RAMKRISHNA MANIRAM LENDE v. VITHALRAO ALIAS BABOO — 1977 DIGILAW 85 (MP)

JUDGMENT : ( 1. ) THE judgment in this appeal shall also govern the disposal of Second Appeal No. 726 of 1970. (Vithalrao and others v. Ramkrishna and others.) ( 2. ) THE facts giving rise to both the appeals are as below: undisputedly, appellants Nos. 1, 2 and 3 are the sons of Maniram. It was also not in dispute that the plaintiffs along with their father Maniram and sadya, their uncle, formed a coparcenery joint Hindu family. It was also undisputed that apart from the suit lands, the joint family owned about 25 acres of agricultural lands under cultivation. There was no other source of income except from the cultivation of the agricultural holding left by Jhipar, the grand father of the plaintiffs. Jhipar left behind two sons Nandya and sadya. Sadya is alive. Nandya died leaving behind his son Maniram. The suit lands comprised of Khasra No. 34 area 1. 93 acres and Khasra No. 25/3 area 3. 00 acres total 4. 93 acres, rental Rs. 10. 37 p. situate at Magajgaon, tahsil Sausar, District Chhindwara. It was not disputed that Khasra No. 34 area 1. 93 acres was acquired by Sadya and Nandya (who was then alive) vide sale deed dated 13-4-1943 for a consideration of Rs. 1000. Similarly, Khasra no. 25/3 area 3. 00 acres was purchased by Sadya and Maniram for Rs. 1500 on 3-5-1945. ( 3. ) SADYA and Maniram executed a registered sale deed in respect of the aforesaid two Khasra numbers in favour of Parwatibai, the mother of the defendants for a consideration of Rs. 7000 on 23-5-1963. In pursuance of the aforesaid sale deed, Parwatibai entered into possession of the suit land. Parwatibai, however, died in the year 1967. The plaintiffs, being the minor sons of Mannam, challenged the validity of the sale deed executed by Maniram and Sadya on the ground that the suit lands belonged to the joint family of which the plaintiffs Nos. 1, 2 and 3 were coparceners and Sadya and Maniram had no authority to transfer the same inasmuch as, the sale was not for any legal necessity The value of the lands was five times more according to the transactions, which had taken place on or about the date of sale in respect of similar lands. 1, 2 and 3 were coparceners and Sadya and Maniram had no authority to transfer the same inasmuch as, the sale was not for any legal necessity The value of the lands was five times more according to the transactions, which had taken place on or about the date of sale in respect of similar lands. Sadya and Maniram, vendors of the defendants, were not impleaded as parties to the suit nor they have been examined by either side as witnesses. A sum of Rs. 6000, out of total consideration of Rs. 7000, is said to have been paid in advance a few days before 23-5-63, the date of execution of the sale deed and the remaining sum of Rs. 1000 was paid at the time of registration. ( 4. ) THE trial Court dismissed the suit of the plaintiffs for possession of the lands by holding that the suit lands were the self-acquired assets of Sadya and Maniram and as such the plaintiffs had no right, title and interest in the same and could not challenge the alienation made in favour of Parwatibai In the alternative, it was also held that even if the suit lands belonged to the coparcenary, Sadya and Maniram, being the Karta of the said family affected the transfer of the suit land for legal necessity i. e. for payment of antecedant debts and meeting the expenses of marriage etc. and therefore the sale was valid and binding on the plaintiffs. ( 5. ) IN the first appeal, the lower appellate Court modified the judgment and decree of the trial Court. The lower appellate Court held that Khasra no. 25/3 only was the self acquired property of Sadya and Nandya and did not belong to the joint family. Khasra No. 34, however, belonged to the joint family. But since, no legal necessity could be established to justify the transaction of the entire Khasra numbers for the proportionate consideration of Rs 2800, the plaintiffs were entitled to joint possession of the same to the extent of their 3/8th share along with the respondents. ( 6. ) THERE was no dispute amongst the parties regarding the extent of shares of the plaintiffs, which was admittedly 3/8th in the suit lands, if the same were held to be the property belonged to joint family and the remaining 5/8th belonged to Sadya and Maniram. ( 7. ( 6. ) THERE was no dispute amongst the parties regarding the extent of shares of the plaintiffs, which