ISHVERBHAI MADHUBHAI v. RANJITBHAI FULABHAI — 1994 DIGILAW 195 (GUJ)

K. R. VYAS, J. ( 1 ) THIS appeal has been filed by the original defendant no. 1 against the judgment and decree passed in Regular Civil Appeal No. 87 of 1976 by the learned Extra Assistant Judge Nadiad on 24-3-1977 whereby he allowed the appeal with costs and set aside the judgment and decree dated 26 passed in Regular Civil Suit No. 131 of 1973 by the learned Civil Judge (J. D.) Dakor dismissing the suit of the plaintiffs for a decree for possession and mesne profits with interest from the date of the suit vill date of delivery of possession and costs of the suit. It may be stated that the appellant herein is the original defendant no. 1 while the respondent herein are the original plaintiffs nos. 1 to 12 and original defendants nos. 2 to 5. ( 2 ) IN Regular Civil Suit no. 131 of 1973 it was the case of the plaintiffs that the plaintiffs and the defendants nos. 2 to 5 were the co-owners of ancestral property bearing no. 3/1-3 admeasuring 31 gunthas situated in the sim of village Angadia-Chapatia in Thasra Taluka out of which 21 gunthas towards the South were sold by the defendants nos. 2 3 and 5 by oral sale on 29 to the defendant no. 1 and a mutation entry bearing no. 1445 dated 26-6-1965 was made to that effect in the revenue records. The sale consideration was of Rs. 2800/ -. In the said suit it was further contended that the land was originally of the ownership of one Kabhai Ratanbhai-the plaintiffs grandmother; that the land in question was ancestral property and that the deft. no. 1 has purchased 21 gunthas of this land which was sold by defendants nos. 2 3 and 5 without any legal necessity. It may be stated that the defendants nos. 2 3 and 5 are the sons of Kabhai Ratanbhai. It was the case of the plaintiffs that they had first right in the property; that the sale of the suit land was void under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 and the agreement and the sale are void under Section 23 of the Contract Act. It was further contended that the Competent Authority under the Fragmentation Act had declared the transfer void but had permitted the defendant no. It was further contended that the Competent Authority under the Fragmentation Act had declared the transfer void but had permitted the defendant no. 1 to retain the possession instead of evicting him. In view of this it was further averred that the defendant no. 1 has not acquired any right title or interest with respect to the suit property and hence the suit was for possession. The defendant no. 1 filed written statement in the suit inter alia denying the case of the plaintiffs and contended that the plaintiffs have no right to file the suit; that the suit was not properly instituted; that it is true that 21 gunthas of land were purchased by him on oral contract and that he (the defendant no. 1) had paid Rs. 2001/- towards sale consideration on 12 to the defendants nos. 2 3 and 5 and had thus purchased the suit land for Rs. 2001/- and obtained possession thereof but the defendant no. 4 had not signed the document and thereafter demanded more moneys and hence the defendant no. 1 paid Rs. 800/- on 29-6-1965 whereupon they made a statement in the Varahi book to have the property mutated in the name of the defendant no. 1. The defendant no. 1 also denied that the suit property was not sold without any legal necessity. According to the defendant no. 1 the defendant nos. 2 3 and 5 required moneys for the maintenance or the family obsequial ceremony of their deceased father and for repaying the debt incurred by their father. The defendant no. 1 denied that the transaction is void under the provisions of the Fragmentation Act; that the State Government is the final authority and that the Civil Court has no jurisdiction to take any decision with respect to the final order of the Assistant Collector whereby the defendant no. 1 was allowed to continue to retain possession in any manner under Section 53 (A) of the Transfer of Property Act and therefore the defendant no. 1 is entitled to retain possession of the suit land. ( 3 ) THE defendants nos. 2 to 5 in their written statement Exh. 6 inter alia contended that the property in question was ancesstral property of the plaintiffs and that the defendants nos. 2 to 5 inherited the same from Kabhai Ratanbhai. 