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2010 DIGILAW 64 (CHH)

E. RAMENDRA RAO v. DINESH CHAND VERMA

2010-02-25

N.K.AGARWAL

body2010
ORDER 1. The appellant/plaintiff has preferred/his appeal under Section 96 of C.P.C. against the judgment and decree dated 29-8-1985 passed by IInd Additional Judge to the Court of District Judge, Bilaspur in Civil Suit No. 7-A/1978 whereby and where under appellant's suit has been dismissed. 2. Brief facts of the case relevant for disposal of the appeal are as under- i. Plaintiff's father E. Nageshwar Rao entered into agreement with respondent No. 1/defendant No.1 on 31-1-1971 whereby he had agreed to sell suit land which is a portion of Nazul Plot No. 42 Sheet No. 17 situate at Bilaspur town, to respondent No.1 for a consideration of Rs. 14,700/- and received an amount of Rs. 1100/- as earnest money. As plaintiff's father committed breach of the contract by not executing the sale deed in favour of the respondent No.1, a suit for specific performance was filed by respondent No.1. The above suit was decreed vide judgment and decree dated 7-8-1974 (Ex. D-2) in Civil Suit No. 5-A/73. The above decree was affirmed by this Court vide judgment dated 19-12-1975 (Ex. D-1) passed in F.A. No. 194/1974. ii. In execution of the above decree, a sale deed was executed through the Court in favour of respondent No. 1 on 1-7-1976 and the respondent No.1 was put on possession through the process of Court on 23-7-1977. iii. On 27- 3-197 6, plaintiff E. Ramendra Rao instituted a suit against the respondent No.1 praying for a declaration that the plaintiff is not bound by the decree passed in Civil Suit No. 5-A/73 and affirmed by this Court in F.A.No.194/74. as the suit property involved in Civil Suit No. 5-A/73 was part of ancestral property of the plaintiff wherein E. Nageshwar Rao only had limited share and, therefore, could not have entered into an agreement with respondent No.1 for its sale. The agreement entered into between the plaintiff's father E. Nageshwar Rao and respondent No.1 Dinesh Chand Verma was without legal necessity and, therefore, was not binding upon the plaintiff. The relief of permanent injunction was also claimed to restrain the respondent No.1 from obtaining sale deed in pursuance of decree Ex. D~2. The agreement entered into between the plaintiff's father E. Nageshwar Rao and respondent No.1 Dinesh Chand Verma was without legal necessity and, therefore, was not binding upon the plaintiff. The relief of permanent injunction was also claimed to restrain the respondent No.1 from obtaining sale deed in pursuance of decree Ex. D~2. Later on, when in execution proceedings, a sale deed was executed through the Court in favour of the respondent No.1 and he was also put in possession of the suit plot, relief was amended and instead of relief If permanent injunction, possession was claimed. E. Nageshwar Rao, father of the plaintiff was also subsequently added as respondent No.2 in the suit and after his death, daughters of late E. Nageshwar Rao were substituted as respondents No.2 (a) and 2'(b) in his place as his legal representatives. iv According to the plaintiff, the aforesaid agreement of sale by E. Nageshwar Rao was neither for legal necessity nor for benefit of family. None of the parties brought to the notice of the Court that the suit plot is ancestral property and in view of the above, it was supposed that the suit plot belongs exclusively to late E. Nageshwar Rao, father of the plaintiff and on such supposition, the decree Ex. D-2 was passed in Civil Suit No. 5-A/73 and was affirmed by this Court vide Ex. D-1. v. The said deed executed in favour of the defendant is also without legal necessity and it is hit by doctrine lispendence. The defendant No.2 (E. Nageshwar Rao) was not competent to sell specific portion of the property. The possession of the defendant No.1 is thus wrongful and unauthorized and the plaintiffs are entitled for its possession. As per plaintiffs' case, cause of action arose on 1912-1975 when the decree for specific performance of the contract was affirmed by the High Court and its possession was handed over to the respondent No.1. vi. The respondent No.1 by filing his written statement averred that the suit property was ancestral property of late E. Nageshwar Rao. He entered into agreement to sell with the respondent in the capacity of Kart a (manager) of joint Hindu family consisting of E. Nageshwar Rao, plaintiff and his sister. The plaintiff's father entered into agreement to sell with the respondent for legal necessity. He entered into agreement to sell with the respondent in the capacity of Kart a (manager) of joint Hindu family consisting of E. Nageshwar Rao, plaintiff and his sister. The plaintiff's father entered into agreement to sell with the respondent for legal necessity. From the enquiries made, the respondent came to know in 1971 before entering into the agreement to sell with regard to the suit plot that E. Nageshwar Rao has got no cash in partition and had then no ready cash and his only source of income was house rent and that income was not sufficient for meeting the expenses of