KEHAR SINGH (D) THR. LRS & ORS. versus NACHITTAR KAUR & ORS. on 20 August 2018

SUPREME COURT REPORTS

[2018] 9 S.C.R.

A

KEHAR SINGH (D) THR. LRS & ORS.

v.

NACHITTAR KAUR & ORS.

(Civil Appeal No. 3264 of 2011)

B

AUGUST 20, 2018

[ABHAY MANOHAR SAPRE ANDSANJAY KISHAN KAUL, JJ.]

Punjab Custom (Power to Contest) Act, 1920: Dispute betweenplaintiff-son, father and the defendants-purchaser of the suit landCfrom father – Suit for declaration that the sale deed in relation tothe suit land was not binding on the plaintiff and sale in questionwas void and does not convey any right, title and interest in favourof purchasers – Held: The sale deeds reflected the factum of familydebts – The plaintiff’s father, being a Karta of the family, had everyDright to sell the suit land belonging to family to discharge the debtliability and spend some money to make improvement in agricultureland for the maintenance of his family – Once the factum of existenceof legal necessity stood proved, then, no coparcener (son) has aright to challenge the sale made by the Karta of his family – Theplaintiff being a son was one of the coparceners along with hisEfather – He had no right to challenge such sale in the light offindings of legal necessity being recorded against him – It was moreso when the plaintiff failed to prove by any evidence that there wasno legal necessity for sale of the suit land or that the evidenceadduced by the defendants to prove the factum of existence of legalFnecessity was either insufficient or irrelevant or no evidence at all –Suit liable to be dismissed – Hindu law – Right of Karta to sellfamily property.

Dismissing the appeal, the Court

HELD: It came in evidence that firstly, the family owedGtwo debts and secondly, the family also needed money to makeimprovement in agriculture land belonging to the family. Theplaintiff’s father, being a Karta of the family, had every right tosell the suit land belonging to family to discharge the debt liabilityand spend some money to make improvement in agriculture landfor the maintenance of his family. These facts were also mentionedH

in the sale deed. A case of legal necessity for sale of ancestralproperty by the Karta was, therefore, made out on facts. In otherwords, the defendants were able to discharge the burden that layon them to prove the existence of legal necessity for sale of suitland to defendant Nos. 2 and 3. The defendants thus satisfied thetest laid down in Hindu law as explained by Mulla in Article 254(2) read with Article 241 (a) and (g). The reasoning and theconclusion arrived at by the High Court is just and proper. [Paras26, 27, 29] [993-C-F; 994-A]

Charan Singh v. Gehl Singh, 1974 PLR 125; Darshan Singh v. Ram Pal Singh & Anr., AIR 1991 SC 1654:[1990] 3 Suppl. SCR 212 – referred to Hindu law by Mulla (Article 254) – referred to Case Law Reference CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3264

of 2011

From the Judgment and Order dated 20.04.2006 of the High Courtof Punjab and Haryana at Chandigarh in Regular Second Appeal No.1734 of 1968

Ms. Jyoti Mendiratta, Gagan Gupta, Abhishek Atrey, P. N. Puri,Abhishek Puri, Ms. Reeta Dewan Puri, Advs. for the appearing parties.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed by thelegal representatives of the original plaintiff against the final judgmentand order dated 20.04.2006 passed by the High Court of Punjab &Haryana at Chandigarh in R.S.A. No. 1734 of 1968 whereby the HighCourt allowed the appeal filed by the respondents(defendants) anddismissed the suit filed by the original plaintiff.

2. In order to appreciate the factual and legal controversy involvedin the appeal, it is necessary to state the facts in detail infra.

3. The appellants are the legal representatives of the originalplaintiff whereas the respondents are the legal representatives of theoriginal defendants, who were brought on record during the pendency ofthis litigation consequent upon the death of both plaintiff and thedefendants.