1 is entitled to retain possession of the suit land. ( 3 ) THE defendants nos. 2 to 5 in their written statement Exh. 6 inter alia contended that the property in question was ancesstral property of the plaintiffs and that the defendants nos. 2 to 5 inherited the same from Kabhai Ratanbhai. The said defendants have admitted of the oral sale having taken place on 29-6-1965 to the defendant no. 1 and that the entry was accordingly effected in the revenue records. It was further contended that it was true that the said defendants have sold the suit property to the defendant no. 1 without any legal necessity and that the plaintiffs were the co-purchasers and joint owners with the defendants nos. 2 to 5. It is the case of the said defendants that the sale was in contravention of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 which is void and therefore the defendant no. 1 had not acquired any legal title over the suit property. ( 4 ) THE learned trial Judge while dismissing the suit of the plaintiffs held that the suit was tenable and the suit property was ancesstral property. It was further held that it was not proved that the defendants nos. 2 to 5 had transferred the suit property to the defendant no. 1 without any legal necessity and that the sale was in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 It was also held that the plaintiffs were not entitled to get back the suit land from the defendant no. 1 and that the sale dated 29-6-1965 is illegal and that the defendant no. 1 was a trespasser of the suit land. According to the learned trial Judge the defendant no. 1 proved that his possession was protected under Section 53 of the Transfer of Property Act and that the Court has got jurisdiction to decide the suit. In the appeal the learned Extra Assistant Judge Nadiad held that the transaction between the defendant no. 1 and the defendants nos. 2 to 5 is void under the provisions of the B. P. F. C. H. Act and therefore the plaintiffs are entitled to recover possession of the suit property. In the appeal the learned Extra Assistant Judge Nadiad held that the transaction between the defendant no. 1 and the defendants nos. 2 to 5 is void under the provisions of the B. P. F. C. H. Act and therefore the plaintiffs are entitled to recover possession of the suit property. With regard to the issue of legal necessity the learned Extra Assistant Judge observed that there was no legal necessity for the defendants nos. 2 to 5 to transfer the land to the defendant no. 1. As stated above the appellants have challenged the said judgment and decree in the present appeal. ( 5 ) MR. A. J. Patel learned Advocate for the appellant after having taken me through the material on records and the relevant provisions of law submitted that it was cut of legal necessity that the defendants nos. 2 to 5 had transferred the land in question favour of the defendant no. 1 and that the learned Extra Assistant Judge has committed error in as much as he has completed overlooked the evidence on record in holding that there was no legal necessity on the part of the defendants nos. 2 to 5 Mr. Patel further submitted that in the proceedings initiated under the provisions of the B. P. F. C. H. Act against the defendants nos. 2 to 5 and the defendant no. 1 by the authorities under the Act for creating fragments even though the authorities have declared the said transaction as void have not passed any order vacating the defendant no. 1 from the land in question and instead fine was imposed on the defendant no. 1 meaning thereby the defendant no. 1 was allowed to retain his possession on the land in question. The said order of the authority was in fact challenged in Revision however the defendants nos. 2 to 5 ultimately withdrew that Revision. Mr. Patel therefore submitted that since the order has become final it is not open for the plaintiffs to claim their shares on the ground that they are the co-owners. In the submission of Mr. Patel the jurisdiction of the Civil Court is specifically barred under the provisions of the B. P. F. C. H. Act and therefore the Civil Suit initiated by the plaintiffs itself is not maintainable. On the other hand Mr. Kalidas Vyas-party-in-person who appeared as next friend of opponent Nos. In the submission of Mr. Patel the jurisdiction of the Civil Court is specifically barred under the provisions of the B. P. F. C. H. Act and therefore the Civil Suit initiated by the plaintiffs itself is not maintainable. On the other hand Mr. Kalidas Vyas-party-in-person who appeared as next friend of opponent Nos. 1 to 7 and Mr. P. B. Majmudar learned Advocate for the opponents nos. 8 to 12 has supported the judgment of the lower Appellate Court. ( 6 ) IT is an undisputed fact that the suit land was originally owned by deceased Kabhai who died on 7-10-1962 and the defendants