JUDGMENT :- By this appeal, the appellant has challenged the judgment and order dated 5th May, 1979 passed by the Extra 2008(5) ALL MR 233 IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH) A. P. BHANGALE, J. Ramchandra s/o. Maruti Bhoyar (Since Deceased through L.Rs.) Vs. Ramesh s/o. Narayan Gawande & Ors. Second Appeal No.241 of 1979 13th June, 2008. Mr. M. M. SUDAME, Advocate for Appellant. Mr. V. P. PANPALIA with Mr. A. P. TATHOD, Advocates for Respondents No.1 and 2. Civil P.C. (1908), S.100 - Second appeal- Suit for declaration and possession - Dismissal of - Earlier suit was filed between parties for specific performance of agreement to sell Suit was contested by defendants alleging transaction as outcome of money lending transaction - Said suit ended by compromise - There were no recitals in application to indicate that agreement to sell in favour of alienee was for legal necessity nor agreement to sell mentioned it - Under circumstances suit by sons of Karta challenging binding effect of agreement to sell suit field is maintainable - Order of trial court dismissing suit - Improper.(Paras 16, 17, 18) CASES CITED: PARA Ambika Prasad Thakur Vs. Ram Ekbal Rai, AIR 1966 SC 605 ...................................... 10 Virdhachalam Pillai Vs. Chaldean Syrian Bank, AIR 1964 SC 1425 ....................................10 Luhar Amrit Lal Nagji Vs. Doshi Jayantilal, AIR 1960 SC 964 ...................................... 10 S. M. Jakati Vs. S. M. Borkar. AIR 1959 SC 282............................................................. 10 JUDGMENT :- By this appeal. the appellant has challenged the judgment and order dated 5th May, 1979 passed by the Extra Assistant 0Judge, Akola in Regular Civil Appeal No.145 of 1976. 2. The facts, in brief, which have led to the filing of present appeal are as under: Present respondents no.1 and 2 viz. Ramesh and Vitthal both sons of Narayan Gawande filed Regular Civil Suit No.70 of 1972 for declaration and for consequential reliefs and in the alternative for petition and separate possession. Suit was filed against present appellant and Narayan Bapuji Gawande and Pisabai w/o. Narayan Gawande, since deceased and who were arrayed as respondents no.3 and 4 herein. Pal1ies shall hereinafter be referred as per their original status in suit. 3. Suit was filed against present appellant and Narayan Bapuji Gawande and Pisabai w/o. Narayan Gawande, since deceased and who were arrayed as respondents no.3 and 4 herein. Pal1ies shall hereinafter be referred as per their original status in suit. 3. Earlier to that, defendant no.3 Ramchandra Maroti Bhoyar had filed Regular Civil Suit No.37 of 1966 against defendant no.1 Narayan for specific performance of contract before the Civil Judge, Junior Division, Murtizapur alleging that defendant no.1 had executed an agreement to sell dated 21-08-1963 agreeing to sell 4 acres of land out of survey number 79 situated at mouza Akhatwada, Tahsil MUl1izapur, District Akola for a consideration of Rs.1,000/- out of which defendant no.3 had paid Rs.7501- by way of earnest money and rest of the consideration was payable at the time of registration of sale which was scheduled on or before 28-01-1964. Since defendant no.1 failed to execute sale deed, defendant no.3 was constrained to file the said civil suit. That suit was initially contested by defendant no.1 Narayan alleging that the transaction was an outcome of money-lending transaction. However, in the said suit there was compromise by and between the parties vide pursis dated 10-02-1969. In that, it was agreed that defendant no.3 (plaintiff therein) shall pay Rs.9001- to defendant no. 1 (defendant therein) and upon such payment defendant no.1 shall execute sale deed in favour of defendant no.3. It is not disputed herein that defendant no.3 Ramchandra had received possession of suit land through the Court. 4. Now, turning to the facts of present case, it was averred that on or about 05-09-1972 defendant no.1 had effected partition of ancestral property. However, since that partition was not proper and legal it was not binding on plaintiffs. It was further averred that sale of 4 acres of land in favour of defendant no.3 by defendant no. was not for legal necessitv and it was an outcome of moneylending transaction between them. They prayed for a declaratory relief that judgment and decree passed in Regular Civil Suit No.37 of 1966 is not binding on them and prayed for partition and separate possession. Defendants no.1 and 2 did not take part in the suit proceedings and they were proceeded ex-parte. Defendant no.3 filed Written Statement alleging that defendant no. I was already heavily indebted and he wanted funds for marriage expenses of his son. Defendants no.1 and 2 did not take part in the suit proceedings and they were proceeded ex-parte. Defendant no.3 filed Written Statement alleging that defendant no. I was already heavily indebted and he wanted funds for marriage expenses of his son. He contended that the sale was out of legal necessity and that the suit was filed by plaintiffs In collusion with defendant no.1. He prayed for dismissal of suit. 5. Learned Trial Court held that partition in question was properly effected and that the plaintiffs were not entitled to reopen the partition. It further held that the sale by defendant no.1 was for legal necessity; suit was barred under Order 7. rule 11 CPC and that consent decree passed in his favour was binding on the plaintiffs. Consequently, the Trial Court dismissed the suit in entirety. 