Maheshu vs Parshotam Singh and Others

A.L. Vaidya, J.—Karor Singh respondent No.4 was the owner of the suit land described in the plaint. He on 23rd January, 1964 transferred the suit land through a registered sale deed in favour of one Sh. Mahenshu appellant for a consideration of Rs. 3,000/-. This sale was challenged by the plaintiff-respondents 1 to 3, who happened to be the sons of vendor Karor Singh, it was pleaded that suit land was ancestral and as per custom same could not have been sold by the father of the plaintiffs except for legal necessity. According to the plaintiffs, sale was made only to defeat the rights of the plaintiffs as there was no legal necessity to sell the said land nor any consideration had actually passed. Plaintiffs sought declaration that on the basis of the custom referred to above, sale effected by their father of the suit land was legally not maintainable and after the death of the vendor, their father, it was legally ineffective to their right of inheritance

Present appellant Maheshu contested the suit and pleaded that land in dispute was not ancestral one nor the vendor and plaintiffs were governed by custom alleged by the plaintiffs. According to the defendant, sale was for legal necessity and for consideration and as a consequence thereof was valid one.

Parties were put to trial on the following issues by the trial Court: -

Whether plaintiffs and Karor Singh alienor defendant No. 2 are governed by custom in matters of alienation and if so what that custom is? OPP.

Whether the land in suit is ancestral qua plaintiffs and Karor Singh defendant No.2? OPP.

Whether the sale in dispute is for consideration and necessity? OPD.

Whether plaintiffs are figure head and Karor Singh defendant No. 2 has filed this case for own benefit? OPD.

Relief.

The trial court came to the conclusion that neither the suit land was ancestral nor the vendor was governed by any custom. It was also held that sale was made for legal necessity and was for consideration. The suit accordingly was dismissed.

The aforesaid judgment and decree were assailed by the Plaintiff-Respondents before the first Appellate Court on various pleas. The lower Appellate Court came to the conclusion that suit land was ancestral as pleaded by the Plaintiffs and that vendor as well as the Plaintiffs were governed by custom on the basis of which ancestral land could not be sold except for legal necessity. Suit for declaration, as such, was decreed and appeal was accepted.

The aforesaid judgment and decree have been assailed in the present appeal by the vendee-defendant on various pleas, however, the main being that sale under reference was for legal necessity and as such could not be declared to be a void one.

I have heard the learned Counsel for the parties and have also minutely scrutinised the entire record.

The main stress put up on behalf of the Appellant has been that there was ample evidence on record to prove that vendor who happened to be the father of Plaintiffs had a legal necessity and for that purpose the sale was effected. However, it is additionally argued on behalf of the Appellant that even if the sale on the basis of custom is held to be void the vendee who happened to be in occupation of the suit land as tenant under the vendee prior to the sale, his status of tenant has to be restored. Insofar as later line of argument is concerned, it cannot be considered at this stage of the case inasmuch as this plea has neither been taken nor in a way would be available in the present proceedings inasmuch as suit if decreed would declare the sale to be void and this will have no legal effect to the inheritance rights of the Plaintiffs, who happened to be sons of the vendor and that aspect would be considered only when inheritance opens.

The legal necessity in a way has not been defined, but definitely it will depend upon the facts and circumstances proved in an individual case. Legal necessity does not mean actual compulsion, but the kind of pressure which the law recognizes as serious and sufficient. The receipt of the full consideration, where there was no pressure on the estate, will not justify the sale being for legal necessity.

In the present case, the first Appellate-Court while dealing with this aspect observed that Karor Singh the vendor has denied that he had sold the land in dispute for any legal necessity and he has specifically denied that he took the money for the marriage of his son. It was further observed that infact Karor Singh revealed that he wanted the money for his personal expenses because his sons did not pay him such expenses: It was also observed by the first Appellate Court that Purshotam Singh, (PW-7) one of the Plaintiffs, deposed that he was married in the year 1960 while his younger brother was married in the year 1972 and the sale was made in the year 1964. The First Appellate Court also relied upon the version given by Purshotam Singh that he spent from his own pocket for his marriage and his father did not contribute any money being extravagant in his habits. According to the first Appellate Court, both father and son have completely denied that there was any legal necessity. The lower Appellate Court was also influenced by the fact that marriage of the second son took place in the year 1971-72 and therefore it was quite clear that there was no legal necessity for Karor Singh to effect the sale, and with this background the lower Appellate Court came to the conclusion that sale was not for legal necessity. However, on the basis of consideration, it Was held that sale was for consideration as Karor Singh admitted this fact.

Needless to say, the first Appellate Court has been influenced by the representation being made by the vendor and one of his sons during the trial of the suit. It may be very specifically referred here that close relation of the Plaintiffs and vendor being that of sons and father cannot be overlooked especially in the circumstances existing in the present case. The suit land measures 14 Kanals 9 Marias out of which 12 kanals 19 Maralas is Nehri Awal, meaning thereby the land was of valuable nature and its value since 1964 when it was sold in favour of the present Appellant has been on the increase. The suit was filed in the end of the year 1969 when the value of the agricultural land had arisen many fold. This aspect of the matter has to be taken note of especially when the vendor who happened to be the father of the Plaintiffs has tried to support his sons to prove that there was no legal necessity.