nos. 2 to 5 are the sons of deceased Kabhai. The plaintiff no. 1 is the son of the defendant no. 13 and the plaintiffs nos. 2 6 and 7 are the sons of defendant no. 4. The plaintiffs nos. 3 and 4 are the sons of the defendant no. 5. The plaintiff no. 5 is the son of defendant no. 3 and the plaintiffs nos. 8 to 12 are the sons of the defendant no. 2. Some of the plaintiffs were minors when Kabhai died. It is now well sealed that under the Hindu Law a Hindu father can alienate coparcenary property by selling mortgaging the ancesstral property movable or immovable including the interest of his sons grandsons far the payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purpose. In other words he cannot alienate coparcenary property except for legal necessity or for the benefit of the family. It therefore follows that if a father alienates coparcenary property for payment of his own debt which was an antecedent debt and was not incurred by any immoral or illegal purpose but out of legal necessity the said alienation is binding to his son grandson as the case may be. In the instant case the evidence on the point of legal necessity led by the appellant as well as his witness Chhotabhai Bulabhai clearly reveals that the defendants nos. 2 to 5 have taken money for then purpose of performing obsequial ceremony of their father and for paying his debts which will cover the act of legal necessity. ( 7 ) AS stated above the father ar the defendants nos. 2 to 5 died on 7-10-1962. As per the evidence of the appellant Rs. 2 to 5 have taken money for then purpose of performing obsequial ceremony of their father and for paying his debts which will cover the act of legal necessity. ( 7 ) AS stated above the father ar the defendants nos. 2 to 5 died on 7-10-1962. As per the evidence of the appellant Rs. 1500/- were paid to the defendants nos. 2 to 5 for the expenses in connection with obsequial ceremony and Rs. 501/- were paid when the contract of sale came to be executed on 12-12-1962. It has also come in evidence that Rs. 281/- were paid by the appellant to Husseinkhan Mohmedkhan and Sikanderkhan Mohmedkhan for getting their names deleted from the record of sights and another amount of Rs. 519 were also paid in all Rs. 2800/- and a mutation entry was accordingly got effected by giving Vardhi by the defendants nos. 2 to 5 on 2961965 The learned trial Judge has observed:"the contract of sale of land is on record at Exh. 43 and the certified copy of the Vardhi is at Exh. 33 It is the say of the defendant no. 1 that when the contract of sale was to be executed the defendant no. 4 was not present and subsequently at somebodys instigation to get more amount he did not sign the same. The theory appears to be plausible as can be seen from Exh. 33 which is signed by all the four defendants nos. 2 to 5 and the Vardhi Exh. 33 is effected for Rs. 2800/ -. Defendants nos. 3 4 and 5 have not led any oral evidence. In pursuance of Exh. 33 a mutation entry no. 1445 dated 29th June 1965 Exh. 34 was effected and was carried into the record of rights 7/12 (Exh. 35 ). Exh. 43 is the contract of sale alleged to have been signed by the defendants nos. 2 3 and 5 and is written by one Ratilal Govindbhai and attested by two witnesses Umarkhan Rahimkhan and Chhotabhai Bhulabhai. Since both of them are dead the witness Chhotabhai is examined by the defendant no. 1 at Exh. 50 who fully supports the execution of the said contract of sale Exh. 43 and the receipt of money thereunder. " ( 8 ) IN view of this evidence on record I am of the view that the defendants nos. Since both of them are dead the witness Chhotabhai is examined by the defendant no. 1 at Exh. 50 who fully supports the execution of the said contract of sale Exh. 43 and the receipt of money thereunder. " ( 8 ) IN view of this evidence on record I am of the view that the defendants nos. 2 to 5 being the father of the plaintiffs have under their special power transferred the suit land to the defendant no. 1 appellant for paying their personal debts which was an antecedent debt and not incurred for any illegal or immoral purpose and therefore the legal necessity is clearly established. ( 9 ) ON behalf of the respondents it was contended that the question of legal necessity is purely a question of fact and this Court sitting in Second Appeal is not entitled to reappreciate the evidence on record and come to a different conclusion from the one arrived at by the Lower Appellate Court True it is not open for the High Court to reappreciate the evidence on record and to disturb the finding of fact recorded by the