was admittedly 3/8th in the suit lands, if the same were held to be the property belonged to joint family and the remaining 5/8th belonged to Sadya and Maniram. ( 7. ) THE lower appellate Court was of the view that since the plaintiffs have not adduced evidence accounting for the actual income from the joint family holding, the details of expenses and approximate savings, it could not be said that the acquisition of Khasra No. 25/3 in the name of Sadya and Maniram was out of the joint family funds. On the question of legal necessity in respect of other Khasra No. 34, which was held to be the property belonging to the joint family, the conclusion of the lower appellate Court, that legal necessity was not proved, was based on the reasonings that the proportionate consideration in respect of Khasra No. 34 out of the total amount of consideration of rs. 7000 was to the extent of Rs. 2800 and the proportionate legal necessity could be established only to the extent of Rs. 1800. Under these circumstances, the lower appellate Court directed that the appellants be placed in joint possession provided they paid Rs. 1800 to the respondents. ( 8. ) AGAINST the aforesaid judgment and decree of the lower appellate court, both the parties have preferred appeals. According to the plaintiffs, the entire suit lands comprising of both Khasra numbers belonged to the joint hindu family. It was urged that the reason given by the lower appellate Court was absolutely erroneous in law, because once it was established that the joint hindu family had a holding of about 2i acres and was being cultivated and the acquisition has been made out of the joint family funds earlier also as already held by the lower appellate Court in respect of Khasra No. 34 for Rs. 1000, it was wrong to hold that there was no evidence to support the inference that the purchase of the other Khasra number 25/3 for Rs. 1500 after two years of the purchase Khasra No. 34 could not be out of the funds of the joint Hindu family. ( 9. 1000, it was wrong to hold that there was no evidence to support the inference that the purchase of the other Khasra number 25/3 for Rs. 1500 after two years of the purchase Khasra No. 34 could not be out of the funds of the joint Hindu family. ( 9. ) I have gone through the evidence on record and find that the following facts were found proved and were more or less were not in dispute before this court: (i) That the joint Hindu family had a holding of about 25 acres in two villages and was cultivating the same. (ii) That there was no other source of income with Sadya and maniram except from the cultivation belonging to the coparcenary. (iii) That in the year 1943, Khasra No. 34 was purchased for Rs. 1000 out of the funds of the joint Hindu family by Sadya and Nandya. (iv) That the other Khasra No. 25/3 was purchased in the year 1945 i. e after about two years for Rs. 1500. The fact that the name of Maniram was shown as one of the purchasers along with Sadya, does not go against the inference that the property was the joint hindu family property. Maniram, being the adult male member of the branch of Nandya, there was nothing unnatural if his name was included instead of nandya while purchasing the other Khasra number. What mainly prevailed upon with the lower appellate Court was that the plaintiffs could not produce the account of actual income of the holding and the expenses so as to establish that it was possible to purchase Khasra No. 25/3 for Rs. 1,500 out of the funds of joint family. In my opinion the lower appellate Court erred in law in rejecting the contention of the plaintiff that Khasra number 25 /3 also belonged to the joint Hindu family. ( 10. ) ONCE it was established that the family possessed sufficient agricultural holding which from its nature and relative value, could form nucleus from which the property in question could be acquired, the burden shifted to the parly alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the funds of joint family. ( 11. ) IN the present case, it was fully established that the joint family was possessed of sufficient property which from its nature could form sufficient nucleus. ( 11. ) IN the present case, it was fully established that the joint family was possessed of sufficient property which from its nature could form sufficient nucleus. It was already found that about two years before Khasra No. 34 was acquired for Rs 1,000 out of the funds of joint family. There was nothing unnatural if the joint family