A

B

C

D

E

F

G

H

A4.The dispute in this appeal is between the son, father and thepurchasers of the suit land from father. It relates to a land measuringaround 164 Kanals 1 Marla entered in rectangle No.46 Killa Nos. 8/1,19/2, 21/2, 22/2, 23, 24 and rectangle No.52, Killa Nos. 1/2, 2, 3, 4, 5, 6,7, 8, 12/1, 13, 14, 15, 16, 17, 18, 23, 24, 25 entered in Khata No.6/9Jamabandi 1957-58 at present entered in Khata No.2/2 Jamabandi 1962-B63 situated in Village Bhamian Kalan, Tehsil Ludhiana (hereinafterreferred to as “suit land” ).

5. One Pritam Singh(defendant No.1) was the owner of the suitland. He sold the suit land on 25.04.1960 by registered sale deed to TaraSingh(defendant No.2) and Ajit Singh(defendant No.3) for Rs.19,500/-.CBoth vendees namely, Tara Singh and Ajit Singh were placed in possessionof the suit land.

6. On 27.11.1964, Kehar Singh s/o Pritam Singh filed a civil suit(Case No. 429/325 of 1964) against Tara Singh and Ajit Singh in theCourt of Sub-Judge 2nd class, Ludhiana.D

7. The suit was founded inter alia on the allegations that the suitland was and continues to be an ancestral property of the family ofwhich the plaintiff is one of its members along with his father- PritamSingh, that the plaintiff’s family is governed by the custom, which appliesto sale of family property inter se family members, that the plaintiff hasEa share in the suit land along with his father- Pritam Singh as one of thecoparceners, that Pritam Singh had no right to sell the suit land withoutobtaining the plaintiff’s consent, which he never gave to his father forsale of the suit land, that there was no legal necessity of the familywhich could permit Pritam Singh to sell the suit land to defendant Nos. 2Fand 3, that the suit land and the rights of the parties to the suit aregoverned by the provisions of the Punjab Custom (Power to Contest)Act, 1920 (hereinafter referred to as “the Act” ).

8. The plaintiff prayed for a relief of declaration on theaforementioned allegations that first, the sale made by his father-PritamGSingh in favour of Tara Singh and Ajit Singh vide sale deed dated25.04.1960 in relation to the suit land be declared as not binding on theplaintiff; Second, the sale in question is void and does not convey anyright, title and interest in favour of defendant Nos. 2 and 3.

9. The defendants contested the suit. According to them, thesuit land was not ancestral one; that the parties were not governed byH

any custom; that the sale deed in question was executed for considerationand for legal necessity of the family; that the sale was made for dischargeof family debts and for improving the farming; that the defendant Nos.2& 3 are the bona fide purchasers of the suit land for consideration.

10. The Trial Court framed issues. Parties adduced their evidence.By Judgment/decree dated 17.12.1966, the Trial Court decreed theplaintiff’s suit. It was held that the suit land was an ancestral propertyand there was no legal necessity to sell the suit land.

11. Defendant Nos.2 & 3 felt aggrieved and filed first appeal(C.A. No.31 of 1967) before the first Appellate Court. By judgment/decree dated 11.06.1968, the first Appellate Court partly allowed thedefendants’ appeal and modified the judgment/decree of the Trial Court.

12. It was held by the first Appellate Court that the suit land wasan ancestral property of the family; that the parties to the suit are governedby the custom; that defendant Nos.2 & 3 were able to prove legalnecessity for the family partially to the extent of Rs.7399/- ; and lastly,the reversioners of Pritam Singh would, therefore, be entitled to getpossession of the suit land after the demise of Pritam Singh on paymentof Rs.7399/- and the sale in question would not be binding on theirreversionary interests.

13. Defendant Nos. 2 and 3 (purchasers of the suit land) feltaggrieved and filed second appeal before the High Court. During thependency of second appeal, the Punjab Custom (Power to Contest)Amendment Act, 1973 came into force w.e.f. 23.01.1973.

14. The High Court, by order dated 22.04.1974, allowed the secondappeal and dismissed the suit in view of the law laid down by the HighCourt of Punjab & Haryana in the case of Charan Singh vs. GehlSingh, 1974 PLR 125 wherein it was held that the Amendment Act of1973 was retrospective in nature and, therefore, in the light of theamendment, the plaintiff had no right to challenge the alienation made byhis father under the custom prevailing at the relevant time.

