received
from sale of suit land he had spent for paying his debts
and after that he performed all his duties towards his
family. Thus plea of plaintiff is totally wrong and
frivolous where he stated that his father Phul Singh was
having bad habits and due to habit of drinking he
executed the sale deed in question.
8. That admittedly Phul Singh vendor and his eldest
son i.e. Ram Kumar didn't appear in the witness box and
only these are best evidence to prove that whether the
amount of sale deed was used for benefits of the family
or not but since none of them entered in to witness box it
can be easily presumed that case was filed with ill
motive and mal fide intention.
9. That although there are three elder brother to
plaintiff who were major at the time of sale deed, but
none of the elder brother had filed any suit qua the
authenticity of sale deed and also none of them has
entered into the witness box in the present suit. Thus it is
no wrong to infere from the conduct of plaintiff that
father and elder brother of the plaintiff were consented
to the sale deed and as per landmark judgment of
Supreme Court of India in case titled as 'Subhod Kumar
& others Vs Bhagwant Namdeorao Mehetre & others'
bearing case No. CA-1584-2004 vide order dated
25.01.2007 wherein it was held that when the Karta,
however conveys by way of imprudent transactions, the
alienation is voidable to the extent of undivided share of
non-consentive coparcener.'
Thus, even if contention raised by the plaintiff in
plaint were taken as it is, then also, plaintiff has right to
challenge the sale deed qua his share of land only and
not to the whole transaction.
10. That it is also pertinent to mention here that sale
deed was registered in 1972 and mutation no. 357 was
entered in year 1974 and same was sanctioned in year
1983 after recording the statement of Phool Singh and it
is well known fact that sanction of mutation is in hand of
revenue official who sanctioned the mutation after
statement of Phul Singh and thus vendor should not be
allowed to take U-turn after selling his property.
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11. That also EX-PW6/A was wrongly relied upon by
the Ld. Court because it was not proved to be related to
Phul Singh rather PW-6 Bhim Singh clearly admitted
that father's name of Phul Singh is not mentioned in
document EX PW-6 and he could not say as to whether
Phool Singh mentioned in document is same or not. Thus
finding on Issue no. 8 is not sustainable in the eyes of
law."
12. The operative part of the short note submitted by the learned
Senior counsel representing the respondents (plaintiffs), reads as under:-
"(5). The sale deed recites that vendor Phool Singh in
need of paper book of money.
The vendor started Chakki expeller and Shaft
Cutter.
6) The recital in sale deed is incorrect because ExP3
is the mortgage deed of 07.02.1968 wherein it has been
recited that Chakki was already in existence.
(7). Zimini Order of this Hon'ble Court dated
14.05.1990.
CM no. 253-C of 1990 in
RSA no. 193 of 1990.
Present: Mr. Y.K. Sharma Advocate for the appellants.
Mr. R.K. Gupta Advocate for the respondents.
After hearing learned counsel for the
parties, it is ordered that the execution of
the decree shall stand stayed subject to the
appellants furnishing security for mesne
profits to the executing court within two
months from today. The security will be
accepted after notice to the respondents.
But till date neither surety was furnished nor any
mesne profits were paid by the appellant (Judgment
debtor).
(8). For furnishing mesne profits Civil Misc. No. 5440-
C of 2023 was filed in the instant RSA by the
Respondents/Applicant.
Subsequently Civil Misc. No. 9863-C of 2023 in
Civil Misc. No. 5440-C of 2023 in instant RSA no. 193 of
1990 was moved to decide Civil Misc. No. 5440-C of
2023 in which notice was issued on 11.09.2023 for
20.11.2023 by this Hon'ble Court which also deserved to
be decided.
The unrebutted pedigree table of the parties is Ex
PW3/1 showing that the suit land is un-partitioned
holding coming from great great Grandfather of
plaintiff. Hence the appeal deserved to be dismissed."
13. An application under Order XLI Rule 27 of the Code of Civil
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Procedure, 1908, was filed along with the appeal with permission to
produce copy of certificate issued by the Registrar of Death and Birth to
prove that a male child was born to Sh. Phool Singh on 14.02.1963. In reply
to the aforesaid application, the plaintiff has submitted that the aforesaid
certificate does not relate to the plaintiff as grandfather's name in the
certificate is depicted as Sh. Ram Sarup, whereas his grandfather's name is
Sh. Ram Sukh. The learned counsel representing the appellants did not press
this application at the time of final arguments. Hence, no further order is
required to pass in this application.
Analysis of the reasons recorded by the First Appellate Court:-
14. The First Appellate Court's reason No.1, is erroneous because
in the registered sale deed, it has been specifically recited that Sh. Phool
Singh (vendor) received Rs.5,000/- as earnest money on 24.01.1972. Sh.
