Baba Saheb Nimbalkar vs Laxmi Bai (Dead) and Others

P.K. Jaiswal, J.—This appeal is filed by the plaintiff against the judgment and decree dated 10.05.2005 passed by 6th Addl. District Judge, Gwalior, in Civil Appeal No.12-A/05, by which the learned Addl. District Judge dismissed the appeal of the appellant and affirmed the judgment and decree dated 01.12.2000 passed by 8th Civil Judge, Gwalior, in Civil Suit No.217A/98, by which the suit of the plaintiff was dismissed.

The facts of the case, in brief, are that the plaintiffs father Vinayak Rao died m the year 1953 on 20.05.1953. The plaintiff was then a minor and was of the age of 1-1/2 year. On 16.09.1955, Smt.Sankhya Bai widow of Shri Vinayak Rao (defendant No.3), the mother of the plaintiff, executed a sale deed of the immovable property in suit, i.e., suit house Municipal No.301, Halka No.9, Jagtap Ki Goth, Lashkar, Gwalior, in favour of Janki Prasad Jain for a consideration of Rs.2,500/- and possession was also delivered to the vendees. The sale deed Ex.P 1 (Ex.D7) was executed by Smt.Sankhya Bai for herself and as guardian of the minor plaintiff. At the time of execution of the sale deed in the year 1955, the plaintiff was minor. The present suit was filed on 07.08.1968 challenging the sale in favour of Janki Prasad Jain. At the time of filing of the suit, the plaintiff was minor aged 17 years and, therefore, the suit was filed by Baburao next friend of the plaintiff. The sale deed Ex.P 1 was executed on 13.09.1955 and registered on 16.09.1955. The sale was challenged on the ground that it was not for legal necessity and after death of his father, when he was at the age of 4 years, he was deserted by his mother. The mother of the plaintiff started living separately and he started living with his maternal uncle and there was no legal necessity to sell his share. It was also averred that sate deed was executed for a sum of Rs.2,500/- only and at that time the suit house was very valuable and defendants 1 and 2 have no right and title over the said suit property. It is also averred that after death of his father, defendant No.3 mother of the plaintiff, would become the natural guardian of the plaintiffs property, but she has no right to sell the property as she does not become a coparcener and as such cannot act as a Karta of Joint family. At that time, her right was limited as per Hindu Women''s Rights to Property Act, 1937.

Defendants 1 and 2 filed written statement and denied the allegations made in the plaint and averred that after the death of plaintiffs father, who had himself mortgaged the suit property vide mortgage deed dated 08.05.1935 to Prahlad Das for Rs.250/-, vide Ex.D3 mortgage deed dated 25.02.1944 in favour of Vittaldas for Rs. 1,600/, vide mortgage deed Ex.D4 thereafter in vide mortgage deed Ex.D4 thereafter in the year 1951 Vinayak Rao (father of the plaintiff), his wife and plaintiff mortgaged suit house to Gajanand vide Ex.D5 dated 15.05.1951 for Rs.600/-. Thus, the plaintiff had himself mortgaged his property. The natural guardian of the plaintiff, the mother sold the suit house by executing a sale deed for Rs.2,500/- as the payment was demanded by the mortgagee and the minor had also to be maintained. Out of the sale house, she paid the amount to Vitthaldas and Gajanand Gupta and repaid the mortgaged amount and also spent for maintenance expenses of plaintiff as he was residing with her, therefore, sale cannot be attacked as devoid of legal necessity Defendant No.3, i.e., the mother of the plaintiff, filed a written statement and in Paras 4 and 5 of the written statement admitted that at the time of death of her husband, plaintiff was 1-1/2 year''s old and she was no means to look after the plaintiff and to pay the mortgaged money and mortgager started reminding her to pay the mortgaged money and, therefore, she executed the sale deed on 16.09.1955. She, later on, filed another written statement and supported the case of the plaintiff.

BabaSaheb(PWl) in Para 4 of her statement stated that vide Ex.P 1 the house was mortgaged by her mother. This fact was supported by Baburao next friend of plaintiff. But the trial Court disbelieved this statement because the suit was filed by the plaintiff for declaring the sale as voidab initio. When the suit was filed, Janki Prasad was dead and, therefore, suit was filed against his widow Laxmi Bai. Defendant No.2 is adopted son of Laxmi Bai. During the pendency of the appeal before lower appellate Court Laxmi Bai died.

Trial Court after considering the oral and documentary evidence of the parties came to the conclusion that the suit property is ancestral property of plaintiff and after the death of father of the plaintiff, defendant No.3 became natural guardian of the plaintiff and in the year 1953, she was having limited right under the women''s Right to Property Act, 1937. She though not a coparcener in a Joint Family is, in the absence of an adult male member, competent to act as a Manager of the Family and any act done by her in that capacity for legal necessity or benefit of the plaintiff for her maintenance, would be binding on the plaintiff. The plaintiff is governed by Hindu Mitakshara and, therefore, only male member became the coparcener of the property. The trial Court after considering the agreement to sell dated 06.09.1955 (Ex.D 1), which was executed between the defendant No.3 and Janki Prasad Jain in which it is very specifically stated that father of the plaintiff Vinayak Rao mortgaged the suit house vide Ex.D4 dated 11.02.1946 for a sum of Rs.2,200/ - and for repayment of the loan and for maintenance of her son and also purchased one house from Kishanlal Vindi. She entered into an agreement to sell of the suit house for a consideration of Rs.2,500/- and she received Rs.500/- at the time of execution of this agreement. The trial Court also found that in respect of loan of Rs.500/-, which was taken from Prahlad by executing the mortgage deed dated 08.05.1935 (Ex.D2), she paid the loan on 13.09.1955 and the said endorsement is appended by Prahlad Das in the document Ex. D2. The trial Court also found that defendant No.2 Sankhya Bai admitted that loan was taken by her husband on 11.02.1946 vide Ex.D4 and suit house was mortgaged. The matter was compromised for Rs.700/- and this fact is also mentioned in Ex.Dl agreement to seli dated 06.09.1955 as well as in Ex.D4 dated 11.02.1946. In respect of sale price of Rs.2,500/-, the defendants filed sale deed Ex.D7 in respect of the sale deed of adjoining area and at that time, the rate was Rs.470/- per 1000 sq.ft. and, therefore, it cannot be said that the sale was made by a meagre amount. The trial Court also gave a finding that defendant No.3 Sankhya Bai in her evidence admitted that she filed written statement on 05.05.1980 and signed Vakalatnama Ex.D7. She in Para 14 of her statement further stated that the suit was filed on her behalf by her son and therefore, the trial Court held that the suit was filed by plaintiff in connivance with the defendant No.3. The trial Court after elaborate discussion gave a finding on all the points and held that the suit house constituted ancestral property of the plaintiff and defendant No.3 Sankhya Bai sold the same for legal necessity and payment of antecedent debts and the sale was binding and valid, accordingly, dismissed the suit.

