Rajasthan High Court - Jodhpur

Achal Prakash vs Labh Chand And Ors (2024:Rj-Jd:41784) on 10 October, 2024

Author: Rekha Borana

Bench: Rekha Borana

[2024:RJ-JD:41784]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                   S.B. Civil Second Appeal No. 170/1993

1. अचलप्रकाश पत्र
              ु मोहनलाल,
2. स्व. विरे न्द्र कुमार पुत्र मोहनलाल के कायम मुकामानः-
2/1. श्रीमती हेमालता पत्नी स्व. विरे न्द्र कुमार,
2/2. विकास पुत्र स्व. विरे न्द्र कुमार,
2/3. दिव्या पुत्री स्व. विरे न्द्र कुमार,
2/4. मोहित पुत्र स्व. विरे न्द्र कुमार, उम्र 10 वर्ष, नाबालिग जरिये कुदरती वलिया
माता श्रीमती हे मालता पत्नी स्व. विरे न्द्र कुमार जातियान-ब्राह्मण, निवासी-ब्रह्मपुरी,
महामंदिर, जोधपुर। हाल निवासी-जैसलमेर (राज.)


                                                                          ---Appellants
                                            Versus


1. स्व. श्री लाभचन्द के कायम मुकामानः-
1/1. नरे न्द्र आर्य पुत्र स्व. श्री लाभचन्द, जाति श्रीमाली ब्राह्मण के कायम मुकामान-
1/1/1. महे न्द्र कुमार पत्र
                        ु स्व. नरे न्द्र आर्य,
1/1/2. सुरेन्द्र कुमार पुत्र स्व. नरे न्द्र आर्य,
1/1/3. महे श कुमार पत्र
                    ु स्व. नरे न्द्र आर्य,
1/1/4. श्रीमती चन्द्रा पुत्री स्व. नरे न्द्र आर्य, पत्नी घनश्याम शर्मा,
1/1/5. श्रीमति मीना पुत्री स्व. नरे न्द्र आर्य, पत्नी आनन्द त्रिवेदी, सभी जातियान-
श्रीमाली ब्राह्मण, निवासी ब्रह्मपुरी, महामन्दिर, जोधपुर।
2. मोहनलाल पुत्र मघदत्त, जाति दवे श्रीमाली ब्राह्मण, निवासी ब्रह्मपुरी, महामन्दिर,
जोधपुर।
                                                                        ---Respondents


For Appellant(s)                  :    Mr. Jitendra Chopra
For Respondent(s)                 :    Mr. M.K.Trivedi



                HON'BLE MS. JUSTICE REKHA BORANA

Order

10/10/2024

1. The present Second Appeal pertains to the category of

'Specifically Fixed Matters'.

2. The present second appeal has been preferred against the

judgment and decree dated 11.01.1993 passed by the Additional

[2024:RJ-JD:41784] (2 of 8) [CSA-170/1993]

District Judge No.2, Jodhpur in Civil First Appeal No.105/1986

whereby the judgment and decree dated 16.04.1984 passed by

the Additional Munsif and Judicial Magistrate No.2, Jodhpur in Civil

Original Suit No.405/1981 had been reversed. Vide the judgment

and decree dated 16.04.1984, learned Trial Court decreed the suit

for cancellation of sale-deed dated 21.09.1971 in favour of the

plaintiffs and cancelled the sale-deed in question. However,

learned First Appellate Court, while allowing the appeal preferred

on behalf of defendant No.1 Labhchand, set aside the said

judgment and decree.

3. While admitting the present second appeal on 23.07.1997,

four substantial questions of law were framed, which have been

referred to in the subsequent paras.

4. The facts are that a suit for cancellation of sale-deed dated

21.09.1971 was filed on behalf of the plaintiffs with an averment

that vide the said sale-deed, the residential house of the plaintiffs

was sold out by their father Mohanlal (defendant No.2) to

Labhchand (defendant No.1) without permission of the Court,

which was essential in terms of Section 8 of the Hindu Minority

and Guardianship Act, 1956 (hereinafter referred to as 'the Act of

1956'). It was submitted that the house in question is an ancestral

property, in which the plaintiffs too had a share and their father

could not have sold out the said property without the

permission/leave of the Court, as the plaintiffs were minors at that

point of time. It was further averred that there was no legal

necessity or any antecedent debt because of which defendant

No.2 was required to sell out the property.

