2011(2) ALL MR 615
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.M. SAVANT, J.

Keshao Narayan Wankhede Vs. Namdeo Deoman Bambai & Ors.

Second Appeal No.403 of 1994

7th January, 2011

Petitioner Counsel: Mrs. THAKRE
Respondent Counsel: Mr. J. T. GILDA

(A) Hindu Law - Joint Family Property - Sale for legal necessity by Karta - Though the issue as regards drinking and gambling of the Karta has not been proved it cannot be said that the property was sold for legal necessity - However, when Manager of the joint family sells joint family property without legal necessity, the sale is binding on him to the extent of his own share though it cannot bind the other co-parceners. (Paras 7, 9)

(B) Civil P.C. (1908), O.20, R.12 - Mesne profits - Transferees of joint family property not unlawfully in possession of the property transferred to him by the father in so far as the share of the father is concerned - Enquiry as to mesne profits under O.20, R.12 would be restricted to the land coming to the share of the plaintiffs father and not to purchaser - Thus, enquiry under Order 20, Rule 12, therefore, would have to be held in that context.(Paras 1, 10)

JUDGMENT

JUDGMENT:- The above Second Appeal arises out of the judgment and decree dated 22nd July, 1994 passed in Regular Civil Appeal No.148/1987 by which the Appellate Court modified the decree dated 27th February, 1987 passed by the Trial Court in Regular Civil Suit No.239/1986. The above Second Appeal raises the following substantial questions of law:

(a) Whether in view of the admitted fact that the father of the plaintiff Nos.1 to 5 executed the sale deed on 21.4.1984 and another sale deed on 25.6.1984 and the said sales were for legal necessity, the sons of defendant No.2 who depended on the father as Karta for their maintenance, could challenge the alienation effected by the father when the said alienation were made due to legal necessity?

(b) Whether in the facts and circumstances of the present case, when the transferees could not be said to be unlawfully in possession of the property transferred to him by the father in so far as the share of the father is concerned whether the enquiry under Order 20, Rule 12, C. P.C. Against the purchaser could be directed?

2. The facts in brief can be stated thus :-

The appellant is the original defendant no.1 in Regular Civil Suit No.239/1986. The respondents herein are the original plaintiffs in the said suit. The said plaintiffs are the children, wife and mother of defendant no.2 in the said suit. The suit was filed for possession of the suit property being land bearing Survey No.469/4 situated at Shirala. It was the case of the plaintiffs that the suit land is the joint family property of the plaintiffs and the defendant no.2 and he was, therefore, not authorised to sell the same. It is the case of the plaintiffs that defendant no.2 sold the suit field to defendant no.1 for consideration of Rs.12,000/- by two sale deeds. It is the case of the plaintiffs that the said suit land was sold without there being any legal necessity and in order to satisfy and fund the vices of defendant no.2 of gambling and drinking. It was the case of the plaintiffs that they had no knowledge about the sale transactions. The plaintiffs have therefore stated that the said sale deeds are not binding on them and, therefore sought declaration that sale deeds between defendant nos.1 and 2 are void. The plaintiffs have consequently prayed for possession of the suit land.

3. The defendants were served. Defendant no.1 filed his written statement and denied that suit field was sold by defendant no.2 without any legal necessity. It was the case of defendant no.1 purchaser that since defendant no.2 has to maintain a large family and since he was short of funds for maintenance and education of his children and also in view of the fact that he was indebted to the bank that the said suit property was sold to defendant no.1. Defendant no.2 did not file any written statement in spite of opportunity given to him.

4. The Trial Court framed as many as nine issues. However, from the point of view of the present appeal, issue nos. 3 and 4 are relevant. The said issues pertain to the legal necessity for sale of the property. The issue nos. 3 and 4 are reproduced herein below:

Issue no.3 : Does defendant no.1 prove that the suit field was sold by defendant no.2 for legal necessity for the benefit of the joint family?

Issue no.4 : Does defendant no.1 prove that he purchased the suit field bona fide and without knowledge of the plaintiffs rights over it?

5. The parties went to trial. Both the parties adduced evidence. Insofar as plaintiffs are concerned, plaintiff no.1 Namdeo, who is son of defendant no.2 deposed; whereas defendant no.1 purchaser entered the witness box. Insofar as issue of legal necessity is concerned, the Trial Court on the basis of material that was on record came to the conclusion that the legal necessity for the sale of the property has not been proved. The Trial Court was of the view that defendant no.1, who is a purchaser though he had come with the case that defendant no.2 was heavily indebted to the bank had not produced any evidence in support of his case that the suit land was sold, so that out of sale proceeds the outstandings of the bank could be paid. The Trial Court also held that it was highly improbable that the suit property was sold for the maintenance and expenditure of the family. The Trial Court took into consideration the fact that children of defendant no.2 were studying at Shirala in classes ranging from matriculation to third standard and therefore, it could not be said that defendant no.1 had to spend a large amount on education.

