2011(1) ALL MR 346
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
K.U. CHANDIWAL, J.
The Designers Co.-Op. Hsg. Soc.Vs.Udhav S/O. Murlidhar Rasne & Ors.
Second Appeal No.280 of 1994,Second Appeal No.527 of 1994
6th April, 2010
Petitioner Counsel: Shri. RAJENDRA DESHMUKH,Shri. V. S. BEDRE
Respondent Counsel: Shri. SACHIN DESHMUKH,Shri. D. R. JAYBHAR,Shri. V. S. BEDRE,Shri. R. S. DESHMUKH
(A) Hindu Law - Joint family property - Alienation of - Duty of purchaser - Purchaser of the property is bound to inquire into the necessity for alienation - Held, burden would lie on purchaser to prove either that there was legal necessity in fact or that he made proper and bona fide inquiries as to existence of such appalling and pressing needs of the family.
Father's alienation of the joint family property for meeting legal necessity, are binding on the son. If the Karta, the father, wanted to dispose of the family property to meet antecedent debts, he could have entered into such eventualities. Where the Karta (Manager), like defendant no.1, enters into a transaction of sale, the purchaser (Defendant No.5) is bound to inquire into the necessity for alienation and, in the situation, the burden would lie on defendant no.5 (purchaser) to prove either that there was legal necessity in fact or that defendant no.5 made proper and bona fide inquiries as to the existence of such appalling and pressing needs of the family. The curious aspect in the matter is, no sooner there was public notice, showing intention of defendant no.5 to purchase the property, plaintiff has objected by his protest, replied to the Advocate plaintiff had made aware to the defendant No.5 there was no partition in between of the joint family property, and defendant No.1 has no right to sell the property, there is no legal necessity or any occasion to sell the same. The plaintiff had a caveat, if the sale is effected, it will not be binding on him (Exhs.88, 91). If, indeed, the sale transaction by defendant no.1 in favour of defendant no.5 would have been to meet the family necessities or to discharge the debts, the prudent purchaser should have incorporated the same in the sale deed. The onus of proving the legal necessity on occasions could be discharged by the alienee by proof of actual necessity or by proof that such alienee made proper and bona fide inquiry about existence of the necessity. Reasonableness in the action of the purchaser must be surfaced in the pleadings and evidence. Recitals in the deed, of legal necessity, being admissible in the evidence, carries some weight in the particular facts and circumstances in which the transaction has taken place. [Para 11,12]
(B) Hindu Law - Joint family property - Alienation of property by father - Held, father's alienation of the joint family property for meeting legal necessity is binding on the son. (Para11)
JUDGMENT
JUDGMENT :- By both these appeals, the judgment and decree in RCS No.271/1976 and RCA No.212/1986 of the Additional District Judge, Ahmednagar, are impugned by Designers Co-operative Housing Society in S.A. No.280/1994, while S.A. No.527/1994 is by Chandrakant.
The appeals are admitted on 19.4.1995 and 26.9.1994. In Appeal No.280/1994, following substantial question of law is formulated.
"Whether appellant is entitled for the adjustment of equities of a stranger purchaser, involves substantial question of law ?"
Second Appeal No.527/1994, refers to following substantial question of law, dt.19.4.1995 :
"Whether sale of 2 acres portion in survey No.6/2 is for legal necessity, is substantial question of law ?"
Both the appeals were directed to be heard together by order dated 19.4.1995.
2. The plaintiff Udhav sought partition and separate possession of suit property against his father, mother, brother and the purchaser of the property. The plaintiff canvassed, the defendant nos.1 to 4, in collusion, sold one acre of land in survey No.6/2 to defendant No.5 (Proposed co-operative Housing society) without any legal necessity or any reason, for an amount of Rs.34,000/-. This sale was particularly inspite of an objection raised by the plaintiff in response to the public notice dt.7.10.1975, by reply dt.21.10.1975 to proposed purchaser. Still, the defendant no.1 executed sale deed of 1 acre land of northern side from survey No.6/2 on 17th Feb., 1976 and defendant no.5 got its possession.
3. The defendants accepted, the suit property was joint family property. Defendant No.1 (the father) was Karta (Manager) of the family. Plaintiff started residing separately due to family quarrels. It was defendant nos.2 and 3 who maintained the families. They virtually did not dispute the jointness of the family. Defendants No.1 to 4 have never denied share of the plaintiffs. According to the defendants, defendant no.1 sold the land to defendant no.5 for legal necessity and benefit of the estate. It was necessary to repair house no.2553 on which father spent Rs.25,000/-. From the sale proceeds an amount of Rs.6,500/- was paid by the defendant no.1 to defendant no.4 (the mother). This amount was invested by the plaintiff in the name of mother in a Nationalized Bank.
4. Defendant No.5 set up a claim that the suit is not maintainable. It is a bona fide purchaser for value as society made inquiry and then purchased one acre of the land from defendant no.1 while the remaining land is in possession of the defendant no.1.