6. Plaintiffs preferred appeal under Section 96 of the Code of Civil Procedure challenging the judgment and order passed by the Trial Court before the District Judge. Akola. The Extra Assistant Judge. Akola who heard the appeal. reversed the findings of the Trial Court. It held that the sale of suit property and compromise decree do not bind the plaintiffs" share and it binds the interest of defendant no.1 only. It held that the plaintiffs are entitled to Joint possession of the same with defendant no.3. Consequently, it allowed the appeal. The lower Appellate Court. However, granted liberty to the defendant no.3 to bring suit for partition and separate possession of his share in the suit property purchased by him from defendant no, 1. 7. Being aggrieved by the Judgment and order of the 1st appellate court. the original defendant no,3 Ramchandra has filed present second appeal before this, Court. Appeal came to be admitted on 31-08-1979 on the following substantial questions of law: "(1) Whether the consent decree passed in Suit No.37/66 is binding on the plaintiffs? (2) Whether the plaintiffs are entitled to reopen a partition in absence of any pleading of fraud or mistake 100 8. It was pointed out to me by learned counsel for respondents no. 1 and 2 that during the pendency of this appeal. respondents no.3 and 4 have died and civil application for grant of permission to bring their legal heirs on record was rejected by the Court. It was pointed out to me by learned counsel for respondents no. 1 and 2 that during the pendency of this appeal. respondents no.3 and 4 have died and civil application for grant of permission to bring their legal heirs on record was rejected by the Court. In view of this submission which is not disputed by learned counsel for appellants, appeal has stood abated as against respondents no. 1 and 2 viz. Narayan and Pisabai. 9. During the pendency of appeal appellant Ramchandra has died and in his place his legal representative Manohar Jagannath Bhoyar ha, been brought on record. Similarly. during the pendency of appeal respondent no.2 Vithal has also died and in his place, his legal representatives have been brought on record. 10. I have heard Mr. M. M. Sudame, learned counsel for appellant and Mr. V, P. Panpalia. learned counsel for respondents no. 1 and 2 at length. Mr. Sudame 'trenuously submitted that alienation of family property by Karta can be called in questioningly if the members of such family plead and prove that Karta was given to vices like gambling, satta etc. or that the alienation was- for immoral purposes. Mr. Sudame heavily relied upon admission of defendant no. 1 Narayan in Civil Suit No.53 of 1973 to the effect that he had taken Rs.700/- from Ramchandra (present appellant) for the marriage of his son. Mr. Sudame also submitted that deceased Narayan was heavily indehted and he was 10 need of money to meet family expenses and the purpose of selling the suit property was never immoral and it was for the benefit of family. Mr. Sudame placed reliance on Ambika Prasad Thakur & ors. Vs. Ram Ekbal Rai (AIR 1966 SC 60S) where the Supreme Court has observed in paragraph 13 that admission made by witness in other litigation is admissible against him alone and not against other defendants. He further relied on judgment of the Supreme Court in Virdhachalam Pillai Vs. Chaldean Syrian Bank reported at AIR 1964 SC 1425 in which it is held in paragraph 11 as under: "(11). The authorities to which it is wholly unnecessary to refer. He further relied on judgment of the Supreme Court in Virdhachalam Pillai Vs. Chaldean Syrian Bank reported at AIR 1964 SC 1425 in which it is held in paragraph 11 as under: "(11). The authorities to which it is wholly unnecessary to refer. have firmly established the following and the position is not in doubt: (1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt. (2) The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts. is coextensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property. (3) Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no and tendency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. It need hardly be added that after the joint status of the family is disrupted by a partition, the father has no night to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post-partition debts of the father. (4) Antecedent debt in this context means a debt antecedent in fact as well as In time i.e. the debt must be truly independent and not pan of the mortgage which is Impeached. (4) Antecedent debt in this context means a debt antecedent in fact as well as In time i.e. the debt must be truly independent and not pan of the mortgage which is Impeached. In other words, the prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in feel so that they cannot be regarded as part of the same transaction. In Luhar Amrit Lal Nagji Vs. Doshi Jayantilal and ors reported In AIR 1960 SC 964 , relied upon by learned counsel for appellant, It is held that where ancestral property has been alienated either under a conveyance executed by the father in consideration of an antecedent debt, or in order to raise money to payoff an antecedent debt, or under a sale in execution of a decree for the father's debt, the sons who challenge the alienation have to prove not only that the antecedent debt. "I were Immoral but also that the purchasers had notice that they were so tainted. In this respect no valid distinction can be made between a mortgage and a purchase and the above principle will apply to a mortgage created by the farther. In S. M. Jakati & anr, Vs. S. M, Borkar and ors, reported at AIR 1959 SC 282 it is held that the liability of Hindu sons in Mitakshara coparcenery family to discharge the debts of the father, the karta, which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the life time and after the death of the father and which does not come to an end as a result of partition of the joint family property unless a provision has been made for the payment of the just debts of the father. Therefore, even though the father's power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition, the right of the judgment-creditor who has obtained a decree against the father to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. 