[2024:RJ-JD:41784] (3 of 8) [CSA-170/1993]

With the said submissions, it was prayed that the sale-deed

dated 21.09.1971, being in contravention of Section 8 of the Act

of 1956, be cancelled.

5. The case of defendant No.1 Labhchand, the purchaser, was

that firstly, the property was a self-acquired property of Mohanlal

and secondly, the property was sold out by Mohanlal as Karta of

the joint Hindu family to repay the debt owed by him to one

Karamjeet. The property been sold out to repay a legal debt did

not require any permission of the Court and was perfectly valid.

6. Written statement was filed by defendant No.2 Mohanlal

also, wherein he averred that he intended only to mortgage the

property but defendant No.1, in collusion with Karamjeet, got the

sale deed executed. He further averred that the amount as

received from the said mortgage/sale was not utilised for the

benefit of the family or the estate.

However, no evidence was led by the defendant No.2 in

support of his pleadings.

7. On basis of the pleadings as made by the parties, the

learned Trial Court framed the following seven issues :

1- vk;k oknxzLr edku ekSjrh gksus ls la;qDr ifjokj dh laifr gS\ 2- vk;k oknxzLr edku esa oknhx.k dh gd o fgLlk gS\ 3- vk;k izfroknh la[;k 2 Jh eksguyky ds vdsys dks oknxzLr edku fnukad 21-09-71 dks izfroknh la[;k 1 ykHkpan dks cspus dh dksbZ vf/kdkj ugha Fkk\ 4- vk;k oknxzLr edku dk cspku fnukad 21-09-71 oknhx.k ds bUVªsLV ds fo#/k gksus ls voS/k gS\ 5- vk;k izfroknh la[;k 2 dks oknhx.k dk ukckfyxku dh rjQ ls cspku djus ls ifgys l{ke U;k;ky; ls vuqefr ysuk vko";d Fkk\ 6- vk;k izfroknh la[;k 1 oknhx.k ls dEisUlVjh dksLV : 1000@& ikus dk vf/kdkjh gS\

[2024:RJ-JD:41784] (4 of 8) [CSA-170/1993]

7- oknjlh\

8. Substantial questions No.1 & 3 as framed in the present

second appeal are as under :

"1 Whether the finding recorded by the learned trial court

to the effect that the sale-deed executed by Mohan Lal,

was not to pay the antecedent debt of father has been set

aside by the learned first appellate court without meeting

cogent and convincing reasons given by the learned trial

court?

3. Whether the plaintiff-appellants being minors have

legal justification to get the sale-deed declared void

within the meaning of Section 8 of the Hindu Minority

and Guardianship act, which was executed on their

behalf without obtaining permission of the Court?"

9. While discussing the evidence led by the parties on the

aspect whether the sale-deed was executed by Mohan Lal to pay

his antecedent debt, the learned Trial Court observed that

Mohanlal as well as Karamjeet in their cross-examination, could

not point out any reason as to why the debt was taken by

Mohanlal and as to what was the need which necessitated

Mohanlal to sell out the property. Learned Trial Court therefore,

concluded that it could not be proved by defendant No.1 that the

property was sold out for the benefit of the minors or their estate.

10. Learned First Appellate Court, while reversing the said

finding, relied upon the statements of Karamjeet, who not only

appeared in the witness box but also got exhibited the receipt for

[2024:RJ-JD:41784] (5 of 8) [CSA-170/1993]

an amount of Rs.2,660/- (Exhibit-A2), vide which, the debt of

Rs.2,660/- was repaid by Mohonlal to him. Learned First Appellate

Court specifically observed that the said receipt was of 22.09.1971

i.e. of very next date of the date of sale deed i.e. 21.09.1971. The

said receipt specifically mentioned the property to be mortgaged

with Karamajeet and after repayment of the due amount, the

original title deed was handed-over to Mohanlal by Karamjeet. The

Court specifically observed that the said evidence remained

uncontroverted and by leading the said evidence, defendant No.1

specifically discharged his burden to prove that the property was

sold out by Mohanlal to repay his antecedent debt.