5. The plaintiff got the lis registered with the Registrar on 11.6.1976 (Exh.92). Defendant no.5, on 13.5.1976 purchased additionally one acre of the land from defendant no.1.
6. The pleadings and the evidence unequivocally demonstrate, defendant no.5 was aware about the share of the plaintiff. Inspite of such odds, from the area of 5 acres and 12 gunthas, two acres of the land, as referred above, is purchased by defendant no.5 for housing society. The balance 3 acres, 12 gunthas of land is reserved for the park.
7. The defense set up that the sale by defendant no.1 in favour of defendant no.5 was for legal necessity, naturally, should flow from the pleadings and evidence. There is no pleading from the defendant to establish that the purchase by defendant no.5 or sale by defendant no.1 could be for meeting the legal necessities. The evidence, however, shows, it was only for pressing need, the property is alienated. Pressing need by itself will not culminate to accept the transaction for legal necessity.
8. It was tried to be suggested to the plaintiff that the family was in arrears of Sales Tax and Income Tax and defendant No.1 Murlidhar discharged from the sale proceeds, such debts. However, not proved by defendants.
9. According to Chandrakant, defendant No.1 Murlidhar constructed four new rooms, two new bathrooms, two new latrines, out of the sale proceeds of the land for which he incurred expenses of Rs.25,000/- or Rs.35,000/- to Rs.40,000/-. Such construction was under valid permission from the Municipal Council (Exh.115). According to him, all the family was benefited by the construction. Defendant Chandrakant, however, did not produce any vouchers for causing repairs or construction to the property or having paid Rs.6,500/- to the mother or father Murlidhar having paid Rs.4,000/- to Rs.5,000/- on account of Income Tax or Sales Tax dues.
10. It was contended that an amount of Rs.6,000/- was paid to Vijaykumar Pardeshi towards the discharge, Rs.2,000/- were paid to Sadashivrao Deshmukh to satisfy debts. However, these aspects, firstly, do not flow in the pleadings and, secondly, are not proved by any document, barring statement of Chandrakant.
11. The law is well established, father's alienation of the joint family property for meeting legal necessity, are binding on the son. If the Karta, the father, wanted to dispose of the family property to meet antecedent debts, he could have entered into such eventualities. Where the Karta (Manager), like defendant no.1, enters into a transaction of sale, the purchaser (Defendant No.5) is bound to inquire into the necessity for alienation and, in the situation, the burden would lie on defendant no.5 (purchaser) to prove either that there was legal necessity in fact or that defendant no.5 made proper and bona fide inquiries as to the existence of such appalling and pressing needs of the family. The curious aspect in the matter is, no sooner there was public notice, showing intention of defendant no.5 to purchase the property, plaintiff has objected by his protest, replied to the Advocate plaintiff had made aware to the defendant No.5 there was no partition in between of the joint family property, and defendant No.1 has no right to sell the property, there is no legal necessity or any occasion to sell the same. The plaintiff had a caveat, if the sale is effected, it will not be binding on him (Exhs.88, 91).
12. If, indeed, the sale transaction by defendant no.1 in favour of defendant no.5 would have been to meet the family necessities or to discharge the debts, the prudent purchaser should have incorporated the same in the sale deed. The onus of proving the legal necessity on occasions could be discharged by the alienee by proof of actual necessity or by proof that such alienee made proper and bona fide inquiry about existence of the necessity. Reasonableness in the action of the purchaser must be surfaced in the pleadings and evidence. Recitals in the deed, of legal necessity, being admissible in the evidence, carries some weight in the particular facts and circumstances in which the transaction has taken place.
13. Defendant No.5 would have established, by recitals, to corroborate the other evidence of existence of legal necessity. The evidence which the defendant no.1 or 5 could have brought before the Court, is not placed. The sale deed, as stated earlier, does not specify that the transaction was to meet the pressing family needs legal necessity, or to discharge debts. The defendant No.5 did not show the expected diligence in purchase, though warned, rather showed obstinacy to its peril.
14. During the course of submission, it is informed, two defendants are members of defendant no.5, and have retained some plots. If this is so, and if additionally an area of 10,000 sq.ft. (Ten thousand sq.fts.) is left vacant, the equities can be adjusted as against these properties, but it will not dispel and obviate the existing rights of the plaintiff in the entire property. During the course of submission, the Counsel could not inform what has happened to the left over 3 acres, 12 gunthas of land reserved for park. If any area is released from such reservation or its compensation is earmarked, parties litigating are at liberty to deal with the same.
15. The survey of facts indicate, the father Murlidhar had no power to alienate plaintiffs share before severance between him and his son. The alienation is certainly not made to satisfy any debts.
16. Taking survey of the evidence, the substantial questions of law formulated, either on 26th Sept., 1994 or on 19th April, 1995, are answered against the appellants.
Second Appeals (Nos.280/1994 and 527/1994) are dismissed with costs. However, the judgment is stayed upto 30th June, 2010. Civil Applications are disposed off.