CIVIL APPEAL 71 of 1982 on 13 July 1989

JUDGMENT :

.Present second appeals are arising out of the judgmentand order dated 13/07/1989 passed by the 2[nd] Additional DistrictJudge, Osmanabad in Regular Civil Appeal No. 71 of 1982 therebyreversing the judgment and decree passed by the Joint Civil Judge,Junior Division, Osmanabad dated 30/09/1981 in Regular Civil SuitNo. 193 of 1977.

2. So far as Second Appeal No. 223 of 1989 is concerned,same is preferred by the original defendant No. 1, whereas SecondAppeal No. 294 of 1992 is preferred by original defendant No. 2.

3. Defendant No. 4 claimed to be owner of the property bearing Survey Nos. 6/2, 97/C, Grampanchayat House No. 26 and3/4th share in Survey No. 5/2 situated at village Gaosud, TalukaOsmanabad.

4. Plaintiff Nos. 1 and 2 are sons of defendant No.4,whereas plaintiff No. 3 was his wife.

5. It is the case of the plaintiffs before the trial Court that, allof them are members of the joint Hindu family and were stayingjointly and the properties mentioned herein above are joint familyproperties. It is further alleged that, defendant No. 4 since hadaddicted to bad vices and as such, sold 1 Acres 38 Gunthas landfrom Survey No. 97/C to defendant No. 1 on 17/12/1958.

6. Defendant No. 4 further sold some of the land out ofSurvey No. 5/2 to defendant No. 2 vide sale deed dated 19/07/1975.It is further alleged that, defendant No. 4 alongwith his brother soldone house to defendant No. 3.

7. It is the case of plaintiffs that as the transactions in question were made without legal necessity and not for the benefit ofthe members of the joint family, the said sale deeds are not bindingon the plaintiffs as at the time of transactions by defendant No. 4,plaintiff Nos. 1 and 2 were minor. The plaintiffs demanded theirshares in the suit properties through suit for partition and separatepossession of their shares in the suit properties, so also fordeclaration that the sale deeds referred supra are not binding onthem.

8. Defendant No.1 filed his written statement at Exhibit-33,wherein he has stated that plaintiff Nos. 1 and 2 were born when thetransaction dated 17/12/1958 took place in his favour. According tohim, plaintiff No.1 was born on 01/06/1968. It is further claimed bydefendant No.1 that the income received out of sale transaction wasspent on maintaining the family, buying bullocks and satisfying thedebts, as the income received from agricultural property was notenough to maintain the family.

9. So far as defendant No. 2 is concerned, he filed hiswritten statement at Exhibit-34 and denied the claim of the plaintiffsthat defendant No. 4 was addicted to bad vices. According to him, asdefendant No. 4 was not able to maintain his family from the incomeof the land shown in the schedule, same has prompted him to sell theland in question. It is also denied by him that defendant No. 4 wasnot addicted to gambling and drinking. It is further claimed that saledeed was executed on 22/12/1974 in his favour for consideration ofRs. 3000/-. As such, prayed for dismissal of the suit.

10. The pleadings are restricted to defendant Nos. 1 and 2as the appeals are at the behest of defendant Nos. 1 and 2.

While countering the above referred claim, defendant

No. 4 in his written statement at Exhibit-47 has admitted that the suitproperties in question are joint family properties and the income fromjoint family properties is sufficient to maintain his family. According tohim, plaintiff No.1 was born on 17/12/1958, as his date of birth was31/12/1956 and not on 01/06/1958 as alleged by defendant No. 1.Defendant No. 4 then has gone on record to give admission that hewas addicted to bad vices. He has also admitted that thetransactions in question were not for legal necessity, as according tohim, at the relevant time, there was no loan or Government dues asagainst him.

12. In the light of rival claims, learned trial Court framedissues at Exhibit-42, which reads thus :

Issues

(1) Are the Plaintiffs Nos. 1 and 2 the members of Joint family and they are entitled to challenge sale deed dated 17[th] December 1958?

(2) Do Plaintiff prove that Defendant No. 4 was addicted to vices as alleged?

(3) Is the suit barred by limitation?

(4) Is the suit valued properly for court fees?

(5) Are Plaintiffs entitled to relief claimed?

(6) Relief and order?