Courts below. However the High Court cannot rightly hold the said proposition ignoring the overwhelming evidence on record which is totally ignored by the Lower Appellate Court. In the instant case the learned Extra Assistant Judge has negatived the case of legal necessity on the ground that there is no reference in the document Exh. 43 as to for what purpose the property was sold by the defendants nos. 2 to 5 to the defendant no. 1 and secondly there is no evidence on record and no witness is examined to show that deceased Kabhai Ratanbhai had incurred any debt. In my opinion none of the reasons given by the learned Extra Assistant Judge are convincing. It is not obligatory to mention the purpose and the circumstances under which the property was sold in the document of sale. Looking to the oral evidence of the defendant no. 1 wherein he has clearly stated that the father of the defendants nos. 2 to 5 had incurred debt and they wanted moneys for performing obsequial ceremony there is no reason to disbelieve the evidence of Chhotabhai who in his evidence has given all details regarding the purpose of borrowing the amount by the defendants nos. 2 to 5 from the defendant no. 2 to 5 had incurred debt and they wanted moneys for performing obsequial ceremony there is no reason to disbelieve the evidence of Chhotabhai who in his evidence has given all details regarding the purpose of borrowing the amount by the defendants nos. 2 to 5 from the defendant no. 1 and spending of the amount for performing obsequial ceremony. Similarly the reasoning given by the learned Extra Assistant Judge that the defendant no. 1 had not made enquiries regarding the debt incurred by the deceased is in my view uncalled for. It would be too much to expect to make such enquiry. Why should a money lender enquire about the debt of the borrower? It is for the borrower to explain the situation. In the instant sufficient evidence has not been led by the defendants nos. 2 to 5 in absence of which I hold that the learned Extra Assistant Judge has not properly appreciated the question of legal necessity. In the light of what is stated above the finding recorded by the learned Extra Assistant Judge on legal necessity is required to be set aside and I hold that the defendants nos. 2 to 5 out of legal necessity sold the land in question to the defendant no. 1 with a view to performing the obsequial ceremony of their father which is a legal necessity and therefore the said act is binding to the plaintiffs. ( 10 ) REGARDING the bar of Civil Courts Jurisdiction to decide the question involved under the Bom. Prevn. of Frag. and Court of Holdings Act in view of the finality of the order passed by the authorities under the said Act it is necessary to look into certain provisions of the said Act Section 9 whereof deals with penalty for transfer or partition contrary to provisions of the Act. As per subsection (1) of section 9 the transfer or partition of any land contrary to the provisions of the Act shall be void. As per sub-section (2) of Section 9 the authority under the Act is empowered to impose fine which shall not extent Rs. As per subsection (1) of section 9 the transfer or partition of any land contrary to the provisions of the Act shall be void. As per sub-section (2) of Section 9 the authority under the Act is empowered to impose fine which shall not extent Rs. 250/- to the owner of the land who transferred or partitioned the land and as per sub-section (3) of Section 9 the Collector may summarily evict any person unauthorisedly occupying or wrongfully in possession of the land the transfer or partition of which either by the act of parties or by the operation of law is declared void. Reading the order passed by the Dy. Secretary dated December 19 1973 it appears that the Asstt. Collector by his order dated 19-7-1971 has desired the transaction of sale between the defendants nos. 2 to 5 on one hand and the defendant no. 1 on the other as illegal. However he has permitted the defendant no. 1-appellant to continue his possession and imposed a fine of Rs. 50 to the vendor i. e. the defendants nos. 2 to 5 which was challenged by the defendant no. 2-Fulabhai Kabhai by filing Revision Application to the State Government. The State Government on 28-4-1972 remanded the case to the Prant Officer. The Prant Officer on 16-8-1973 declared the sale transaction as illegal and imposed fine of Rs. 100/- to the vendor and the defendant no. 1 was allowed to continue his possession on the suit property. The said order was challenged by the defendant no. 2 on behalf of the other