himself and the members of his family and that he needed money for these expenses also for educational expenses of his children and for meeting the charges of his medical treatment. E. Nageshwar Rao was not keeping good health and was undergoing treatment. E. Nageshwar Rao had no means of obtaining money which he needed except by selling the suit property. The suit for specific performance of the contract filed by the respondent No.1 was hotly contested by E. Nageshwar Rao in which plaintiff assisted him. The decree passed in that suit is binding upon the plaintiff. It was further averred that the plaintiff did not question the representative capacity of E. Nageshwar Rao during the pendency of the suit for specific performance of contract. The plea of want of legal necessity was not taken in that suit. E. Nageshwar Rao and the members of the family including plaintiff derived the benefit from the earnest money of Rs. 1100/- paid by the respondent at the time of said transaction. The right of the plaintiff to question the transaction of the contract of sale or the decree for specific performance of the contract on the ground that the suit property belongs to joint family or that the plaintiff has interest in it or that there was no legal necessity for the contract to sell has become barred on principles of estoppel, res-judicata and constructive res-judicata. The suit property is only a fraction which is much less than the share of E. Nageshwar Rao in the joint family property and the right of the plaintiff and his father is liable to be adjusted at the time of partition if and when it is made. vii. The suit property is only a fraction which is much less than the share of E. Nageshwar Rao in the joint family property and the right of the plaintiff and his father is liable to be adjusted at the time of partition if and when it is made. vii. The deceased respondent No.2 i.e. father of the plaintiff also filed his written statement in which he supported the case of the plaintiff. viii. The trial Court framed issues. Plaintiff examined himself. The respondent No. 1 examined himself. The trial Court on a close scrutiny of the evidence led, material placed and submissions made, held that in the year 1969, in family partition, E. Nageshwar Rao was allotted 1I3rd share of plot No. 42 of Sheet No. 17 admeasuring 1813 5 Sq.Ft and was put in its exclusive possession; the suit property is less than half area of the plot which was allotted to E. Nageshwar Rao in family partition. E. Nageshwar Rao was manager of joint family consisting of himself and his son and daughter. He had got no cash in family partition and had no ready cash and only source of income is house rent which was not sufficient for meeting the expenses of himself and members of his family. E. Nageshwar Rao entered into agreement to sell with respondent No. 1 in the capacity of Kart a of joint family property; held the decree Ex. D-2 is binding on plaintiff. It was further held that the plaintiff is debarred from raising the plea of want of legal necessity on the principle of estoppel, res-judicata and constructive resjudicata and dismissed the suit vide judgment and decree dated 29th August, 1985 in Civil Suit No.7 -A/78. The said decree was affirmed in F.A. No. 119/85 vide judgment dated 18-7-1988. There against, Letters Paten Appeal No. 53/88 was preferred by the plaintiff which was allowed by the Division Bench of this Court and the case was remanded back for re-consideration. In the opinion of the Division Bench, the Single Judge, has not considered the full bench judgment of High Court in Ram Dayal Vs. Manaklal-1 and the facts of the case in its proper perspective, however it refrained itself from commenting on the merit of the case. 1. 1973 MPLJ 650 ix. In the opinion of the Division Bench, the Single Judge, has not considered the full bench judgment of High Court in Ram Dayal Vs. Manaklal-1 and the facts of the case in its proper perspective, however it refrained itself from commenting on the merit of the case. 1. 1973 MPLJ 650 ix. During pendency of this appeal, respondent No.2 Dinesh Chand Verma died and his legal representatives were substituted in his place as respondent No. 1 (a) to 1(c). The suit property was sold by the legal representative of the deceased respondent Dinesh Chand Verma to one Anil Kumar Dixit who has been impleaded as a proper party as respondent No.3 in the instant appeal. x. The respondent No.1 (a) to 1 (c) have filed one application under Order 41 Rule 27 of the C.P.C. for taking sale deed executed by plaintiffs in favour of one Dr. Vishal Kumar Jain on record by which the plaintiff has sold the entire remaining portion of land Plot No. 42 Sheet No. 17 vide registered sale deed dated 9-92005. 3. Shri Sanjay K. Agrawal, learned Counsel for the appellant would submit that admittedly the suit property was a joint family property in which the appellant/plaintiff has undivided interest. It is well settled that an undivided share of co-sharer may be subject matter of sale but the possession cannot be handed over to such vendee unless the suit property is partitioned by meets and bounds amicably or through a decree of court. 