15. The plaintiff felt aggrieved and filed appeal in this Court. ThisCourt disposed of the said appeal along with other appeals involving thesimilar point (See Darshan Singh vs. Ram Pal Singh & Anr., AIR1991 SC 1654). It was held by this Court that the Amendment of 1973made in the Act is retrospective in nature and that the law laid down bythe High Court of Punjab & Haryana in the case of Charan Singh A

B

C

D

E

F

G

H

A(supra) is correct and does not need any reconsideration. It was alsoheld that since the High Court while deciding the second appeal did notexamine the question involved in the appeal in the context of principlesof Hindu Law, the matter has to be remanded to the High Court fordeciding the second appeal afresh in the light of the principles of Hindulaw. This is how the matter was remanded to the High Court for decidingBthe second appeal afresh.

16. On remand, the High Court asked the parties as to whetherthey want to lead any additional evidence to enable the High Court todecide the appeal, as directed by this Court. The parties stated that theydo not want to lead any additional evidence and the High Court couldCdecide the appeal on the basis of evidence already adduced.

17. By impugned order, the High Court allowed the appeal filedby the defendants and dismissed the suit. It was held that the suit landwas an ancestral property of the family; that Pritam Singh being a Kartahad a right to sell the suit land; that there did exist a legal necessity ofDthe family for which the suit land was required to be sold by Karta; thatthere were two debts (Taccavi loan and one private loan) on the familyand secondly the family had an agriculture land which neededimprovement; that with a view to discharge the loan liability and toundertake the improvement on the land, the Karta-Pritam Singh sold theEsuit land for valuable consideration; that these facts were duly mentionedin the sale deed in question; that the sale was, therefore, bona fide,legal and made for valuable consideration. It is, therefore, binding on theplaintiff.

18. The plaintiff felt aggrieved and filed the present appeal byFway of special leave in this Court.

19. Heard learned counsel for the parties.

20. The main question, which now survives for consideration inthis appeal, is whether the High Court was justified in holding that thesale made by defendant No.1-Pritam Singh in favour of defendant Nos.G2 and 3 was for legal necessity and, if so, whether it was legal and validsale.

21. So far as the nature and character of the suit land is concerned,it was held to be ancestral land and since no challenge was made to thisfinding, it is not necessary to examine this question in this appeal.H

KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR& ORS. [ABHAY MANOHAR SAPRE, J.]

22. Mulla in his classic work “Hindu Law” while dealing with theright of a father to alienate any ancestral property said in Article 254,which reads as under:

A

“Article 254

254. Alienation by father – A Hindu father as such hasspecial powers of alienating coparcenary property, whichno other coparcener has. In the exercise of these powershe may:

B

(1) make a gift of ancestral movable property to the extentmentioned in Article 223, and even of ancestralimmovable property to the extent mentioned inArticle 224; C

(2) sell or mortgage ancestral property, whether movableor immovable, including the interest of his sons,grandsons and great-grandsons therein, for thepayment of his own debt, provided the debt was anDantecedent debt, and was not incurred for immoral orillegal purposes(Article 294).”

23. What is legal necessity was also succinctly said by Mulla inArticle 241, which reads as under:

E

“Article 241

241. What is legal necessity- The following have been heldto be family necessities within the meaning of Article 240:

(a) payment of government revenue and of debts whichare payable out of the family property; F

(b) Maintenance of coparceners and of the members oftheir families;

(c) Marriage expenses of male coparceners, and of thedaughters of coparceners; G

(d) Performance of the necessary funeral or familyceremonies; (e)Costs of necessary litigation in recovering orpreserving the estate; A(f)Costs of defending the head of the joint family or anyother member against a serious criminal charge; (g)Payment of debts incurred for family business or othernecessary purpose. In the case of a manager otherthan a father, it is not enough to show merely that theBdebt is a pre-existing debt; The above are not the only indices for concluding asto whether the alienation was indeed for legalnecessity, nor can the enumeration of criterion forestablishing legal necessity be copious or evenCpredictable. It must therefore depend on the facts ofeach case. When, therefore, property is sold in orderto fulfil tax obligations incurred by a family business,such alienation can be classified as constituting legalnecessity.”

