SHIVVARUDRAIAH v. K. N. MARUTHI PRAKASH — 1996 DIGILAW 403 (KAR)

H. N. TILHARI, J. ( 1 ) THIS second appeal arises from the judgment and decree dated 28-2-1992 delivered by Sri a. Krishnappa, learned additional civil judge, tumkur, in regular appeal No. 56 of 1987 (Shivarudraiah v K. N. Maruthi Prakash and others) dismissing the defendant's first appeal and affirming the judgment and decree dated 30-6-1987 delivered by the learned principal munsiff, tumkur (i. e. Sri k. Rachaiah) decreeing the plaintiffs' suit for declaration that the suit schedule properties being joint family properties, alienation made by the defendant 2 on 14-8-1974 in respect thereof, is not binding on the undivided interest of the plaintiffs and for possession vide original suit No. 94 of 1982. ( 2 ) THE plaintiffs' case is that all the suit schedule properties have been ancestral and joint family properties of the plaintiffs and the 2nd defendant. That 2nd defendant-respondent has sold the schedule properties on 14-8-1974 in favour of the original 1st defendant, now whose heir is the appellant in this appeal, without any legal necessity or pressure. So the said alienation is not binding on the undivided interest and share of the plaintiff-appellant. The plaintiff claimed the reliefs mentioned earlier. That the 1st defendant contested the suit and filed a written statement and asserted that the sale of the suit properties in his favour was for legal necessity and for the benefit of the family. The defendant-respondent alleged that the sale of the suit properties in favour of the original defendant 1 has been for performing the marriage of the youngest daughter of the plaintiff. ( 3 ) ON the basis of the pleadings of the parties, the trial court framed the issues as under: (a) whether the suit schedule properties were sold for legal necessity? (b) whether the plaintiffs are entitled for declaration declaring that the alienation dated 14-8-1974 is not binding on the undivided interest of the plaintiff in the suit schedule properties? (c) whether the plaintiff are entitled for possession? (d) whether the plaintiffs are entitled for mesne profits, if so, at what rate? (e) is the suit not maintainable as stated in para 4 of the written statement? (f) to what Order and decree? ( 4 ) THE trial court on a consideration of the evidence on record, held that the defendant failed to prove that the suit was not maintainable. (e) is the suit not maintainable as stated in para 4 of the written statement? (f) to what Order and decree? ( 4 ) THE trial court on a consideration of the evidence on record, held that the defendant failed to prove that the suit was not maintainable. It further held that defendant has failed to prove that defendant 1 had sold the suit properties for any legal necessity or for payment of any antecedent and alienation has to be get aside in the interest of the plaintiffs. The trial court further held that as transfer of the suit properties was neither made in the interest of the family nor for legal necessity nor to clear off the antecedent debts and defendants have also failed to prove any legal necessity. So plaintiffs are entitled to the declaration sought for that the alienation made by the defendant 2 in favour of defendant 1 under a registered sale deed ex. D-1, dated 14-8-1974 is not binding on the plaintiffs or on plaintiffs' undivided interest. It further held that the plaintiffs are entitled for possession of their share in the suit properties. The trial court held that plaintiffs have to get their shares in the suit properties ascertained and then and then only they may be entitled to get the mesne profits. The court held that in this suit it cannot be determined, but the plaintiffs have to file a separate suit to ascertain their mesne profits after getting the possession of the suit properties and the issue 4 was negatived. Having recorded these evidences, the trial court decreed the plaintiffs' claim for declaration that the alienation made by defendant 2 in favour of the appellant's father who was original defendant 1 on 14-8-1974 is not binding on the plaintiffs-respondents share and interest in the schedule properties. It further held that the plaintiffs are entitled for possession of their shares in the suit properties as well. ( 5 ) FEELING aggrieved from the judgment and decree of the trial court, the defendant-vendee preferred the first appeal and the learned lower appellate court dismissed the appeal and affirmed the findings of the trial court. Having been aggrieved by the judgment and decree of the lower appellate court, the defendant 1 i. e. , original vendor's son has preferred this second appeal under Section 100 of Civil Procedure Code. Having been aggrieved by the judgment and decree of the lower appellate court, the defendant 1 i. e. , original vendor's son has preferred this second appeal under Section 100 of Civil Procedure Code. ( 6 ) I have heard Sri c. Ramakrishna, learned counsel for the appellant and Sri t. n. viswanatha, learned counsel for the respondents. ( 7 ) THE learned counsel for the appellant contended before me that the recital of the legal necessity in ex. D-1 was admissible in evidence to prove the legal necessity and the learned two courts below committed the error of law in recording the finding against the defendant that he has failed to prove the legal necessity without giving due effect and importance to that recital. He further contended that the two courts below have wrongly adverted while placing reliance on the principles laid in the case of Smt. Rani and another v Smt. Santa Bala Debnath and others. The learned counsel for. the appellant also submitted that the matter may be remanded to the court below for reconsideration or retrial. The learned counsel submitted that the recitals of legal necessity in sale deed ex. D-l executed by the father and the manager of the family, 3rd respondent is binding on the interest of the respondents 1 and 2. ( 8 ) THE contentions made by the learned counsel for the appellant had been hotly contested by Sri t. n. viswanath, learned counsel for the respondents. The learned counsel for the respondents submitted that the findings have been recorded by the courts below concurrently that it has not been established that the