Mukhttar Singh vs Amarjit Singh and others

Pritam Singh Pattar, J.—This is a regular second appeal filed by Mukhtiar Singh vendee against the judgment dated February 18, 1972 of the Senior Subordinate Judge, Amritsar, whereby he accepted the appeal of the plaintiff-respondents and setting aside the decree of the trial Court passed decree for declaration in their favour against the vendees for possession of the land in suit on payment of Rs. 2100/-.

The facts of this case are that the land in suit measuring 19 Kanals and 7 Marlas fully described in the plaint and situated in village Raniwala, tehsil Tarn Taran district Amritsar, belonged to Buta Singh son of Jota Singh, a ghumar by caste and he sold the same to Piara Singh, Mukhtiar Singh sons of Puran Singh land Buta Singh son of Inder Singh of his village for Rs. 4000/- on the basis of registered sale deed dated April 11, 1961. Buta Singh vendor died in the year 1966. Amarjit Singh, Gurmit Singh and Surjit Singh, plaintiffs 1 to 3, who are sons, Ambo and Rani, daughters and Gurdip Kaur, plaintiff No. 6, who is widow of Buta Singh filed suit for possession of this land on the allegations that the land in suit was ancestral in the hands of Buta Singh, and it was corparcenary property and he had no right to sell it without consideration and legal necessity, that the sale took place without consideration and legal necessity, and that Buta Singh was a person of immoral character and he effected the sale for immoral purposes and it is not binding on them. Buta Singh and Piara Singh, vendees did not appear in spite of service and they were proceeded against ex parte. Mukhtiar Singh vendee had contested the suit alone. He denied the allegations made in the plaint. It was pleaded that the sale took place for consideration and legal necessity and for the benefit of the joint family and that the suit was barred by time. On these pleadings of the parties, the following issues were framed by the trial Court :--

Whether the plaintiffs have right to sue ?

Whether the suit land is coparcenary property ?

Whether the sale in dispute was effected for consideration, legal necessity or for benefit of the family ?

Whether the suit is within time ?

Relief.

The learned Sub-Judge held that only Amarjit Singh, Gurmit Singh and Surjit Singh, petitioners, who are sons of the vendor were entitled to challege the alienation and not the other plaintiffs and decided issue No. 1 accordingly. The land in suit was held to be coparcenary property constituted by the vendor and his three sons. The suit was held to be within limitation and issues Nos. 2 and 4 were decided in favour of the plaintiffs. On issue No. 3 it was held that the sale was an act of good management and legal necessity for Rs. 3400/- was proved and he decided issue No. 3 in favour of the vendees. As a result the suit of the plaintiffs was dismissed with no order as to costs. Against this decree the plaintiffs filed an appeal in the Court of the Senior Subordinate Judge who reversed the decision of the trial Court on issue Nos. 1 and 3. He held that all the plaintiffs have got a right to file the suit and decided issue No. 1 accordingly. On issue No. 3, it was held that the consideration for whole of the sale price was proved but legal necessity was proved for Rs. 2100/- only and therefore, the sale cannot be upheld. As a result, he accepted the appeal of the plaintiffs, set aside the decree passed by the trial Court and passed decree for possession of the land in suit in favour of the plaintiffs against the vendees on payment of Rs. 2100/-. The parses were left to bear their own costs. Mukhitar Singh, vendee, thereafter filed the present appeal in this Court against the judgment of the Senior Subordinate Judge.

The decision of the lower appellate Court on issues Nos. 1, 2 and 4 were not contested by any of the counsel for the parties. Mr. H.L. Sarin, learned counsel for the appellant contested the decision of the lower appellate Court on issue No. 3 only. Exhibit D-3 dated April 11, 1961 is the registered sale deed executed by Buta Singh vendor in favour of Piara Singh, Mukhtiar Singh sons of Puran Singh and Buta Singh son of Inder Singh, vendee, for Rs. 4000/-. The sale price consists of the following items:--

1.