11. On the aspect whether any permission of the Court was

required before executing the sale deed, learned First Appellate

Court, while relying upon the judgment in re: Krishnakant

Maganlal; AIR 1961 Gujarat 68, concluded that no permission

of the Court was required for such sale as it was nowhere the case

of the plaintiffs that the sale was made for any illegal purpose or

was not for repayment of any antecedent debt.

12. In the specific opinion of this Court, the finding as recorded

by the learned First Appellate Court was totally in consonance with

law and in conformity with the settled position of law. As held by

the Hon'ble Apex Court in the case of Maya Devi Vs. Lalta

Prasad; AIR 2014 SC 1356, in a case of alienation of joint Hindu

property by the father, the condition which must be satisfied is

that the father acted like a prudent man and did not dispose off

the property for an inadequate consideration. Further, as observed

by the Hon'ble Apex Court in the case of Sunil Kumar and Anr.

Vs. Ram Parkash & Ors.; AIR 1988 SC 576, a father, Karta, in

[2024:RJ-JD:41784] (6 of 8) [CSA-170/1993]

addition to the power of alienation has also the special power to

sell or mortgage ancestral property to discharge his antecedent

debt which is not tainted with immorality. The above view also

finds support from the Hon'ble Apex Court judgment in the case of

Prasad and Ors. Vs. V. Govindaswami Mudaliar and Ors.;

AIR 1982 SC 84, wherein it was specifically held that the father

in a joint Hindu family may sell or mortgage the joint family

property including the sons' interest, to discharge a debt

contacted by him for his own personal benefit and such alienation

binds the sons provided :(a) the debt was antecedent to the

alienation and (b) it was not incurred for an immoral purpose.

13. In view of the above settled position of law, it been proved

on record that the debt in question was an antecedent one and

the property was sold out by the father to repay the said

antecedent debt and not for any immoral purpose, the plainitffs

being the sons of Mohanlal, were definitely bound by the sale in

question and requirement as laid down in Section 8 of the Act of

1956 to seek permission of the Court, would definitely not apply.

Both questions No.1 & 3 as framed are therefore, answered

in the above terms.

14. Substantial question No.2 as framed in the present second

appeal is as under :

"2. whether the first appellate court committed a substantial error

of law and procedure in holding that Mohan Lal was indebted to

Karamjeet Singh to the extent of Rs.2660/- and the sale

consideration was paid to Karamjeet Singh, if so its effect?"

[2024:RJ-JD:41784] (7 of 8) [CSA-170/1993]

The finding as arrived by the learned First Appellate Court to

the effect that Mohanlal was indebted to Karamjeet to the extent

of Rs.2,660/- also does not deserve any interference as the said

fact was admitted by Mohanlal himself in his written statement.

Further, the fact of Karamjeet owing the amount to Mohanlal was

not disputed even by the plaintiffs.

Question No.2 as framed, is hence, answered in above

terms.

15. Substantial question No.4 as framed is as under :

"4 Whether the learned first appellate court has committed

substantial error of law in shifting the burden of proof on the

plaintiff-appellants to show that the ancestral property was not

sold for legal necessity and for repayment of antecedent debt?"

A bare perusal of the judgment dated 16.04.1984 as passed

by the learned Trial Court makes it clear that burden of proof qua

issues No.1 to 5 was laid on the plaintiffs. It was the learned Trial

Court and not the First Appellate Court, which laid the burden qua

the said issues on the plaintiffs. Further, no objection to the said

aspect was ever raised by the plaintiffs before the learned Trial

Court. Therefore, it cannot be concluded that the learned First

Appellate Court shifted the burden on the plaintiffs appellants to

show that the ancestral property was not sold for legal necessity

and for payment of antecedent debt.

Question No.4 is hence, answered as such.

16. In view of the above observations, this Court does not find