First Appeal No.30 of 1988

10th February, 1995

Petitioner Counsel: Shri N.B.SHAH
Respondent Counsel: Shri R.V.DESAI

JUDGMENT

PENDSE,J. : The original plaintiff has preferred this appeal to challenge judgment and decree dated January 27, 1987 passed by Civil Judge, Senior Division, Dhule dismissing Special Civil Suit No.64 of 1983. The suit was instituted by plaintiff through his guardian mother challenging the sale-deed executed by respondent No.2 in favour of respondent No.1 on May 6, 1978 on the ground that there was no legal necessity for respondent No.2 to dispose of the property.

The land in dispute is part of Gat No.36, situated at Village Bhirud in Dhule Taluka of Dhule District and admeasures 16 acres. The land is Jirayat land and belonged to respondent No.2 who was karta of the joint family consisting of Popat, his wife Vimalbai, his minor son Vijay, who is the plaintiff, and two daughters Prabhavati and Shakuntala. On November 27, 1975, Popat executed agreement of sale (Exh.66) for sale of 16 acres of land out of Gat No.36 for total consideration of Rs.20,000/-. The part payment of Rs.8,000/- was made by cheques. The agreement of sale recites that possession was handed over to respondent No.1. The sale-deed was executed by respondent No.2 on May 6, 1978 and the registered sale-deed is at Exh.67. The sale-deed recites that the land was sold for marriage expenses of daughters of respondent No.2 and for repayment of loan secured as well as the expenses to be incurred for agricultural operations. The plaintiff was born in year 1976 and was hardly two years old at the time of execution of sale-deed. The plaintiff through his guardian mother filed suit on September 29, 1983 to challenge the legality of the sale-deed on the ground that there was no legal necessity for respondent No.2 to dispose of the property in which the minor has interest.

2. The suit was resisted by the respondent No.1 claiming that there was legal necessity for respondent No.2 to dispose of the part of the land of Gat No.36. The respondent No.1 claimed that the financial condition of respondent No.1 was deteriorating from time to time and respondent No.2 was required to dispose of the property for celebrating the marriages of his two daughters, for the medical expenses of his mother and even for the funeral expenses of his mother. The respondent No.2 filed written statement and adopted the contentions raised by respondent No.1. On these pleadings, the Trial Judge framed the requisite issues and the parties led evidence, both oral and documentary. The plaintiff's guardian mother Vimalbai entered the witness-box and examined two other witnesses Bhikanlal and Bhoju to suggest that the consideration paid by respondent No.1 was inadequate. The respondent No.1 entered the witness-box and examined Shamji who was attesting witness, both for agreement of sale (Exh.66) and sale-deed (Exh.67). The Trial Judge, on consideration of evidence, came to the conclusion that the suit property was joint family property and there was legal necessity for respondent No.2 to alienate the property in favour of respondent No.1. The Trial Judge held that in view of evidence on record, the transaction of sale is binding on the plaintiff. The Trial Judge also held that the suit was barred by law of limitation. On the strength of this findings, the Trial Judge dismissed the suit and that has given rise to the filing of the present appeal.

3. Shri Shah, learned counsel appearing on behalf of the appellant, submits that the finding of the Trial Judge that the suit was barred by law of limitation is clearly erroneous. The submission is correct. The Trial Judge was in error in holding that the suit was governed by Article 58 of the Limitation Act which provides that the time to obtain declaration is three years when the right to sue first accrues. The Trial Judge overlooked that the plaintiff being a minor, the right to sue remains postponed and the suit even after a period of three years from the date of execution of sale-deed was perfectly within limitation. Shri Shah then submitted that the finding of the Trial Judge that the respondent No.1 established the existence of legal necessity is not correct. It is not possible to accede to the submission of the learned counsel.

Vimalbai, the guardian mother of the plaintiff entered the witness-box. Vimalbai did not even claim that her relations with respondent No.2 were not cordial. Vimalbai's only grievance was that the respondent No.2 was not carrying any occupation and the land was sold without consulting Vimalbai. Vimalbai admitted in evidence that from year 1962 onwards the financial situation of the family went on deteriorating. Vimalbai also admitted that respondent No.2 was disposing of the utensils from year 1962-63 onwards when there was a famine in Dhule District. Vimalbai further stated that when her mother-in-law died in the year 1975, the respondent No.2 was required to dispose of the house at Village Shirud for a consideration of Rs.1,000/- to bear the funeral expenses. Vimalbai admitted that her daughter Prabhavati was married in the year 1976 and her another daughter Shakuntala was married in the year 1981. From the testimony of Vimalbai, it is apparent that the financial condition of the family was deteriorating from time to time and the respondent No.2 was badly in need of money to celebrate the weddings of his two daughters. It is clear that the family was required to dispose of the house for Rs.1,000/- to meet funeral expenses. These facts coupled with specific averment in the sale-deed that respondent No.2 was in need of money for repayment of loans secured and meeting the expenses for agricultural operations are sufficient to establish that there was legal necessity for respondent No.2 to dispose of the part of land held by his family.