The sale deed brought on record is Ex. D-1. The necessity for selling the property recited in the sale deed consisted of two grounds. Firstly for the family expenditure of the vendor and secondly for the marriage of his son.

There is no dispute to the proposition that vendee at the lime of sale has to establish that either there was legal necessity or that he made proper and bona fide inquiry as to the existence of the necessity and did all that was reasonable to satisfy himself as to the existence of the necessity.

In the present case, the recital of the sale deed in this particular behalf has been referred. Karor Singh vendor, while appearing as PW-5 has stated that sale deed (Ex. D-1) was executed by him and whatever has been scribed therein was correct. He also added that he received consideration of the sale. Plaintiff was his son and he was the eldest one and was in Government service. He denied to have filed the present suit. He further added that he did not sell the land for the marriage of his son. He also added that his eldest son married in the year 1959-60 and the second one was married in the year 1971-72 and the third one was not yet married. He also stated that at the time of execution of sale deed (Ex.D-1) age of the second son was 20-21 years. The witness was confronted with the recital Ex. D-1 and he stated that it was wrongly scribed in it that he sold the land for the marriage of his son. The witness further disclosed that deed was not read over to him. He further disclosed that nobody was paying him money, therefore, he sold the land for his own expenses which included for his meals, garments and other expenses. He has been very specific in deposing that none of his sons was paving money for his expenses and he had no other source/income of his own. He stated that his wife and one of his son were residing with him. According to him, he was not having sufficient means to make his both ends meet.

Purshotam Singh, one of the Plaintiffs, was examined as PW-7. He made a general statement that there was no legal necessity to sell the land. He further added that he was married in the year 1960 and his younger brother was married in the year 1972. He has also stated about the bad habits of his father, regarding drinking and gambling etc. He stated that he was residing separately from his father for the last 9-10 years and that his father did not spend any money on his marriage.

From the statements of father and son, which have been relied upon by the first Appellate Court, it appears that father had legal necessity to sell the properly and the first Appellate Court fell in error in appreciating the evidence.

The first Appellate Court was influenced by only one fact that in the sale deed (Ex.D-1) the necessity described was marriage of his second son, who was married after eight years after the execution of the sale deed and accordingly legal necessity was not there. It may be referred here that the other aspect of the legal necessity, described in the deed (Ex.D-1) has not been touched by the first Appellate Court which was that the vendor required this money for his day to day expenses. It has come in the statement of the vendor itself, as referred to above, that his sons were not contributing to him and he along with his wife and one son was to be maintained. According to him, he had no other source of income. In such circumstances, where father was not helped by his earning sons, and there was nothing for him to fall upon for any help, selling of the land owned by him, for his day to day expenses, cloth etc. for his wife and his son comes within the meaning of sale for legal necessity. Admittedly, in the year 1964, two sons were unmarried and one of them was of marriageable age. The vendor''s representations that he required money for his family expenses and for marriage of his son in the aforesaid background has to be accepted, by the vendee especially when there was nothing before him at that time to disbelieve that representation, more so when it has come in the evidence that father was not being helped by his Caring sons. In this view of the matter, the vendor''s representation that he was not read over the. contents of Ex. D-1 does not appeal to reasoning, but on the other hand it was with his tacit consent that the deed was executed wherein the necessity for selling the land under reference had been rightly included.

Learned Counsel for the Respondent has tried to take some advantage from the case reported in Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, . In this case it has been held that legal necessity does not mean actual compulsion, it means pressure upon the estate which in law maybe regarded as serious and sufficient, and that recitals in a deed of legal necessity do not by themselves prove legal necessity.

The aforesaid ratio no doubt is the law of land but this does not help the Plaintiffs at all on the basis of the evidence recorded in the case under reference. In the present case, father himself deposed on oath that he was not being supported by his earning sons and that he had to support his wife, his son and himself and he had no other source of income to fall upon. It has also come in the evidence that eldest son was married in the year 1959-60 and, according to him, his father did not spend any money on his marriage meaning thereby father''s representation that he was residing separately along with his wife and his younger son without being supported by the other earning sons could not be kept aside. In this view of the matter and the other circumstances already discussed above, ratio of the ruling cited above goes in favour of the case of vendee.

Thus, on the basis of the aforesaid circumstances, which have been proved on record, it stood established that there was pressure on the estate of the vendor and in order to get money to meet but his day to day expenses, land in the suit was sold by him. No doubt, the marriage of the second son was solemnised in the year 1972, after about eight years of the sale, but the fact remains son was of marriageable age at the time of sale which additional fact also supported legal necessity to effect the sale under reference.

Thus, on the basis of the aforesaid discussion, the findings of the first Appellate Court that there was no legal necessity to effect the sale appears to have been arrived at without appreciating the legal evidence, examined during the trial and in this view of the matter, findings so arrived at require interference.

No other point has been stressed.

In view of the foregoing reasons, I accept the present appeal and set aside the judgment and decree passed by the first Appellate Court and accordingly dismiss the suit of the Plaintiffs with costs throughout.