Phool Chand vs Dhuli Singh

Harjit Singh Bedi, J.—The facts relevant for the disposal of the appeal are as under:-

The plaintiff-appellant alongwith his father Khushi Ram allegedly constituted a Joint Hindu Family and the suit land measuring 15 Kanals 7 marlas situated in village Gharaunda was part of the joint property. Khushi Ram sold the said land vide registered sale deed dated 7.2.1967 to the defendant-respondent. This sale was challenged by the appellant on the ground that his father Khushi Ram was a drunkard and there was no necessity to alienate the land and he had sold the land to the defendant-respondent without receiving any consideration. The suit was resisted by the respondent on the ground that Khushi Ram was the sole owner of the property and the appellant was in fact not his son. It was also pleaded that the sale had been effected by Khushi Ram on valid consideration as he needed the money for the marriage of his daughter, for the construction of a house and to discharge the loan that he had taken from Phagu Ram, who had since died. It was also urged that the said Khushi Ram was not earning anything from the land in question and after selling the same, he had invested the money in business and as such the sale was an act of good management.

On the pleadings of the parties, the following issues were framed:

Whether the suit land was ancestral qua the plaintiff and the vendor and joint. Hindu Family property as alleged in the plaint? OPP

Whether the plaintiff is son of vendor as alleged in the plaint? OPP

Whether the sale had taken place for consideration, legal necessity and constituted an act of good management? OPP

Whether the suit is collusive? OPD

Relief.

On issue No.1, the trial Court held that the suit land was proved to be ancestral but not a part of the Joint Hindu Family. On issue No.2, it was found that the appellant was the son of the vendor and on issue No.3 it was held that the sale had been effected on a consideration of Rs. 5,000/- and that too for legal necessity. Issues No.4 and 5 were decided against the defendants. As a cumulative effect of the findings, the suit was dismissed. The appellant challenged the finding of the trial Court on issue No.1 but confirmed the finding on issue No.3 with the result that the appeal too was dismissed. The present Regular Second Appeal has been filed by the unsuccessful plaintiff.

Mr. Goel, the learned counsel appearing for the appellant, has argued that the finding of the trial Court had been reversed and it has been found that the suit property was the Joint Hindu Family property and in this view of the matter, the finding on issue No.3 had become irrelevant. He has pointed out that as per the evidence on the file, there was nothing to show that the sale had been effected for legal necessity or was an act of good management. It has also been pointed out that as a matter fact, the appellant had no sister and as such, the question of her marriage did not arise. The trial Court as also the Lower Appellate Court have taken this circumstances as adverse to the appellant as from the discrepant nature of evidence produced on his behalf, it was clear that he had a sister by the name of Phullo. Before the lower Appellate Court, the appellant admitted that he had a sister but stated that his evidence to the contrary had been given by mistake. This assertion is, on the face of it, wrong, as this denial has been made at two different places. In view of the categorical and obviously false stand of the appellant, I am of the opinion that the finding of the Courts below that Khushi Ram needed the money for the marriage of his daughter is correct. Moreover, a perusal of the sale deed Exh.D-1, also shows a recital by Khushi Ram that he needed the money for raising a house and for other household expenses, These recitals do go a long way in proving that there was legal necessity on this score as well. It is also significant that the sale deed had been executed in the year 1967 whereas, the suit had been filed in September, 1975. The delay in finding the suit though not be fatal, would certainly be a circumstance to show the bona fide of the appellant. Moreover, the Courts below have recorded a finding of fact on issue No.3, which is adverse to the appellant. No compelling reasons have been spelt out as to why this finding should be reversed. It is accordingly confirmed. The appeal is accordingly dismissed.

No Costs.