Phool Singh did not come forward to testify in the Court though he was
impeded as defendant No.3. Moreover, on a careful reading of the testimony
of PW-1 Sh. Attar Singh (plaintiff), it is evident he does not dispute that
Rs.5,000/- was never paid to his father on 24.01.1972. He has stated that
his father was drug addict and used to waste money in gambling. Hence, the
First Appellate Court's reason No.1, is not sustainable.
15. The First Appellate Court's reason No.2 is also wrong because
in the sale deed, it has been recorded that Sh. Phool Singh is required to pay
Rs.600/- to Sh. Sukhdev Raj son of Sh. Harbans. Defendant No.1 and 2
have also produced and prove copy of the attachment order dated
27.07.1961 (Ex.D-2) to prove that in the execution proceedings initiated for
recovery of Rs.980.25/-, the property of Sh. Phool Singh was attached. In
such circumstances, the failure on the part of the defendants to examine Sh.
Sukhdev Raj or any other creditor of Sh. Phool Singh would not be
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sufficient to draw adverse inference against the vendees.
16. The First Appellate Court's reason No.3 is required to be
examined in the context of documents. Defendant No.1 and 2 have
produced and proved Ex.D-3, a mortgage deed executed by Sh. Phool Singh
in favour of Sh. Jug Lal son of Sh. Gopala. In this mortgage deed, it is
recited that the mortgager (Sh. Phool Singh) requires the amount for
running his factory (flour mill) located in village Baroli. In the sale deed
executed on 29.05.1972, it is again recorded that Rs.6,000/- is repayable to
the mortgagee. In the sale deed, it is nowhere recorded that Sh. Phool Singh
requires the money for establishing flour mill or cotton ginning plant. It has
been recited in the agreement that Sh. Phool Singh requires the money for
repaying the loan in order to get the land redeemed from the mortgage and
he requires Rs.600/- for payment to Sh. Sukhdev. Thus, the oral evidence of
the vendees would not be sufficient to supersede the recitals in three
important documents namely mortgage deed, sale deed and warrants of
attachment.
17. The First Appellate Court's reason No.4 is not relevant because
even if Sh. Ram Kumar son of Sh. Phool Singh was married before
execution of the sale deed, however, this is not a reason for legal necessity
for want of money recorded in the sale deed.
18. The First Appellate Court's reason No.5 lacks substance
because after a period of 11 years is not sufficient to doubt the genuineness
of the sale deed. The revenue authorities entered and sanctioned the
mutation in order to update the government record. However, delay in
getting the mutation sanctioned does not adversely impact the validity of the
sale date.
19. Similarly, First Appellate Court's reason No.6 has no merit
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because Ex.PW6/A is an entry in the village 'Goshwara' to prove that in
August-September 1978, Sh. Phool Singh was sentenced till rising of the
Court with a fine of Rs.20/- under the 1944 Act. However, there was no
evidence to prove that Sh. Phool Singh was drunkard to the extent that he
was not able to consciously take decisions in the year 1972. Once solitary
instance of conviction and payment of fine under the 1944 Act with respect
to event of 1978 is not sufficient to prove that Sh. Phool Singh was a
habitual drunkard.
20. The First Appellate Court's reason No.7 is also incorrect on
account of the following reasons:-
i. Sh. Phool Singh has admitted the plaintiff's claim and
never came forward to testify in the Court.
ii. The plaintiff admits that he has five older brothers.
They never filed any suit challenging the sale deed.
iii. The suit was filed after a period of 14 years from the
date of the execution of the sale deed.
iv. None of the five older brothers of the plaintiff has
stepped into the witness box.
v. The plaintiff claims that he was 4-5 years of age when
the sale deed took place. Hence, the collusion between
the plaintiff and his father Sh. Phool Singh is apparent.
Conclusion:-
21. This Court has arrived at the following conclusions:-
i.) The legal necessity to execute the sale deed has been proved as Ex.D-2
is mortgage deed executed by Sh. Phool Singh with possession against loan
of Rs.6,000/- in favour of Sh. Jug Lal son of Sh. Gopala in the year 1968. It
is also proved by document Ex.D-2, that Sh. Sukhdev Raj had got Sh. Phool
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Singh's property attached in execution of the decree for recovery of
Rs.980.25/-. Hence, the assertions made in the sale deed stands corroborated
by the other evidence produced by the defendants No.1 and 2(ii). There is
another aspect of the matter. In the mortgage deed, it is recited that the loan
amount is required for running the factory, which has been established in
village Baroli. In the sale deed, the vendor has recited that he requires the
money for running his business and for repayment of the debt. It is evident
that the mortgage was with possession. Thus, the family was not getting any
return as the possession was with the mortgagee. Sh. Phool Singh was also
required to repay the loan to various persons including Sh. Sukhdev Raj. In
these circumstances, the finding of the First Appellate Court that the
vendees have not proved legal necessity, suffers from non-appreciation of
evidence in the proper perspective. Once a suit is filed challenging the sale
deed on the ground of lack of legal necessity, the vendees are required to
prove that the sale was on account of legal necessity and they made
bonafide inquiry for the same.