D(see Hindu Law by Mulla “22[nd] Edition”)

24. The High Court, after taking note of the aforementioned legalprinciples of Hindu law, dealt with this question on facts in para 12,which reads as under:

“12. In the light of the aforesaid legal position, now it hasEto be examined as to whether the defendants havedischarged their onus to prove the existence of the legalnecessity at the time of the impugned sale deed.Defendant Tara Singh, while appearing as DW 13 hasstated that amount of Rs.5,500/- was paid by him as earnestmoney, Rs.500/- was spent for payment of Taccavi loanFand registration of sale deed and Rs.934/- was paid to thevendor, about 3-4 days prior to the registration of the saledeed, for payment of Taccavi loan an amount of Rs.12,566/- was paid at the time of registration of the sale deed. DW1 Shri Gopal, who was an Assistant in the DC office,GLudhiana has stated that Pritam Singh vendor was grantedloan of Rs.3,000/- in the year 1995 and he did not pay apenny from the said loan till 20.11.1964. DW 2 Ram Dass,a tubewell mechanic has proved that Pritam Singh hadspent Rs.4,000/- for installing a tubewell in the year 1963.DW 9 Sat Pal, Additional Wasil Baqa Nawis, Ludhiana hasH

KEHAR SINGH (D) THR. LRS & ORS. v. NACHITTAR KAUR& ORS. [ABHAY MANOHAR SAPRE, J.]

proved that the vendor Pritam Singh had taken variousloans from the department for purchase of seeds bag.Rs.500/- for repair of house and Rs.2,500/- for purchasingpumping set. This witness further stated that Pritam Singhhad purchased a Rehri for Rs.1,025/- from him in the year1961. DW 11 Dalip Singh has proved that Pritam Singhhad borrowed a sum of Rs.3,000/- from him in the year1959 by executing a pronote. This witness has also statedthat Pritam Singh had performed marriage of his 5children.”

25. In our considered opinion, the approach, reasoning and theconclusion arrived at by the High Court on the question of legal necessityas to whether it existed in this case while selling the suit land by PritamSingh or not does not call for any interference as the same was rightlydealt with by the High Court while appreciating the evidence on record.

26. It has come in evidence that firstly, the family owed two debtsand secondly, the family also needed money to make improvement inagriculture land belonging to the family. Pritam Singh, being a Karta ofthe family, had every right to sell the suit land belonging to family todischarge the debt liability and spend some money to make improvementin agriculture land for the maintenance of his family. These facts werealso mentioned in the sale deed.

27. In our considered opinion, a case of legal necessity for sale ofancestral property by the Karta (Pritam Singh) was, therefore, madeout on facts. In other words, the defendants were able to discharge theburden that lay on them to prove the existence of legal necessity for saleof suit land to defendant Nos. 2 and 3. The defendants thus satisfied thetest laid down in Hindu law as explained by Mulla in Article 254 (2) readwith Article 241 (a) and (g) quoted above.

28. Once the factum of existence of legal necessity stood proved,then, in our view, no co-coparcener (son) has a right to challenge thesale made by the Karta of his family. The plaintiff being a son was oneof the co-coparceners along with his father-Pritam Singh. He had noright to challenge such sale in the light of findings of legal necessitybeing recorded against him. It was more so when the plaintiff failed toprove by any evidence that there was no legal necessity for sale of thesuit land or that the evidence adduced by the defendants to prove the

A

B

C

D

E

F

G

H

Afactum of existence of legal necessity was either insufficient or irrelevantor no evidence at all.

29. We are, therefore, of the considered opinion that the reasoningand the conclusion arrived at by the High Court is just and proper. We,therefore, concur with the view taken by the High Court calling for noBinterference.

30. In view of the foregoing discussion, the appeal fails and isaccordingly dismissed.

Devika Gujral Appeal dismissed.

C

D

E

F

G

H