could provide a sum of Rs. 1500 for purchasing the other Khasra number also; it was also undisputed that there was no other source of income, either with Sadya or with Maniram. Under these circumstances, the presumption to be made is that the purchase was made out of the family funds on behalf of the family unless contrary was proved. When no other source of income was proved, from which the property could be purchased and that was known that the family possessed sufficient ancestral holding which could form nucleus, the finding of the lower appellate Court that out of two Khasra numbers, one Khasra No. 25/3 did not belong to the joint family cannot be sustained. It is, therefore, held that the entire suit lands comprising of both the Khasra numbers were the property belonging to the coparcenary. ( 12. ) NOW the next question which remains for determination is whether the alienation made by Sadya and Maniram was for legal necessity. It was contended on behalf of the appellants that the finding recorded by the lower appellate Court after reversing the finding of the trial Court was based on no evidence at all. I have gone through the evidence on record and the judgment of the lower appellate Court. The lower appellate Court has found the legal necessity to the extent of Rs. 4500 on the following counts : (i) Antecedent loan of Rs. 2500 payable to Kashiram by the joint family. (ii) Loan of Rs. 1000 payable to cooperative society. (iii) Rs. 1000 for incurring expenses of marriage of the daughter of shivram, a separated brother of Maniram. ( 13. ) IN my opinion, the contention raised on behalf of the appellants has sufficient force. There is nothing on record, either by way of oral or documentary evidence, to show that there was any outstanding debt of Rs. 2500 payable by the family to Kashiram. ( 13. ) IN my opinion, the contention raised on behalf of the appellants has sufficient force. There is nothing on record, either by way of oral or documentary evidence, to show that there was any outstanding debt of Rs. 2500 payable by the family to Kashiram. The case put up in the written statement was that there was a nominal sale executed on 29-3-61 in favour of Kashiram of these suit lands for securing repayment of the loan. No such document has been produced. Nobody was examined to establish that there was any such transaction of loan. Under these circumstances, the mere allegation in the written statement or the mere say of the defendant in his own favour that a sum of Rs. 2500 was to be paid to Kashiram was no evidence. Even if, kashiram was dead, the defendants could have obtained certified copy of the document, which, according to them, was a nominal sale for Rs. 2500 affected on 29-3-61. The son of Kashiram, who was examined by the defendants, totally denied any knowledge of such transaction with his father Kashiram. ( 14. ) SIMILAR is the position about the outstanding debt of Rs. ;000 to the co-operative society. From the perusal of the statement (Ex. D-2) showing the position of grant of loans, repayments, and the amounts outstanding in the accounts of Sadya and Maniram with the co-operative society, it is apparent that the outstanding amount of Rs. 950 had already been repaid in March, 1963 i. e. about 2 months before the date of the sale. Undisputedly, the amount of consideration was paid in the month of May, 1963. It is, therefore, apparent that the payment made in March, 1963 discharging the entire amount of outstanding debt was not of the consideration of the sale. It is true that in the month of April, 1963, again a sum of Rs. 930 was outstanding, but from the statement (Ex. D-2), it is apparent that even after receiving the amount of consideration of the sale deed from the defendants, no payment was made towards the said balance and the same remained outstanding for three years till 9-2-1966. It is true that in the month of April, 1963, again a sum of Rs. 930 was outstanding, but from the statement (Ex. D-2), it is apparent that even after receiving the amount of consideration of the sale deed from the defendants, no payment was made towards the said balance and the same remained outstanding for three years till 9-2-1966. Thus, it is apparent that there was no such pressure upon sadya or Maniram due to the said outstanding balance in the account of co-operative society which could be regarded as serious and sufficient to justify the alienation of the property of the joint family. Had the pressure of the aforesaid amount