4. He would further contend that burden to prove that the alienation of joint Hindu family property by Karta of the family was for legal necessity is upon the alienee. 5. He would further contend that it has not been proved by the respondents by leading cogent and clinching evidence that father of the plaintiff was short of funds for meeting the expenses of himself and members of family and thus the finding recorded by the trial Court in this regard is contrary to the evidence available on record and the plaintiff's suit deserves to be decreed. 6. On the other hand, Shri Sanjay S. Agrawal, learned counsel appearing for the respondent would submit that the plaintiff's father entered into agreement of sale with the deceased respondent No.1 as Karta of joint Hindu family for legal necessity and the decree passed in a suit for specific performance is binding upon the plaintiff. 6. On the other hand, Shri Sanjay S. Agrawal, learned counsel appearing for the respondent would submit that the plaintiff's father entered into agreement of sale with the deceased respondent No.1 as Karta of joint Hindu family for legal necessity and the decree passed in a suit for specific performance is binding upon the plaintiff. He would further contend that the plaintiff's conduct throughout in not raising any objection about capacity of his father E. Nageshwar Rao to transfer the suit property and the conduct of E. Nageshwar Rao in not raising plea of want of legal necessity in the suit for specific performance of contract will operate as estoppel and, therefore, the plaintiff now cannot be allowed to raise objection that the agreement to sell entered into between his father and respondent No.1 for sale of suit property was without any legal necessity. 7. He would further contend that by way of application under Order 41 Rule 27, C.P.C. the respondent has filed the copy of sale deed by which, the plaintiff has sold entire remaining portion of plot bearing Plot No. 42 Sheet No. 17. This sale deed has a bearing on the case and the document deserves to be taken on record as additional evidence. 8. I have heard learned counsel for the parties, perused the record of the case. 9. The respondent has filed an application under Order 41 Rule 27 of C.P.C. along with a copy of registered sale deed dated 9-9-2005 by which the plaintiff E. Ramendra Rao has alienated rest of the land i.e. admeasuring 123 Sq. ft of Sheet No. 17 Plot No. 42/2 to one Dr. Vishal Kumar Jain, in order to bring the subsequent events which have taken place during pendency of the suit in the notice of this Court. The application was not seriously disputed by the appellant. A perusal of the document prima facie goes to show that it has a bearing on the facts of the case and therefore, necessary for just decision of this appeal. In view of above, in the considered opinion of this Court, the application deserves to be and is hereby allowed and the document annexed therewith is taken on record as an additional evidence. 10. Indisputably there was a family partition between the heirs of E. Ramendra Rao in the year 1969. In view of above, in the considered opinion of this Court, the application deserves to be and is hereby allowed and the document annexed therewith is taken on record as an additional evidence. 10. Indisputably there was a family partition between the heirs of E. Ramendra Rao in the year 1969. Plot No. 42 Sheet no.17 admeasuring 18,135 Sq.Ft and three houses constructed thereupon were partitioned and late E. Nageshwar Rao was allotted 1I3rd share of it and was put in exclusive possession thereof. The suit property is almost 1I4th area of the plot No. 42 Sheet No. 17 allotted to E. Nageshwar Rao in partition. E. Nageshwar Rao became manager of joint family consisting of himself, his son and daughter. The suit property is ancestral property of the plaintiff in which he has undivided interest. 11. Following questions arise for decision making of this Court in the ease:- i. Whether E. Nageshwar Rao in the capacity of Karta of joint Hindu family had entered into agreement to sell of the suit property to the defendant No. 1 for legal necessity and thus the sale by the father as manager of the family is also binding upon the plaintiff or whether late E. Nageshwar Rao vide agreement dated 31-1-1971 had alienated his undivided interest in a specific property forming part of joint family property and, therefore, the sale deed executed in pursuance of the said agreement to sell is not binding upon the plaintiff? ii. Whether the plaintiff is entitled to sue for and recover possession of whole of the family property for the benefit of joint family including vendor i.e. father of the plaintiff? iii. Whether defendant's rights is only to file a separate suit for partition against the member of the family claiming allotment to him of that specific item or share in the said property ? iv. Whether the plaintiff is debarred from raising the plea that sale was without legal necessity on the principles of estoppel, res judicata and constructive res judicata ? 