Left with the vendee for payment to Dhanna Singh, the previous mortgagee of this land ...

Rs. 2100/-

2.

Paid in cash to the vender on the basis'' of receipt dated 8th April, 1961 ...

Rs. 600/-

3.

Paid in cash before the Sub-Registrar to the vendee for payment of miscellaneous debts ...

Rs. 1300/-

Both the Courts below have held that from the oral and documentary evidence produced by the vendees, the payment of the consideration is proved and this concurrent finding was not contested by the counsel for the appellants. Mr. H.L. Sarin, learned counsel for the appellant, also did not contest the finding of the lower appellate Court that the payment of Rs. 2100/- to the previous mortgagee of this land was a valid necessity. He also did not contest the finding of the lower appellate Court that no legal necessity for the sura of Rs. 600/- paid three days prior to sale deed was proved. He only assailed the finding of the Senior Subordinate Judge regarding the necessity for the sum of Rs. 1300/-.

in the sale deed Exhibit D-3 it is recited that this amount of Rs. 1300/- was required by the vendor for payment of miscellaneous debts. The details and the description of those alleged miscellaneous debts are not given in the sale deed. There is also no proof on the file whether Buta Singh vendor owed any debt to any other person or persons and if so how much. Puran Singh, D.W. 6, who is the father of Mukhtiar Singh and Piara Singh vendees stated that vendor Buta Singh used to do business and he required this sum of Rs. 1300/- for doing business. None of the vendees appeared as his own witness As mentioned above in the sale deed, it is recited that the vendor required the sum of Rs. 1300/- for payment of miscellaneous debts. Therefore, the statement of Piara Singh does not support the recital in the sale deed. At against this Gurdip Kaur plaintiff, as P.W. 3, who is the widow of Buta Singh vendor, stated that her husband used to do some business and also used to cultivate land as a tenant of others but she did not know anything about his gross annual income.

It is well settled law that a Hindu father as such has special powers of alienating coparcenary property which no other coparcener has and in the exercise of these powers he can sell or mortgage ancestral property, whether movable or immovable, including the interest of his sons, grandsons and great-grandsons therein, for the payment of his own debt, provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. However a Hindu father has no greater power over coparcenary property than any other manager of a Hindu joint family property, that is to say, he cannot alienate coparcenary property except for legal necessity or for the benefit of the family. The alienation by the manager of a joint Hindu family or by a Hindu father of the coparcenary property made without legal necessity is not void but voidable at the option of the other coparcener.

Para 244 of Hindu Law by Mulla, 13th edition recites that--

Where the manager of a joint Hindu family sells or mortgages joint family property, the purchaser or mortgagee is found to inquire into the necessity for the sale or mortgage, and the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity in fact, or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.

Legal necessity does not mean actual compulsion it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the racitals varies according the circumstances. (Vide Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, .

In the instant case the onus lay on the vendees to prove positively that there was a necessity for the sale and that the sum of Rs. 1,300/- was required by the vendor for payment of any miscellaneous debts as mentioned in the sale deed. A recital in a deed is no proof of of the fast recited therein There is no proof on the file that he owed debt to any other person and he required the sum to pay off that debt. Piara Singh, father of the appellant simply stated that the money was repaired by the vendor far trade or business and this is not the purpose mentioned in the sale deed. The on is lay heavily on the vendees to prove the necessity for this item of Rs. 1,300/- but the same is not proved. The decision of the Senior Subordinate Judge that legal necessity for a sum of Rs. 1,300/- is not proved, is correct and is affirmed.

The result is that sale consideration for whole of the sale price is proved but the legal necessity is proved to the extent of Rs. 2,100/- only. There was no pressing necessity for the vendor to sell the coparcenary property to pay off the mortgage debt. The lower appellate Court rightly held that the sale cannot be upheld.

For the reasons given above, there is no force in this appeal and the same is dismissed. There will be no order as to costs.