Findings on the above mentioned issues are as under:

(1) Yes.

(2) No.

(3) Yes.

(4) Yes.

(5) Only to S.No. 6/2.

(6) As per order.

Additional Issues

(7) Does Defendant No.1 prove that, Plaintiff No.1 was

Issues

not born at the time of his transaction as alleged in his written statement?

(8) Do the Defendants prove that the alienation which the Def3endant No.4 made in their favour was for legal necessity and therefore binds the Plaintiffs right?

(9) Does Defendant No. 3 prove that the suit house is the self acquired property of Defendant No. 4?

Findings on the above stated additional issues are as under :

(8) Yes.

(9) No.

13. Learned trial Court having noticed that plaintiff No. 1 wasnot born on the date of execution of the sale deed and since sale infavour of defendant No. 1 by defendant No. 4 was for legal necessity,as such, granted declaration that the sale deed is binding on theplaintiffs. Learned trial Court answered the issue as regards jointfamily of the plaintiffs in favour of plaintiffs, however, negated theclaim of the plaintiffs that defendant No. 4 was addicted to bad vices.The trial Court also noticed that the suit was barred by limitation andthe suit was under valued.

Learned trial Court having noticed that plaintiff No. 1 was

14. Learned trial Court accordingly partly allowed the suitgranting share in favour of the plaintiffs from Survey No. 6/2 to theextent of 3/4th share and decreed the suit for partition.

Learned trial Court accordingly partly allowed the suit

15. In the appeal by present appellants i.e. Regular CivilAppeal No. 71 of 1982, preferred by plaintiffs in the Court ofAdditional District Judge, Osmanabad, learned lower appellate Court,having regard to the grounds and pleadings raised in the appeal, hasframed the points for its consideration and negated the claim ofdefendant Nos. 1 to 3 as regards, as according to the said findings, said sale was not for legal necessity and as such, sale deed is notbinding on the plaintiffs. Learned lower appellate Court also negatedthe point of limitation and answered the same in favour of theplaintiffs. According to lower appellate Court, the plaintiffs wereentitled to the decree for partition and separate possession, whichhas prompted lower appellate Court to pass the order on 13/04/1989which reads thus:

The appeal is allowed.

The judgment and decree passed by the lowercourt is set aside. The suit of the Plaintiffs-Appellantsis decreed with costs against the Defendants. ThePlaintiffs are entitled for partition and separatepossession of their 3/4th share in the half portion ofland Survey No. 6/2, half portion of land Survey No.97/C, half portion of house bearing Gram PanchayatHouse No. 26 and 3/4th share in the entire land SurveyNo. 5/2 of village Gaosud taluka Osmanabad, it ishereby declared that the alienation made by theDefendant No. 4 in favour of the Defendant Nos. 1 to 3in respect of land Survey No. 97/C, 5/2 and the housebearing Gram Panchayat House No. 26 of the villageGaosud taluka Osmanabad is not binding on theshares of the Plaintiffs in the suit properties.

The Collector Osmanabad is appointed as aCommissioner to effect the partition of suit lands to theextent of their 3/4th share in the half portion of landSurvey No. 6/2, half portion of land Survey No. 97/C

and 3/4th share in the entire land Survey No. 5/2 ofvillage Gaosud taluka Osmanabad, as per section 54of the Code of Civil Procedure. The courtCommissioner be appointed in execution for effectingthe partition of the suit house to the extent of their3/4th share in the half portion of Gram PanchayatHouse No. 26 of village Gaosud taluka Osmanabad.An enquiry be held as per Order XX rule 12(1)(c) of theCode of Civil Procedure.

Decree be drawn accordingly.

16. In view of the judgment of the Additional District Judge,Osmanabad in Regular Civil Appeal No. 71 of 1982, set aside thedecree passed by learned trial Court and decreeing the suit of theplaintiffs against the defendants granting entitlement of partition andseparate possession to the extent of 3/4th share in the half portion ofSurvey No. 6/2, half portion in Survey No. 97/C, half portion ofGrampanchayat House No. 26, and 3/4th share in the entire landSurvey No. 5/2 of village Gaosud, Taluka Osmanabad and bydeclaration that alienation made by defendant No. 4 in favour ofdefendant Nos. 1 to 3 in respect of land Survey No. 97/C and 5/2 andGrampanchayat House No. 26 are not binding on the share ofplaintiffs. Present appellant Nos. 1 and 2 preferred above referredsecond appeals respectively.