defendant before the State Government by none other than Kalidas Punjabhai who appears in the present appeal. However on 17-12-1973 an application was given to withdraw the said Revision Application. The Dy. Secretary (Appeals) by his order dated 19th December 1973 permitted the applicant to withdraw the Revision Application. Mr. Patel learned Advocate for the appellant submitted that in view of the withdrawal of the Revision Application by the defendant no. 2 the order passed by the Prant Officer Anand dated 1-8-1973 has become final whereby the appellant was allowed to retain his possession and in view of Sec. 36 (A) (2) the said order cannot be questioned in any Civil Court or Mamlatdars Court. 2 the order passed by the Prant Officer Anand dated 1-8-1973 has become final whereby the appellant was allowed to retain his possession and in view of Sec. 36 (A) (2) the said order cannot be questioned in any Civil Court or Mamlatdars Court. Section 36 (A) deals with bar of jurisdiction which reads as under:"no Civil Court or Mamlatdars Court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the State Government or any other Officer or authority. " ( 11 ) LOOKING to the language of Section 36 (A) of the Act it becomes evident that Civil Court or Mamlatdar Court has no jurisdiction to settle decide or deal with any question which is by or under the Act required to be settled decided or dealt with by the State Government or the authority and secondly the order made under this Act by the State Government or the authority shall not be questioned by the Civil Court or Mamlatdars Court. In substance only the State Government or the authorities under the Act are empowered to decide any question under the Act and whatever is the order passed by the State Government or the authority under the Act is unquestionable in any Civil Court or Mamlatdars Court. The emphasis laid on the words Any question which is by or under the Act in the section would clearly reveal that the Government or the Officer or the Authority can decide only that question which is required to be settled or decided under the Act and such a question decided under the Act by the State Government or the Officer or the Authority is not challengeable in the Civil Court or Mamlatdars Court. ( 12 ) IN the instant case as stated above the authorities under the Act declared the transaction between the defendant no. 1 and the defendant nos. 2 to 5 as void. The authorities could have evicted the defendant no. 1 from the land in question in view of the findings recorded by the authorities however the authorities allowed the defendant no. 1 to retain possession of the land in question and imposed a fine on the defendant nos. 2 to 5 for selling the land in question to the defendant no. The authorities could have evicted the defendant no. 1 from the land in question in view of the findings recorded by the authorities however the authorities allowed the defendant no. 1 to retain possession of the land in question and imposed a fine on the defendant nos. 2 to 5 for selling the land in question to the defendant no. 1 as in the opinion of the authority the sale transaction was contrary to the provisions of the Act. Mr. Patel learned Advocate for the appellant submitted that in view of the provisions of Section 36 (A) of the Act he is not open for the plaintiff to question the decision of the authorities under the Act in the present suit as the Civil Court has no jurisdiction to decide the questions involved under the Act In the submission of Mr. Patel the authorities under the Act by their impugned order have permitted the appellant to retain his possession even though the sale has been declared as void and unless and until the said order is challenged in the further proceedings provided under the Act which is not done in the present case and therefore in that view of the matter. Civil Court cannot grant any relief of handing over the possession of the land in question to the plaintiff. I am afraid I cannot accept the submission of Mr. Patel. The proposition advanced by Mr. Patel is too broad. True in the instant case the authorities have permitted appellant to retain the possession of the land in question even though a finding has been recorded that the transaction of sale in favour of the appellant is void. Now if the transaction is void ab initio any party of having interest in the property can initiate the proceedings which may include even the filing of the suit for eviction as it is open for the party to contend before the Court that the possession of the other party on the land