Suklal and Others vs Chhatram and Others

T.P. Sharma, J.—By this second appeal u/s 100 of the code of Civil Procedure, 1908, the appellants have challenged legality & propriety of judgment & decree dated 12-8-93 passed by the then Additional Judge, Sakti, Camp at Janjgir, to the Court of District Judge, Bilaspur, in Civil Appeal No. 40-A/88 reversing judgment & decree of dismissal of civil suit for possession of suit property situate at village Meu, Tahsil Janjgir, dated 29-11-86 passed by the Civil Judge Class-II, Janjgir in Civil Suit No. 104A/84. While reversing judgment & decree of the trial Court, learned lower appellate Court decreed the suit for possession of agricultural land bearing Khasra No. 90/4 admeasuring area 2.05 acres.

Present appeal has been admitted on the following substantial question of law:-

Whether the lower appellant court rightly reversed the finding of the trial Court regarding legal necessity in view of clear recital in the sale-deed that the sale deeds were being executed for agriculture purpose on the hypothesis that no agriculture work was to be done at the time when the sale-deeds were executed

As per pleadings of the parties, Panchuram - father of plaintiffs Chhatram, Ramsaptah & Kunda and the plaintiffs were joint owners of agricultural land bearing Khasra No. 90/4 area 2.05 acres situate at Village Meu. Registered sale deed of aforesaid land was executed by Panchuram i.e. defendant No. 6 in favor of defendant No. 7 Ramjiwan on 15-11-1975 for a consideration of RS. 1,000/-. Defendant No. 7 Ramjiwan has also executed registered sale deed on 3-5-76 in favor of defendants No. 1 to 5 and received consideration of RS. 1,000/-.

By filing civil suit on 29-8-84 sons of Panchuram have claimed possession of the property from defendants No. 1 to 5/alleged purchasers from defendant no 7 Ramjiwan, alleged first purchaser Ramjiwan and from their father Panchuram defendant No. 6, on the ground that defendants No. 1 to 5 have mutated their names in revenue record and in the year 1984 they have forcefully obtained possession of the aforesaid land. By amending the plaint, the plaintiffs have pleaded that there was no legal necessity to defendant No. 6 Panchuram for alienation of the property and no title has been transferred to defendants No. 1 to 5 and 7.

By filling separate written statement, alleged first purchaser Ramjiwan-defendant No. 7 has specifically pleaded that he has purchased the property form Panchuram on 15-11-75, Panchuram has sold the property for legal necessity of his family for which he was competent to sale, thereafter, he has sold the property to defendants No. 1 to 5 and handed over possession on 3-5-76.

Defendants No. 1 to 5 have filed separate written statement and have alleged that they have purchased the property form Ramjiwan and have obtained possession of the property. Panchuram - father of the plaintiffs was competent to alienate the property for legal necessity of his family and he has alienated the property to Ramjiwan for legal necessity of the family.

Defendant No. 6 Panchuram has not filed any written statement and the trial court has proceeded ex-parte against him.

After affording opportunity of hearing to the parties, learned Civil judge Class-II has dismissed the suit filed on behalf of the plaintiffs which was challenged before the lower appellate court and the lower appellate Court has decreed the suit on the ground that Panchuram has sold the property without any legal necessity of the family and, therefore, same is not binding.

I have heard learned counsel for the appellants and learned Panel Lawyer appearing on behalf of the State/respondent No. 10. None present for respondents No. 1 to 9 and no representation is made. I have perused judgment & decree and records of both the Courts below.

Learned counsel for the appellants vehemently argued that in the present case, the lower appellate Court has illegally arrived at finding that Panchuram has sold the property without legal necessity. The plaintiffs were under obligation to examine their father Panchuram whom they have made party as defendant No. 6 but for the reasons best known to them, they have not examined Panchuram. In absence of his examination, adverse inference would be drawn that Panchuram has alienated the property for legal necessity of his family. The lower appellate Court without any evidence has arrived at finding that at the time of alleged sale there were no agricultural operations and, therefore, any sale on the ground of agricultural need was not for legal necessity of the joint Hindu family.