23/09/2004 and came to be dismissed by this Court. The factremains that other two second appeals i.e. Second Appeal Nos. 294of 1992 and 258 of 1992 were not tagged and heard with the saidSecond Appeal No. 223 of 1989 though cognate appeals arising outof one and the same judgment should have been heard together.The same has prompted the parties to prefer review which came tobe allowed on 01/10/1989 and the judgment of dismissal of SecondAppeal No. 223 of 1989 came to be set aside, by an order dated23/09/2004.

18. The order in review appears to be subject matter ofS.L.P. (Civil) No. 32885 of 2009, however said S.L.P. came to bedismissed, as such, the appeals are heard together. It is not indispute that Second Appeal No. 258 of 1992 was already dismissedfor want of prosecution and no steps were taken for restoration of thesame, hence present two appeals are heard together and decided bythis common judgment.

19. It is informed at bar by the parties to the present appealsthat the appeal by defendant No. 3 was dismissed for nonprosecution and no steps were taken for its restoration since long.

Having heard the learned Counsel for the appellants and learned Counsel for the respondents, learned Counsel for theappellants would urge that the suit in question initiated by theplaintiffs was collusive suit, as apparent from the fact that the suitwas supported by defendant No. 4. According to the appellants, theclaim in the suit was hit by the provisions of Limitation Act and boththe sisters of the plaintiffs namely Shobha and Mangal were notbefore the trial Court and the suit should have been dismissed fornon joinder of necessary parties.

21. According to the appellants, sale in question was provedto be for legal necessity. The plaintiffs were born after transaction inquestion. In addition to above, learned Counsel for the appellantswould urge that though there was no prayer for enquiry and paymentof mesne profits, however, the lower appellate Court, in exercise ofits jurisdiction, has proceeded to grant the same and as such,according to him, the appeals are liable to be allowed.

22. While countering the above referred submissions,learned Counsel for the respondents-original plaintiffs and that ofdefendant No. 4 supported the judgment delivered by the lowerappellate Court. According to him, having regard to the fact that theproperty in question was joint family property and parties were joint inmess, defendant No. 4 for satisfying his own needs of gambling and drinking, has sold the property, which would established throughcogent evidence. According to respondents, sale deeds were rightlyheld to be not binding on the plaintiffs and decree passed by thelower appellate Court, as according to them, decree was for partitionand separate possession, was rightly passed by ignoring the saledeed in favour of original defendants.

23. Having considered the rival contentions of the parties,this Court is required to be looked into question of law as regardswhether the sale in question was for legal necessity and whether thesuit is barred by limitation?

24. In the present case, the execution of the sale deeds bydefendant No. 4 in favour of present appellant vide Exhibits-89, 95and 79 are not in dispute.

25. Defendant No. 1 in his evidence has brought on recordthat since defendant No. 4 was in need of money to purchase pair ofbullocks for cultivating his field, so also for the payment of loan andas such, defendant No. 4 has decided to dispose of part of the landfrom Survey No. 79/C. It is required to be noted that the sale deeddated 17/12/1958 executed by defendant No. 4 in favour of theappellant for area of 1 Hector 38 Guntha for which initially consideration of Rs.300/- was paid on 27/10/1957 when thepossession was handed over to the appellant. Similar appears to becase the appellant in another appeal who has purchased the landarea of 38 Guntha out of Survey No. 5/2 pursuant to the Isar pawatidated 22/11/1974 and sale deed dated 19/04/1975.

26. If the above referred evidence, which is brought onrecord by the present appellant is analyzed in the background ofburden that was on the appellant to prove that the transaction oftransfer of property was for legal necessity, it is required to be notedthat the said burden was not discharged by present appellant-defendant by adducing enough evidence so as to prove that at therelevant time, defendant No. 4 was in debt incurred because offinancial constraints and so as to maintain his family, he was requiredto sell the property for legal necessity. Perusal of the evidence thatwas brought on record by the present appellant does not reflect toestablish the case as regards dire need of defendant No. 4 at therelevant time to sell the property so as to satisfy the debt.