in question is unauthorised and that he is a trespasser. The plaintiffs in the instant case are not challenging the decision of the Competent Authority passed under the Act allowing the appellant to retain possession nor raising any question to be settled or decided under the Act but on the contrary relying on the decision that the transaction entered into between the appellant (the defendant no. The plaintiffs in the instant case are not challenging the decision of the Competent Authority passed under the Act allowing the appellant to retain possession nor raising any question to be settled or decided under the Act but on the contrary relying on the decision that the transaction entered into between the appellant (the defendant no. 13 and the defendants nos. 2 to 5 as void have filed the present suit on various other grounds namely that they are the heirs of deceased Kabhai and therefore they have interest in the suit property; that there was no legal necessity on the part of the defendants nos. 2 to 5 to dispose of the property in favour of the defendant no. 1 and that the oral sale transaction is contrary to the provisions of the Registration Act and the Contract Act. Since all these questions including the question of title can only be decided by the Civil Court I am of the view that the plaintiffs are entitled to the the present suit. In this view of the matter there is no merit in the submission of Mr. Patel that the Civil Court has no jurisdiction to decide the questions involved in the matter which is already decided by the authorities under the Act. However in view of the finding on the point of legal necessity recorded by me in favour of the appellant the appeal is required to be allowed. The defendants nos. 2 to 5 out of legal necessity alienated the suit property in favour of the defendant no. 1 (appellant herein) and they were within their rights in alienating the property in question. It is not open for the plaintiffs (respondents herein) to challenge the said act of the defendants nos. 2 to 5 (respondents nos. 13 to 16 herein) as the said act of the defendants nos. 2 to 5 is also binding to the plaintiffs. In this view of the matter the plaintiff are not entitled to the relief as prayed for by them in the plaint. ( 13 ) BEFORE parting with mention requires to be made here that in this matter in the midst of the arguments Mr. A. J. Patel ld. 2 to 5 is also binding to the plaintiffs. In this view of the matter the plaintiff are not entitled to the relief as prayed for by them in the plaint. ( 13 ) BEFORE parting with mention requires to be made here that in this matter in the midst of the arguments Mr. A. J. Patel ld. Advocate for the appellant has fairly offered a concession by stating before this Court that irrespective of the result of the appeal the appellant is ready and writing to pay any reasonable amount that may be suggested by the Court to the original plaintiff. In pursuance to the said statement the original plaintiffs were called before this Court but they have not shown any inclination to accept the amount as they are more interested in she land. However since the plaintiffs were adamant this Court had to proceed further with the hearing of the appeal. After this judgment was dictated in the open Court I had again inquired from Mr. Patel as to whether he is still prepared to pay the amount to the plaintiffs. Mr. Patel with his usual fairness voluntarily makes a statement that even though the appellant has succeeded the appellant will deposit a lumpsum amount of Rs. 25 0 as price of the land in question. I appreciate the gesture of Mr. Patel and with a view to affording yet another opportunity to the plaintiffs to avail of the said amount if they so desire the appellant is directed to deposit an amount or Rs. 25 0 before this Court within three months from today and the original plaintiffs will be at liberty withdraw the same on condition that they file necessary affidavits before this Court in advance and in token of having accepted this judgment However in case the plaintiffs decide to challenge this judgment before the higher Court the amount deposited by the appellant may be returned to him. This appeal stands accordingly allowed. The judgment and decree passed by the learned Extra Asstt. Judge Kaira at Nadiad in Civil Appeal No. 87 of 1976 is hereby quashed and set aside and the judgment and decree dated 26-3-1976 passed in Reg. Civil Suit no. 131 of 1973 by the learned Civil Judge (J. D.) at Dakor is hereby confirmed. In facts of this case there will be no orders as to costs. Appeal Allowed. .