Against the said judgment and decree, the appellant filed first appeal before the lower appellate Court. The first appellate Court after appreciating each and every point and after considering the oral and documentary evidence and judgment of the trial Court held that Ex.P2 was for consideration and supported by legal necessity and antecedents debts and the trial Court has not committed any legal error in dismissing the suit of the plaintiff and by the impugned judgment, the learned lower appellate Court affirmed the finding of the trial Court and dismissed the appeal of the appellant.

Learned counsel for the appellant while assailing the judgment and decree of the Courts below submitted that no permission was sought by the defendant No.3 before selling the house in question, he also submitted that there was no legal necessity to sell the suit house and legal necessity was not proved before the Courts below and also drew my attention to the legal proposition laid down in Article 529 of Mulla''s Hindu Law and submitted that sale is void as mother is not a coparcener in Joint Hindu Family and she was not competent to act as a Manager of the family and her duty was to manage the property and she cannot sell the property, which is property of the plaintiff, who, at that time, was minor.

On the other hand, the learned counsel for the respondent No.2 supported the judgment and decree of the Courts below and submitted that the mother of the plaintiff sold the suit house by executing the sale deed Ex.D7 as the payment was demanded by the mortgagee and the minor had also to be maintained. Out of the sale price, she paid towards the discharge of the mortgage deed executed by the plaintiff''s father and for maintenance expenses of minor, sale cannot be attacked as a devoid of necessity. The legal necessity was proved before the trial Court by cogent evidence. The said finding was affirmed by the lower appellate Court and as such the question of legal necessity is a finding of fact and the same cannot be attacked in this second appeal and no question of law much less a substantial question of law is involved in this appeal and prayed for dismissal of the appeal.

After considering the evidence on record, the judgment and decree of the Courts below and the arguments advanced by the parties, I do not find any merit in this appeal because the finding of the Courts below that the sale deed Ex.PI was for consideration and for legal necessity and payment of antecedent debts, which are pure findings of fact and is not assailable in second appeal. After having carefully gone through the judgment of the Courts below, I am satisfied that the relevant materials have been taken into consideration by the Courts below in dismissing the suit of the appellant-plaintiff. It is not in dispute that after the death of plaintiffs father, who had himself, mortgaged his property vide Ex.D2, Ex.D3, Ex.D4 and Ex.D5, natural guardian of the plaintiff, the defendant No.3 sold the suit house by executing the sale deed Ex. P1 (Ex.D7) for Rs.2,500/- for herself and as guardian of the minor plaintiff. A mother though not a coparcener in a Joint Family is, in the absence of adult male member competent to act as Manager of the family and any act done by her in that capacity for legal necessity for repayment of family loan or for maintenance of minor, would be binding on the plaintiff. Thus, there was undoubtedly a necessity for the sale. Natural guardian sold the property for discharging mortgage executed by minor father and for maintenance of minor, sale cannot be attacked as devoid of necessity and the sale deed would be binding on the plaintiff. The Courts below have not committed any legal error in dismissing the suit of the appellant-plaintiff. It is not in dispute that after the death of plaintiff''s father, who had himself, mortgaged his property vide Ex.D2, Ex.D3, Ex.D4 and Ex.D5, natural guardian of the plaintiff, the defendant No.3 sold the suit house by executing the sale deep Ex.Pl (Ex.D7) for Rs.2,500/- for herself and as guardian of the minor plaintiff. A mother though not a coparcener in a Joint family is, in the absence of adult male member competent to act as Manager of the family and any act done by her in that capacity for legal necessity for repayment of family loan or for maintenance of minor, would be binding on the plaintiff. Thus, there was undoubtedly a necessity for the sale. Natural guardian sold the property for discharging mortgage executed by minor father and for maintenance of minor, sale cannot be attacked as devoid of necessity and the sale deed would be binding on the plaintiff. The court below have not committed any legal error in dismissing the suit of the appellant. A substantial question of law will arise where the legal position of law will arise where the legal positron is clear, but the Courts below have decided the matter ignoring or acting contrary to such principle. Here in the present case, the lower appellate Court has not ignored any legal provision nor he decided the appeal contrary to such principle and, therefore, no substantial question of law is involved in this appeal as legal necessity was amply proved. In the facts and circumstances of the present case, no interference is warranted with concurrent findings of fact and, therefore, the appeal filed by the appellant has no merit and is accordingly dismissed with costs. Counsel''s fee Rs. 1,000/-, if precertified.