27. Admittedly, in the present case, the alienation that wasmade by defendant No. 4 was in the capacity of Karta of joint Hindufamily. Such transfer of property of Joint Hindu family may besubjected to legal scrutiny, provided the claim is established in accordance with law. The evidence of appellant is also silent on theaspect as to the nature of inquiry that was made by them prior topurchase of part of joint Hindu family property. The appellant has notexamined single witness so as to establish his case that the propertywas purchased after due inquiry. It is also not brought on record asregards indebtedness of defendant No.4 which compelled him to sellthe property in question to appellant herein.

28. The degree of proof that is required to consider so as todischarge the burden of sale for necessity by the appellant isrequired to be reasonable and bonafide. In the present case, but forthe defence raised to that effect, nothing is elicited in the evidence ofthe defendant-appellant so as to establish the said case. Merely therecitals in the conveyance, that too vague recitals that amount wasrequired by defendant No. 4 for satisfying his debt cannot be readdown and stretch to the extent of benefit of present appellant, so asto infer that the appellant has discharged his burden so as toestablish the case of sale for necessity. The claim that sale deed hastaken place on 17/12/1958 which was preceded with agreement tosell on 27/12/1957 will be of hardly any assistance to the appellant-defendant, particularly in the background of provisions of Section 54of the Transfer of Property Act. Under Section 54 of the Transfer ofProperty Act, the agreement of sale does not create any interest in the property of the party to the said agreement and ownership in theproperty transfered by means of deed of conveyance only, since thealienation had taken place on 17/12/1958, the claim of limitation assuch also fails.

29. The appellant has relied upon the judgment of the ApexCourt in the matter of Sunder Das and others vs. Gajananrao andothers reported in AIR 1997 SC 1686, particularly paragraph-11 ofthe said judgment, which deals with the alienation of the joint Hindufamily property by Karta, however, it is required to be noted that thefacts about the said case and present case are altogether different. Itis required to be noted herein that the present appellant has failed todischarge the burden of proving that the sale was for necessity.

30. The other contentions as regards sisters have not beenjoined as party to the suit, in my opinion, does not need anyconsideration in view of the fact that the claim as is brought againstthe present appellant is only to the extent of setting aside of saledeed.

31. The said issue was also not raised by the appellantbefore the Court below. Hence, said contentions are also rejected.

32. In view thereof, the case that is sought to be canvassedby the present appellant that the appellant has discharged his burdento establish the case of sale for legal necessity by defendant No.4 isliable to be rejected as the appellant has utterly failed in establishingthe said case.

33. The another submission of learned Counsel for thappellant as regards the suit being barred by limitation is concerned,it is required to be noted that plaintiff No. 1 was born on 01/06/1958which fact was disputed by the appellant, as according to him,plaintiff No.1 was born on 31/12/1958. The sale in question which isobjected is dated 17/12/1958 and as such, before the birth of plaintiffNo.1, sale in question was effected. So as to establish the date ofbirth of plaintiff No.1, the plaintiffs have produced school leavingcertificate of plaintiff No.1 so as to demonstrate the correct date ofbirth and has examined one Mr. Motilal, headmaster of primaryschool where plaintiff No. 1 took education. The said witness Motilalhas produced relevant register in which the name of plaintiff No.1could be noted at Serial No. 88 wherein the date of birth is mentionedas 01/06/1958 to establish that plaintiff No.1 was born on 01/06/1958and not on 31/12/1958. It is required to be noted here that the saidregister is of the school maintained by statutory authority i.e. ZillaParishad and the plaintiff rather has adduced evidence to demonstrate his case as regards his date of birth as31/12/1958.Once the fact about said date of birth of plaintiff No.1 isdenied by the appellant herein, he was duty bound to bring on recordabout correct date of birth. It is noted in the present case that theappellant herein has failed to place on record any evidence so as tosubstantiate his claim that the date of plaintiff No.1 was 31/12/1958and not 01/06/1958.

34. Both the Courts below have appreciated the saidevidence and have given findings of fact on the said issue.

35. In my opinion, the case as is sought to be canvased bythe present appellant so as to submit that the suit was not withinlimitation is also, in view of above, liable to be rejected.

36. As such, present second appeals, which are devoid ofmerit, fail, same stand dismissed.

[ N.W. SAMBRE, J. ]