Inderjit Singh and others vs Randhir Singh and others

D.V. Sehgal, J.—This revision petition is directed against the judgment dated April 28, 1987 of the learned Sub-Judge 1st Class, Muktsar whereby he dismissed an application under Order 14 Rule 5 of the CPC (for short ''the Code'') filed by the Plaintiff-Petitioners. They had sought amendment and recasting of the issues arising in the suit.

The Petitioners had filed a suit for declaration to the effect that the mortgage-deeds dated April 30, 1974 and June 22, 1976 and sale deed dated February 13, 1986 whereby their father Randhir Singh, Defendant-Respondent No. 1, had conveyed the suit property in favour of Defendant Respondents 2 and 3, were not binding on their interests in the suit property which, according to them, is a Joint Hindu Family property. The suit was contested by the Defendants. As a result, certain issues were framed. The Petitioners were not satisfied with the issues framed by the learned trial Court, and for that reason, they filed the instant application for amendment and recasting the issues. They proposed that the following three issues should be framed:-

2 (a) Whether the mortgages dated April 30, 1974, and June 22, 1976 by Defendant No. 1 in favour of Defendants Nos. 2 & 3 were made for consideration and legal necessity or as an act of good management ? O.P.D.

2 (b) Whether the sale-deed dated February 13, 1986 on behalf of Defendant No. 1 in favour of Defendants No. 2 and 3 was for consideration and legal necessity on as an act of good, management ? O. P. D.

2 (c) If issues No. 2 (a) and 2 (b) are proved, whether the mortgages and sale-deeds are liable to be set aside ? O.P.D.

The learned trial Court did not agree to frame these issues. Instead it framed issue No. 6-A vide the impugned order to the following effect:-

Whether the mortgage-deeds dated April 30, 1974 and June 22, 1976 are without consideration and without legal necessity and for that reason are liable to be set aside ?

Learned Counsel for the Petitioners contends that when a Joint Hindu Family property is sold or alienated by its Karta, the onus is always on the vendee to show that such sale was for consideration and legal necessity and as an act of good management. She contends that the members of the Joint Hindu Family have a vested right in such property. The right of the Karta to sell the same is not absolute but is hedged by the condition that the sale should be for legal necessity, consideration and by way of good management and not otherwise.

I find force in this contention, which is fully supported by the judgment of the final Court in Pandurang Mahadeo Kavade and Others Vs. Annaji Balwant Bokil and Others, and others1 and Division Bench judgment of this Court in Bhagwan Dass v. Bhishan Chand and others AIR 1971 P&H. 7. Even otherwise, it is the settled proposition of law that the onus of an issue has to be discharged in affirmative. It is difficult to prove the negative. When the fact in the affirmative is proved or evidence is led in an attempt to prove the same, the onus shifts to the other side to negate the existence of such a fact I am of the considered view that additional issue No. 6-A, as framed by the learned trial Court, is not in accord with law and is likely to result in prejudice to the Petitioners during the trial of the suit.

Consequently, I allow this revision petition, set aside the impugned order of the learned trial Court and instead direct it to frame issues No. 2(a), 2 (b) and 2(c) mentioned in para No. 2 above and then proceed with the suit in accordance with the law. Issue No. 2 should be deleted because it becomes redundant. Since there is no representation on behalf of the Respondents, there shall be no orders as to costs.

The Petitioners, through their counsel, are directed to appear before learned trial Court on December 1, 1988.