Jai Narain and Others vs Prem Singh and Others

K. Kannan, J.—On examining the pleadings and the judgment rendered by the Court with the assistance of the counsel appearing on behalf of the respondent, the appellant being absent, I am of the view that following substantial questions of law arise for consideration.

Whether the Courts below were in error in finding that sales had not been for legal necessity and granting the decree to the plaintiffs, especially when the consideration was admitted to have been received by the vendor?

Whether the Courts below were justified in providing for the recovery of the whole of the property including the share of the alienating coparcener who was the defendant when he did not even enter contest to deny his own sale deed?

The suit had been filed by the plaintiffs for a declaration that the sale effected by the father during the minority was without legal necessity and not binding on them. The suit came to be filed at the time when only the eldest of the sons had become major and the other sons were still minors and assuming him to a person, who could validly give a discharge on behalf of the minor brothers as well, the suit had been filed within a period of three years from the date of attaining majority of the eldest amongst the sons.

The Court had ample documentary material to show that the property originally belonged to Girdhari and later of his son Lakshman and the property devolved on his sons viz; the plaintiffs'' father 1st defendant and 1st defendant''s brother Mehar Chand. The genealogy is seen through the revenue entries that have carried through the names of the plaintiffs'' ancestors. The Court has also made reference to the jamabandi for the year 1936-37 that had shown the property in khasra No. 10 to have been mutated as 831/10 which stood in the name of the plaintiffs'' father Shankar and his brother Mehar Chand. In a still subsequent development, the property in khasra No. 831/10 has been changed as 13/15 of an extent of 7 kanals 10 marlas. The property is purported to have been sold for cash consideration of Rs. 2500/- to the purchasers for alleged maintenance of the house and marriage of the children.

The Courts below found that the consideration should have been paid since it is registered document and there was reference to the payment of consideration. With reference to legal necessity, the Court placed a burden of proof correctly on the purchaser but found that the purchaser had attempted to give a different version during the time of trial by contending that the vendor was prosecuting a criminal case and he had, therefore, requirement for litigation expenses. The Court rejected it on the ground that there was no such pleading and there was no recital in the sale deed to that effect and further that Shankar himself was said to have been only a witness in the criminal case and there is no need for him to incur any expenses. The Court found that there was no proof either regarding the repair of the house nor was there any marriage solemnized at the time when the property was sold. Two Courts below have held that there had been no necessity for the sale and have, therefore, found that the plaintiffs would be entitled to recover possession of the property on payment of Rs. 2500/- which was shown as the consideration.

It is a well-known proposition of Hindu law that a father Karta does not enjoy unlimited right of sale and a sale in order that it binds other coparceners has to be supported by legal necessity or family benefit. In this case, the burden had been correctly placed on the purchaser to hold that there had been no legal necessity and the Court was also justified in holding that the necessity had not been proved as a matter of fact. I find that the attempt was to introduce a necessity which was not pleaded or found stated in the sale deed. I find, therefore, that the Court''s finding on the issue of lack of necessity as appropriately founded on legal reasoning and such decision cannot be assailed.

The Court, even while holding that the plaintiffs are not bound by the sale was, however, in my view, erroneous in granting a decree for recovery of possession of whole of the property. It is not as if a sale effected without necessity by a Karta is void at law. It is only not binding to the extent to which the coparceners who had not joined the transaction of sale and who could not be bound to their share in the property whose sale is not supported by any legal necessity. The plaintiffs would each be entitled to 1/4th share and if the finding that the sale was not binding were to be sustained, the plaintiffs could have only obtained a preliminary decree for partition of 3/4th share and the sale in favour of the 1/4th share to the purchaser as regards the 1st defendant''s share would have still been carried through. The plaintiffs were not bound for payment of consideration when the transaction was not binding on them and the direction for payment of consideration as ordered by the Court does not, therefore, appear to be justified to the plaintiffs. The finding regarding the validity of the sale to bind the plaintiffs is sustained but the decrees of the Courts below are modified to provide for a preliminary decree for partition of 3/4th share. The suit has been filed for recovery of possession and therefore, the plaintiffs would be entitled to work out the relief for partition and for accounting for future profits from the date of institution of suit till the date of delivery of possession under Order 20 Rule 18 CPC under separate proceedings. The second appeal is disposed of with the modification as referred to above.