22. In these type of cases, the Court is also required to examine
"whether the sale deed was for valuable consideration or not?". In this case,
no evidence has been produced by the plaintiff to prove that Sh. Rajmal and
his brother (defendant No.1 and 2) did not purchase the property for
valuable consideration or the sale in their favour was not in a bonafide
manner. Defendant No.1 and 2 have led sufficient evidence to prove that the
sale deed was executed for bonafide necessity including redemption of the
mortgage and repayment of loan, at least to the extent of Rs.6,600/-.
Moreover, it is the positive recital in the sale deed that the vendor requires
the amount for his business. It has already come on record that Sh. Phool
Singh established flour mill as well as cotton ginning machine. The plaintiff
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while appearing in evidence had admitted that previously these machines
were being run with the help of an engine, which was being operated on
diesel. Subsequently, Sh. Phool Singh applied and was issued electric
connection to run the factory. What were the requirements of the business is
the exclusive domain of the vendor and the vendees were not expected to
deeply probe into the same.
23. Additionally, the suit appears to have been filed by the plaintiff
in collusion with Sh. Phool Singh as he admitted plaintiff's case and did not
come forward to testify in the suit.
24. Moreover, five older brothers of the plaintiff neither filed the
suit nor any one of them came forward to testify in the suit. The suit was
filed after a period of approximately 14 years from the date of the execution
of the sale deed. The family of the plaintiff owns a factory and as many as 8
houses. Sh. Phool Singh is not proved to be a drunkard in the year 1972.
The entry in the 'Goshwara' is with respect to the year 1978. One incident
of challan and a fine of Rs.20/- would not be sufficient to hold that Sh.
Phool Singh was drunkard, particularly when it is admitted fact that he was
running a flour mill industry and cotton ginning industry.
25. The learned Senior counsel representing the respondents has
laid much stress on the fact that the appellants have not furnished security
for mesne profit as ordered by the Court on 14.05.1990. Subsequently, the
plaintiff also filed application for directing the vendees to furnish security
for mesne profit. The failure on the part of the vendees (appellants) would
not entail dismissal of the appeal. It would have resulted in an automatic
vacation of interim order which was granted subject to appellant furnishing
security for mesne profit. However, that itself would not be sufficient to
dismiss the vendees appeal.
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26. It will be noted here that in Rani and another Vs. Santa Bala
Debnath and others, (1970) 3 SCC 722, the supreme Court in para 10 and
11 laid down as under:-
"10. Legal necessity to support the sale must however be
established by the alienees. Sarala owned the land in
dispute as a limited owner. She was competent to dispose
of the whole estate in the property for legal necessity or
benefit to the estate. In adjusting whether the sale
conveys the whole estate, the actual pressure on the
estate, the danger to be averted, and the benefit to be
conferred upon the estate in the particular insistence
must be considered. Legal necessity does not mean
actual compulsion: it means pressure upon the estate
which in law may be regarded as serious and sufficient.
The onus of providing legal necessity may be discharged
by the alienee by proof of actual necessity or by proof
that he made proper and bona fide enquiries about the
existence of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the
necessity.
11. Recitals in a deed of legal necessity do not by
themselves prove legal necessity. The recitals are,
however, admissible in evidence, their value varying
according to the circumstances in which the transaction
was entered into. The recitals may be used to
corroborate other evidence of the existence of legal
necessity. The, weight to be attached to the recitals
varies according to the circumstances. Where the
evidence which could be brought before the Court and is
within the special knowledge of the person who seeks to
set aside the sale is withheld, such evidence being
normally not available to the alienee, the recitals go to
his aid with greater force, and the Court may be justified
in appropriate cases in raising an inference against the
party seeking to set aside the sale on the ground of
absence of legal necessity wholly or partially when he
withholds evidence in his possession."
27. This judgment was subsequently followed in Gangadharan
Janardhana Vs. Mallan, (1996) 9 SCC 53.
28. In view of the aforesaid discussion, the judgments passed by
the Courts below are not sustainable. Hence, set aside. Resultantly, the
plaintiff's suit shall stand dismissed.
29. Consequently, the appeal stands allowed.
30. All the pending miscellaneous applications, if any, are also
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disposed of.
April 05th, 2024 (ANIL KSHETARPAL)
Ay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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