standing due been serious, the same would have been repaid immediately on receiving the consideration of the sale. It was not done. On the contrary, no payment was made for more than two years. ( 15. ) AS regards the story, that a sum of Rs. 1000 was needed for meeting the expenses of the marriage of one niece of Maniram, being the daughter of his deceased separated brother Shivram, is also not supported by any piece of evidence on record. The only evidence in this respect is in the shape of self-serving statement of the defendant himself, who has stated that money was needed for the marriage of the niece. It was not disputed that no such marriage took place in that year. It is true that the niece of Maniram was married with Shrawan (D. W. 6) in the next year. Shrawan (D. W. 6) has stated that the family of his father in-law i. e. Shivram had sufficient cultivation of about 30 acres and the annual income from the same was about rs. 10,000. There is no evidence to show that Maniram incurred any such expense in the aforesaid marriage. No question was put to Shrawan (D. W. 6) in this respect. Under these circumstances, there is no evidence on record to support the case put up by the defendants in this respect. Had there been some evidence to support the said finding, there would have teen no scope for interference. ( 16. ) ON behalf of the appellants, it was thereafter contended that the recital of the aforesaid counts of legal necessity in the sale deed was sufficient to uphold the finding of the lower appellate Court even if there was no other evidence. ( 16. ) ON behalf of the appellants, it was thereafter contended that the recital of the aforesaid counts of legal necessity in the sale deed was sufficient to uphold the finding of the lower appellate Court even if there was no other evidence. Reliance was placed on the observations made by their Lordships of the Supreme Court in the case reported in Smt Ram and another v. Smt. Shanta Bala Debnath and others (l_ air 1971 SC 1028 ). I have gone through the aforesaid decision and find that the same is of no avail for the purposes of this case. Their Lordships of the Supreme Court have specifically observed in para 11 of the judgment that recitals of legal necessity in a deed do not by themselves prove legal necessity. The recitals may be used to corroborate other evidence of legal necessity. In the present case, as discussed above, there is no other evidence to prove the existence of legal necessity on any of the above counts. Under these circumstances, no such weight can be attached to the recitals in the sale deed so as to hold the existence of legal necessity on that basis alone. ( 17. ) FOR the reasons stated above, it is found that the finding recorded by the lower appellate Court that there was legal necessity to the extent of rs. 4500 is based on no evidence and therefore, cannot be sustained. ( 18. ) THE result, therefore, is that the alienation of the property belonging to the coparcenary of which the respondents-minor plaintiffs Nos. 1, 2 and 3 had 3/8th share, being not for legal necessity, was not binding on them. Parwatibai, the predecessor in title of the defendants could get title to the extent of the share of her vendors i. e. Sadya and Maniram, which was undisputedly 5/8th. The plaintiffs, therefore, are entitled to a decree for joint possession to the extent of their 3/8th share. ( 19. ) THE judgment and decree of the Courts below are, therefore, set aside. The claim of the plaintiffs is decreed for joint possession to the extent of their 3/8th share in the suit lands. The plaintiffs shall get 1/4th of their costs throughout from the defendants and shall bear 3/4th of the cost of the defendants throughout. The defendants are directed to place the plaintiffs in joint possession as stated above. The claim of the plaintiffs is decreed for joint possession to the extent of their 3/8th share in the suit lands. The plaintiffs shall get 1/4th of their costs throughout from the defendants and shall bear 3/4th of the cost of the defendants throughout. The defendants are directed to place the plaintiffs in joint possession as stated above. A decree be drawn up accordingly. ( 20. ) IN the result, Second Appeal No. 20 of 1971 preferred by the plaintiffs is partly allowed. The appeal preferred by the defendants i. e. Second appeal No. 726 of 1971 is dismissed. Counsels fee at Rs. 50 in each appeal, if certified. Appeal by plaintiffs partly allowed and defendants appeal dismissed.