transaction of sale exhibited by ex. D-1, dated 14-8-1974 has been entered into on account of legal necessity and it is a pure finding of fact. The learned counsel submitted that what to say of legal necessity the finding is that the appellant-defendant failed to prove any necessity or legal necessity with reference to the transaction of sale and as that finding is a concurrent finding of fact, it does not call for interference by this court under Section 100 of the Code of Civil Procedure. The learned counsel for the respondents further submitted that the appellant's counsel has been wrong in submitting that recitals in the sale deed has not been considered by the two courts below. The learned counsel for the respondents further submitted that the appellant's counsel has been wrong in submitting that recitals in the sale deed has not been considered by the two courts below. The learned counsel submitted that the courts below have applied their mind to the recitals made in the sale deed about legal necessity. But the recital by itself cannot be taken as a conclusive evidence of legal necessity. Its probative value depends if there is any other oral or circumstantial evidence to prove legal necessity. Then and then only, the recitals made in the sale deed can be taken into consideration as a corroborative piece of evidence and the courts beknpr have found that there is no evidence of legal necessity and therefore courts below have rightly held that the recitals of legal necessity in the sale deed is not sufficient to prove the existence of legal necessity. The learned counsel for the respondents in suppprt of his contentions made a reference to the decision of their lordships of the Supreme Court in Smt. Rani's case, supra. He also made reference to the division bench decision of this court in the case of Ganapati Santaram Bhosale and another v Ramachandra Subbarao Kulkarni and others1. The learned counsel further submitted that this is not a fit case for remand nor appellant has shown any justifiable ground for remand. The learned counsel for the respondents submitted that this second appeal is liable to be dismissed on the ground that it is concluded by pure and simple concurrent finding of fact and does not suffer from any error of law or substantial error of law. ( 9 ) I have applied my mind to the contentions made by the earned counsel for the parties and I am of the considered view that so far as the recitals in the sale deed are concerned, they by their ownselves may be taken to be not sufficient to prove the legal necessity. But if there is any other evidence than the recitals, either oral or circumstantial evidence, which shows existence of legal necessity to make the transfer or alienation then the recitals in the sale deed as to the existence of legal necessity can well as a corroborative piece of evidence be considered as to the existence of legal necessity. But if there is any other evidence than the recitals, either oral or circumstantial evidence, which shows existence of legal necessity to make the transfer or alienation then the recitals in the sale deed as to the existence of legal necessity can well as a corroborative piece of evidence be considered as to the existence of legal necessity. This has been the view laid down by their lordships of the Supreme Court in the case of Smt. Rani's case, supra. It will be profitable to quote the following observations of their lordships:these observations of their lordships per se reveal that if there is oral or circumstantial evidence to prove the existence of legal necessity, the recitals in the sale deed about legal necessity may be considered as a corroborative piece of evidence. But if there is no evidence oral or circumstantial and the parties seek to rely on the recitals of the deed, then the recitals in the deed as to the legal necessity by themselves do not prove legal necessity. The onus in this case would be discharged by the appellant by either furnishing proof of the actual necessity or at least by proof that he made proper and bona fide enquiries about the existence of the legal necessity and he did all that was reasonable to satisfy himself about the existence of the legal necessity. The learned counsel for the appellant has failed to point out any such piece of evidence which could be said not to have been considered. When this is the position, in my opinion, the finding recorded by the two courts below that there did not exist legal necessity for making alienation and the ground on which alienation is sought to be justified namely the marriage of the youngest daughter by itself had all been shown to be false and concoiction and the marriage of the appellant's youngest daughter was held in the year 1969 whereas the alienation was made in the year 1974. The courts concluded that no evidence has been put or placed before it that the transfer was for the legal necessity nor any evidence has been produced to show that it was for payment of antecedent. I put question to the learned counsel for the appellant in this respect and the learned counsel very fairly submitted that there has been no such case of antecedent debt etc. I put question to the learned counsel for the appellant in this respect and the learned counsel very fairly submitted that there has been no such case of antecedent debt etc. ( 10 ) THUS, considered in my opinion, the present second appeal is concluded by pure and simple concurrent finding of fact that there did not exist any necessity or legal necessity for making the alienation on 14-8-1974 vide ex. D-1. In this view of the matter, the learned courts below were justified in holding the sale deed in question not to be binding on the interest and share of the plaintiffs-respondents in schedule properties and they rightly held that the plaintiffs to be entitled to the declaration thai, the transaction or alienation exhibited by deed dated 14-1-1974 did not effect plaintiffs interest or share and they are entitled for possession. No other contention except the contentions referred to above has been made before me in support of the appeal. ( 11 ) THUS, considered in my opinion, the appeal is concluded by concurrent finding of fact and deserves to be dismissed and it is hereby dismissed with costs. --- *** --- .