Learned counsel for the appellants place reliance in the matter of Smt. Rani and Another Vs. Smt. Santa Bala Debnath and Others, in which the Supremes Court has held that recitals in a deed do not by themselves prove legal necessity, but they are admissible in evidence and the purchaser can prove legal necessity also by relying upon the recitals in a deed. Learned counsel further placed reliance in the matter of Mukesh Kumar and Others Vs. Col. Harbans Waraich and Ors, in which the Supreme court has held that karta of the family is competent to enter into an agreement relating to property for bona fide need of the joint Hindu Family. Learned counsel also placed reliance in the matter of Radhakrishnadas and another v. Kaluram (Dead) and after him his Radhakrishnadas Vs. Kaluram, in which the Supreme Court has held that alienation made by Karta for legal necessity of family is binding on the joint Hindu family.

As per pleadings, evidence and findings of both the Courts below, Panchuram was karta of the family consisting of his three sons and himself. Panchuram has executed sale deed in favor of Ramjiwan and Ramjiwna has executed sale deed in favor of defendants No. 1 to 5 i.e. appellants No. 2, 4, 5 and predecessor-in-title of appellants No. 3 (a) to (e).

As regards proof of legal necessity for alienation of joint Hindu family property by father, father or Karta of a family is not competent to dispose of or alienate the joint Hindu family property for his own bona fide need, but father or Karta is competent to alienate the property for legal necessity of the family. Purchase/alienee is required to verify and satisfy itself about legal necessity of the joint Hindu family for such alienation before entering into contract and heavy burden was upon the alienee/purchaser to prove the fact that Karta has alienated the property to purchaser for legal necessity of the family.

While dealing with the question of legal necessity and evidentiary value of recitals in a deed, the Supreme Court in the matter of Smt. Rani (supra) has observed in paras 10& 11 of its judgment as follows:-

Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered 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 existences 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 recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession.

While dealing with the question of proof of legal necessity, the Supreme Court in the matter of Radhakrishnadas (supra) has held that the alienee was only required to establish legal necessity for the transaction and it was not necessary for him to show that every bit of the consideration was applied for meeting family necessity. Para 5 of the judgment of the Supreme Court reads thus

(5) Before us Mr. S.R Sinha accepts the position that Rs. 45,000 out of the consideration of Rs. 50,000 was in fact for debts binding on the family, but contends that even so it cannot be said that there was legal necessity for the sale. His argument is that a sum of Rs. 5,000 or so for which, according to him, legal necessity had not been established was not a negligible part of the consideration of Rs. 50,000/- This argument is based upon a misapprehension of the true legal position. It is well established by the decisions of the Courts in India and the Privy Council that what the alienee is required to establish is legal necessity for the transaction and that tit is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. In this connection we may refer to two decisions of the Privy Council. One is AIR 1927 37 (Privy Council) . In that case the consideration for the alienation was Rs. 3,500. The alienee was able to prove that there was legal necessity only to the extent of Rs. 3,000 and not for the balance. The High Court held that the alienation could be set aside upon the plaintiff''s paying Rs. 3,000 to the alienee. But the Privy Council reversed the decision of the High Court observing that the High Court had completely misapprehended the principle of law applicable to a case of this kind. What the alienee has to establish is the necessity for the transaction. If he establishes that then he cannot be expected to establish how the consideration furnished by him was applied by the alienor. The reason for this, as has been stated by the Privy Council in some other cases, is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the managements himself. This decision was followed by the Privy Council in AIR 1927 121 (Privy Council) ), where at pp. 602 and 603 (of ILR Lah): (at p. 123 of AIR), it has observed:

It appears from the judgment of the learned Judges of the High Court that if they had been satisfied that the whole of the Rs. 38,400 paid out of the sale proceeds was paid in discharge of debts incurred before the negotiation of sale, they would have been of opinion that the sale ought to have been upheld. With this conclusion their Lordships agree, but they are of opinion the undue importance was attached by the learned Judges to the question whether some of the payments were made in discharge of debts incurred in the interval between the negotiation of the sale and the execution of the sale-deed. Even if there had been no joint family business, proof that the property had been sold for Rs. 43,500 to satisfy pre-existing debts to the amount of Rs. 38,000 would have been enough to support the sale without showing how the balance had been applied, as held by their Lordships in the recent case of AIR 1927 37 (Privy Council) ).