11. Mr. 11. Mr. Sudame thus submits that since it is proved on record that alienation was for legal necessity and decree passed in Civil Suit No.37 of 1966 was binding on plaintiffs, learned lower Appellate Court should not have disturbed the findings rendered by the learned Trial Judge. 12. On the other hand, Mr. Panpalia, learned counsel for respondents no.1 and 2 contended that admission of Narayan is not binding on adversary party. Admission does not bind a third party and according to him, admission made by witness in other litigation is not admissible against other defendants. He submits that admission of defendant no. 1 is not binding on plaintiffs and no overwhelming importance could be attached to it. Mr. Panpalia further submits that agreement to sell is dated 21-08-1963 and there is no any mention of legal necessity in the said document. He submits that in the year 1963 age of plaintiff Vitthal was about 14-16 years and he was certainly not of a manageable age. He submits that in the said admission. there was no mention of execution of agreement for sale and it merely discloses that defendant no. 1 Narayan had obtained Rs.700/- from defendant no.3. 13. When alienation is challenged as having unjustified or illegal. it would be for alienee to prove that there was legal necessity in fact or that he made proper and bonafide inquiry and did all that was reasonable to satisfy himself as to existence of such necessity. If alienation is found unjustified then it would be declared void except to the extent of manager's share in the property. Under Hindu Law, the manager or karta of the family of the minor can alienate minor's undivided interest in the joint family property without permission of the court provided that alienation is for legal necessity or for benefit of the minor and this right is left untouched by the Hindu Minority and Guardianship Act, 1956. The manager of joint Hindu family has power to alienate for value the joint family property provided that alienation is for legal necessity or for benefit of the estate. 14. There is no dispute about settled legal principle that a manager or karta of joint Hindu family can dispose of Joint Hindu family's undivided property to meet antecedent debt or to meet any legal necessity or for the benefit of estate. 14. There is no dispute about settled legal principle that a manager or karta of joint Hindu family can dispose of Joint Hindu family's undivided property to meet antecedent debt or to meet any legal necessity or for the benefit of estate. Such transfer shall never be made for immoral or unlawful purposes. There is no dispute about this legal position. But when such transfer or transaction is under challenge by legal proceedings, then legal evidence must be established that the transfer or transaction entered into by karta was valid and legal. Alienee has to prove this by legal evidence. 15. In the instant case, lower Appellate Court has observed that claim made by defendant no.3 that financial condition of defendant no. 1 Narayan was bad, was not supported by any evidence and that he has not stated in his Written Statement that he had made any inquiries. Learned lower Appellate Court further observed that evidence of his witness Vithal was also vague and that evidence led by plaintiffs that their family income was around Rs.5000/- per annum, went virtually unchallenged. It has also taken note of the fact that there was no recital in the agreement for sale that the land was being sold for meeting expenses of marriage of his son by defendant no. 1 Narayan. 16. The crux of this case is that there was no occasion for the trial Judge to examine merits of the suit between karta and alienee. Without such legal evidence being led or examined in the suit between kana and alience, the suit had ended prematurely by a compromise upon their application. Then were no recitals in the application by" the parties to indicate that the agreement to sell in favour of alienee was for legal necessity nor agreement to sell mentioned it. No legal evidence on merits was led in the suit which was compromised. 17. Under these circumstances, the alienee had no occasion to establish by legal evidence that the agreement to sell was for legal necessity or for benefit of the estate or to meet any antecedent debt incurred by the karta. In the absence of proof of this vital fact the suit by sons of karta challenging the binding effect of the transaction in the nature of agreement to sell suit field ought to have succeeded in the trial Court. In the absence of proof of this vital fact the suit by sons of karta challenging the binding effect of the transaction in the nature of agreement to sell suit field ought to have succeeded in the trial Court. But the Trial Court appears to have overlooked this vital aspect and erred in this case for aforesaid reasons. On the other hand, the 1st Appellate Court addressed itself on the above questions properly in the facts and circumstances of the case to arrive at the appropriate and sound conclusions in the case. 18. Therefore, substantial questions of law as reproduced in paragraph 7 above do not really arise in the present appeal. Even upon assumption that they do so arise, it must be concluded in the facts and circumstances of the case that consent decree passed in Civil Suit No.37 of 1966 was not binding upon plaintiffs and plaintiffs were entitled to reopen the partition by suit in the absence of pleading of fraud and mistake. Be that as it may, for reasons stated above and settled legal position, no interference is required in the judgment passed by the 1st Appellate Court. Appeal is accordingly dismissed with no order as to costs. Appeal dismissed.