6. The Trial Court, on the basis of material on record, has therefore recorded a finding that it could not be said that defendant no.2 was in pressing need of money for educational expenses or for repaying the bank loan. Insofar as the case of defendant no.1 that he was bonafide purchaser of value without noticing the Trial Court was of the view that the fact that defendant no.1 was aware that it was joint family property was amply demonstrated by the evidence on record. The Trial Court recorded a finding that it was within the knowledge of defendant no.1 that the suit field was not exclusively owned by deceased Deoman and that the plaintiffs had an equal share in the same. The Trial Court, however, on the basis of the material on record rejected the theory propounded by the plaintiffs that defendant no.2 had sold the property to fund his vices of gambling and drinking. The Trial Court, therefore allowed the said Regular Civil Suit no. 239/1986 and issued declaration that the sale deeds dated 21/4/1984 and 25/6/1984 in favour of defendant no.1 were void. The Trial Court directed the defendant no.1 to deliver possession of the suit property to the plaintiffs.

7. Being aggrieved by the said judgment and order dated 27th February, 1987 in Regular Civil Suit No.239/1986 defendant no.1 purchaser filed Regular Civil Appeal being No.148/1987. The said Regular Civil Appeal was partly allowed and the decree was restricted by excluding the lands of the share of the plaintiffs and was restricted only to the land belonging to the share of defendant no.1. The Appellate Court observed that defendant no.1, purchaser shall be at liberty to seek general partition of the joint family property from getting possession which could be allotted to defendant no.1. The First Appellate Court insofar as the finding of fact as regards legal necessity was concerned, confirmed the findings of the Trial Court. However, insofar as decree passed by the Trial Court was concerned, the Appellate Court held that in the light of Mitakshare School of Hindu law, the sale deeds cannot be held as completely void as a coparcener under the said School can sell his undivided share in the coparcenery property. The First Appellate Court held that when Manager of the joint family sells joint family property without legal necessity, the sale is binding on him to the extent of his own share though it cannot bind the other co-parceners and since defendant no.1 was put in possession of the land in question, the Appellate Court was of the view that decree passed by the trial Court in favour of the plaintiffs cannot be faulted with. However, the same would have to be restricted to the extent of share of defendant no.2 in the joint family property. The counter claim was accordingly partly allowed by the First Appellate Court.

8. It was sought to be contended that on behalf of the appellants i.e. the original defendant no.1 that once the issue that defendant had sold the property to fund his vices i.e. gambling and drinking was not held to be proved then necessarily the legal necessity to sell the property has been proved by defendant no.1. It is further contended that insofar as defendant no.2 is concerned, it has come on record that he was indebted to the bank and to pay the banks outstanding that defendant no.2 had sold the suit property to defendant no.1.

9. In my view, the contention urged by the learned counsel for the appellant is fallacious though the said issue as regards drinking and gambling of the defendant no.2 has not been proved as found by both the Courts below. The fact that the property was sold for legal necessity has not been proved by the defendants by leading cogent evidence. In fact, no evidence was led by defendant no.1 though he has pleaded that defendant no.2 was indebted to the bank. It would have been another matter if there was some evidence on record to substantiate the case of defendant no.1 that the property was sold for legal necessity. It is also required to be borne in mind that defendant no.1 was well aware of the fact that the property in question in respect of which he was dealing with was a joint family property and, therefore, it was all the more necessary for him to satisfy himself that the property was sold for legal necessity. As indicated above, both the Courts below have recorded concurrent findings of fact on the said issue, this Court in its jurisdiction under Section 100 of the Code of Civil Procedure cannot re-appreciate the evidence as desired by the learned counsel for the appellant.

10. Insofar as the directions of mesne profits is concerned, the mesne profits obviously would be restricted to the land coming to the share of the plaintiffs and not defendant no.1. The inquiry under Order 20, Rule 12 of the Code of Civil Procedure, therefore, would have to be held in that context. The question of law, therefore, stands answered in terms of what has been stated here in above.

11. In the light of the above and except what is stated here in above as regards the mesne profits, I do not find any merit in the Second Appeal, which is accordingly dismissed with no order as to costs.

Ordered accordingly.