Both these decisions state the correct legal position Mr. Sinha''s agreement must, therefore, be rejected.

In the matter of Mukesh Kumar (supra), the Supreme Court has held that the fact that the joint family properties have been attached for payment of the income tax extending to over Rs. 3 lakhs itself was sufficient to hold that the sale of the property was for the purpose of benefit of joint family.

In the present case, definitely, the appellants herein were under obligation to prove the factum of legal necessity of alienation of joint Hindu family property Recitals in Exs. D-1 & D-2, the alleged sale deeds executed by Panchuram - karta in favor of Ramjiwan, reveal that alienation was made for agriculture purpose As per the evidence of the plaintiffs, Panchuram was not having any bad habit. To prove legal necessity, defendant No. 7 Ramjiwan and defendant No. 6 Panchuram father of the plaintiffs were the best witnesses.

Defendant No 7 Ramjiwan Sharma (DW-5) has examined himself. He has deposed in his evidence that Panchuram has alienated the property to him vide Exs. D-1 & D-2. In para 3 of his evidence he has deposed that at the time of transaction Panchuram told him that he is alienating the property for his house expenses of food and grain. He has further deposed that at that time there was drought like situation and Panchuram has not sold the property without any legal necessity. In para 6 of his cross-examination, he has admitted that Pnachuram has not executed Exs. D-1 & D-2 at the time of any agricultural operations Exs. D-1 & D-2 have been executed on 15-11-75 i.e. in the month of November, 1975. He has also admitted that recitals in Exs. D-1 & D-2 show that the land was sold for agriculture purpose

The defendants have not examined Panchuram, even defendant No. 7 Ramjiwan Sharma (DW-5) has not examined Panchuram to prove legal necessity and Panchuram was ex-parte before the trial Court. Burden to prove legal necessity was on defendants No. 1 to 5 but they have not examined witnesses to prove legal necessity of the family. As per para 3 of the evidence of Ramjiwan Sharma (DW-5) - purchaser, at the time of transaction there was drought like situation and Panchuram has sold the land for his family expenses (food & grain), but recitals in the sale deeds show that it was for agriculture purpose. When there was drought like situation, there was no propriety to sell the property for agriculture purposed that too in the month of November. Evidence of Ramjiwan Sharma (DW-5) is self-Contradictory and does not find support from the recitals in the sale deeds. Recitals in the sale deeds itself are not evidence, but same is admissible in evidence to support the evidence of witnesses. But in the present case, evidence of Ramjiwan Sharma (DW-5) and recitals in the sale deeds are self-contradictory, even evidence of this witness in paras 3 & 6 are self contradictory. Except these few lines, the appellants herein/defendants No. 1 to 5 have not adduced any evidence to prove the factum of legal necessity.

Evidence adduced on behalf of the appellants herein/defendants No. 1 to 5 was not prima facie sufficient to discharge their onus. In absence of any evidence, learned lower appellant Court has rightly negated execution of sale deeds for legal necessity of family by karta. Finding of the lower appellate Court is not based on hypothesis, virtually, it is based on self-contradictory evidence of Ramjiwan Sharma (DW-5) and his documents Exs. D-1 & D-2.

Consequently, the substantial question of law formulated for the decision of this appeal is decided as positive and it is held that the finding of the lower appellate Court is not based on hypothesis.

On the basis of aforesaid decision on the substantial question of law, I do not find any merit in the second appeal, the appeal is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs.

Advocate fees as per schedule.

Decree be drawn up accordingly.