4. Shri Shah, learned counsel appearing on behalf of the appellant, vehemently contended that on April 29, 1976 the respondent No.2 had entered into an agreement of sale (Exh.89) for sale of 7 acres of land out of Gat No.36. The learned counsel submitted that Rs.4,000/- was paid to respondent No.2 as part payment and that amount was paid by Vimalbai in accordance with the endorsement made on Exh.89 and the agreement was cancelled. Shri Shah submitted that agreement (Exh.89) was in the nature of a mortgage or a security for repayment of loan and that loan having been repaid by Vimalbai, there was no occasion for respondent No.2 to execute the sale-deed. The submission overlooks many salient features of the case. In the first instance, Vimalbai was unable to explain from where she secured an amount of Rs.4,000/- save and except claiming that the amount was paid by her brother. Her brother was not examined at the trial. The contention of Shri Shah that the agreement dated April 29, 1976 was cancelled by payment of Rs.4,000/- on February 15, 1978 and therefore it must be concluded that there was no legal necessity for execution of the sale-deed on May 6, 1978, cannot be accepted. There is no explanation whatsoever as to why the agreement dated November 27, 1975 and which ultimately resulted into a sale-deed was not cancelled. Shri Shah tried to contend that Vimalbai was not aware of agreement dated November 27, 1975. It is impossible to accede to the submission. The agreement of sale is attested by several persons in authority in the village and in addition, it is signed by the father of Vimalbai, who is working as Nazir in Dhule Court. It is impossible to believe that when father of Vimalbai had signed the document of sale as attesting witness, Vimalbai would not be aware of the same. There is one more circumstance which cannot be ignored. The respondent No.1 was put in possession in pursuance of the agreement of sale and that fact is recited in the document itself. Vimalbai did not dispute that she became aware of the transaction of sale in the year 1978 and in spite of the fact, no action was taken by her till year 1983. Though Vimalbai claimed in the plaint that notices were issued to the respondents, the same were not produced on record. As there is no valid explanation as to why the agreement of sale dated April 29, 1976 was cancelled but not the earlier agreement dated November 27, 1975, it is obvious that the contention of Shri Shah that there was no legal necessity, cannot be accepted.

The evidence of Vimalbai clearly establishes that one of the daughters of respondent No.2 was married in the year 1976. The evidence also establishes that the second daughter was married in the year 1981. Vimalbai herself admitted that in year 1975, the house was sold to meet the funeral expenses of respondent No.2 mother. This evidence coupled with the statement of Vimalbai in the witness-box that the financial condition of the family was deteriorating and respondent No.2 was required even to sell the utensils is sufficient to uphold the finding recorded by the Trial Judge that respondent No.1 established the legal necessity.

5. Shri Shah made a faint submission to urge that the consideration paid by respondent No.1 for purchase of an area of 16 acres is inadequate and that indicates that the sale-deed was not for legal necessity. It is not possible to entertain the contention because the sale-deed is not challenged on the ground of inadequacy of price or that the nature of transaction was not a sale but merely a mortgage or as a security for repayment of the loan. The sale-deed is challenged on the ground that the respondent No.2 has alienated the property without legal necessity. Apart from this consideration, the evidence clearly indicates that the price of Rs.20,000/- paid for purchase of 16 acres of Jirayat land is not inadequate. The land is situated at a place where rain is a novelty and in such circumstances, it is futile to urge that the price was inadequate. Vimalbai, save and except asserting that the income was to the extent of Rs.5,000/- p.a. did not produce any record to substantiate the same. In our judgment, the challenge to the sale-deed is without any merit and the Trial Judge was justified in dismissing the suit. The decision of the Trial Judge is not required to be disturbed and appeal must fail.

6. Accordingly, appeal is dismissed. There will be no order as to costs.

Appeal dismissed.