12. In case of Ram Dayal Vs. iv. Whether the plaintiff is debarred from raising the plea that sale was without legal necessity on the principles of estoppel, res judicata and constructive res judicata ? 12. In case of Ram Dayal Vs. Manak lal-1 the Full Bench of High Court of Madhya Pradesh has held that a coparcener may sell, mortgage or otherwise alienate for value his undivided interest in the coparcenery property without consent of other coparceners but he has no right to alienate, as his interest, any specific property belonging to the coparcener, for no coparcener can before partition claim any such property as his own; and if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. If the purchaser of the undivided interest of a coparcener has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including vendor. The purchaser is not entitled in such suit to an order for partition, either of the specific property sold to him or of the joint family properties in general; he must, if he wants to realize his vendor's interest, bring a suit of his own for a general partition. Where a suit therefore, is brought by the non-alienating coparcenars for possession, the proper decree to be passed would be an order directing the purchaser to deliver possession to the plaintiffs of the whole property, and declaring that the purchaser is entitled to a declaration that he has acquired the undivided interest of his vendor in the property and that he is entitled to take proceedings to have that interest ascertained by partition. However, to protect the purchaser, a further direction be added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for specified period and if, before expiry of that period, the purchaser brings a suit for a general partition against the plaintiffs, then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled. 13. The Supreme Court in the case of Pavitri Devi and another Vs. 13. The Supreme Court in the case of Pavitri Devi and another Vs. Darbari Singh and others-2 in para 7 of the judgment has held that the Karta or the Manager of the Hindu Joint Family has a right to alienate undivided interest in the Hindu joint family property for valid consideration for family necessity. Karta or coparcener has right to alienate his undivided share in coparcenary property and the purchaser acquires only the equitable right to allotment of his predecessor's share at a partition. The purchaser is entitled to the allotment of the specific property sold and to be put in possession, so far as possible, subject to equities. 2. 1993(4)SCC392 14. The Supreme Court in K. Adivi Naidu and others Vs. E. Duruvasulu Naidu and others-3 has held in para 5 of the judgment that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind other coparceners. 3. 1995(6) SCC 150 15. The Supreme Court in Ram Das Vs. Sila Eai and others-4 while dealing with Section 55 of the Transfer of Property Act. 1882 observed in para 15 and 16 as under: 4. JT2009(8) SCC 224 "15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470] wherein this Court stated as follows: "Now it is well settled that the purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the coparcener whose share he had purchased. " 16. It may be mentioned herein that the atoresaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors.-5, wherein this Court held as under: 5. " 16. It may be mentioned herein that the atoresaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors.-5, wherein this Court held as under: 5. AIR 1953 SC 487 "All that (vendee) purchased at the execution sale, was the undivided interest of coparcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour. (Emphasis added)." 17. The Supreme Court in case of Gajara Vishnu Gasavi Vs. Prakash Nanasahab Kamble and other-6 has held in para 11 as under: 6. JT 2009(13) SC 432 "11. Thus, in view of the above law emerges to the effect that in a given case an undivided share of a coparcener can be a subject matter of sale/ transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers." 18. The Supreme Court in case of Pandurang Mahadeo Kawde (dead) Vs. Annajee Balwant Bokil and others-7 has held that an alienee from a karta of the joint family will have to establish that the transaction in his favour is for legal necessity and as such binding on the minor members of the family. 7. AIR 1971 SC 2223 19. The Supreme Court in case of Subodhkumar and ors. Vs. Bhagwant Namdeorao Mehetre and ors-8 (supra), has observed in para 11 as under: 8. AIR2007SC 1324 "11. We do not find any merit in the above civil appeal. Even assuming for the sake of argument that the conveyance dated 31-3-1975 executed by Nimbaji and his four sons was not for legal necessity even then the defendants' position cannot improve. Nimbaji was the karta of the Hindu undivided family. Land admeasuring 9 acres and 16 gunthas was an ancestral property of Nimbaji. Nimbaji had five sons. Nimbaji and his four sons agreed to sell their ancestral lands to the plaintiffs. Agreement was reduced to writing. Agreement was registered. Nimbaji was the karta of the Hindu undivided family. Land admeasuring 9 acres and 16 gunthas was an ancestral property of Nimbaji. Nimbaji had five sons. Nimbaji and his four sons agreed to sell their ancestral lands to the plaintiffs. Agreement was reduced to writing. Agreement was registered. Agreement was followed by a conveyance. Conveyance was followed by possession given to the plaintiffs who claim to be forcibly dispossessed. Defendants 1 to 5 failed to institute proceedings for general partition. The primary step of Defendants 1 to 5 was to sue for partition. They failed to take any steps in this regard. No consequential relief was claimed by them for partition and for demarcation of their share. The plaintiffs had instituted the suit for possession on the ground that they were forcibly dispossessed by Defendants 1 to 5. Since the karta of a Hindu undivided family with his four sons had executed the conveyance in favour of the plaintiffs, the suit filed by the plaintiffs for possession cannot be dismissed on the ground of lack of legal necessity. A karta has power to alienate for value the joint family property either for necessity or for benefit of the estate. He can alienate with the consent of all the coparceners of the family. When he alienates for legal necessity he alienates an interest which is larger than his undivided interest. When the karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener which in the present case was Panditrao. In the present case, Panditrao did not sue for partition. He did not ask for demarcation of his share. Defendants 1 to 5 who claim through Panditrao seek possession of a specific portion of the land to be demarcated without filing a suit for partition by metes and bounds. The conveyance by Nimbaji and his four sons is not disputed by the said coparceners. The conveyance executed by Nimbaji and others is true which is different from saying that it is an imprudent transaction. Once it is found that the conveyance executed by Nimbaji and others is true lU1der which the plaintiffs were put in possession and later on disposed (sic dispossessed), in the suit for possession, in such an event, the issue of legal necessity becomes irrelevant. Once it is found that the conveyance executed by Nimbaji and others is true lU1der which the plaintiffs were put in possession and later on disposed (sic dispossessed), in the suit for possession, in such an event, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to Defendants 1 to 5 to get the demarcated portion of 2 acres and 2 gunthas of land on the southern side without the said defendants taking appropriate proceedings in accordance with law." 20. In view of the dicta of Supreme Court and High Court of Madhya Pradesh in the above referred cases, the position of law may be summarized as under : (i) The manager of joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property provided that alienation is made for legal necessity. (Para 243 of Mull a Hindu Law, 19th Edition) (ii) Where any such transaction has been entered into for legal necessity by a manager, it would be deemed to be on behalf of family and would bind it. The power of manager for an infant heir to charge an estate not his own is under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. Where the manager of a joint Hindu family sells joint family property, the purchaser is bound to enquire into necessity for the sale or mortgage and the burden lies on the purchaser to prove either that there was the legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity. (iii) The suit by or against the manager will be deemed to be one brought by him or against him as representing the family, if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not necessary, where the manager is defendant, that he is being sued as manager. It is not necessary, where the manager is defendant, that he is being sued as manager. (iv) The father in the case of minor sons, necessarily is the manager of the joint fan1ily. (Para 254 of Mulla Hindu Law, 19th Edition). (v) According to Mitakshara law as applied in Bombay, Madras, Madhya Pradesh and some other states, a coparcener may alienate his undivided interest in the entire joint family property or his undivided interest in a specific property forming part of the joint family properties. However, he has no right to alienate, as his interest, any specific property belonging to the coparcenary, for no can, before partition, claim any such property as his own; if he does alienate, the alienation is valid to the extent only of his own interest in the alienated property. (Para 259 of Mull a Hindu Law, 19th Edition) (vi) If the purchaser of the undivided interest of a coparcener has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including vendor. The purchaser is not entitled in such suit to an order for partition, either of the specific property sold to him or of the joint family properties in general; he must, if he wants to realize his vendor's interest, bring a suit of his own for a general partition. Where a suit therefore, is brought by the non-alienating coparceners for possession, the proper decree to be passed would be an order directing the purchaser to deliver possession to the plaintiffs of the whole property, and declaring that the purchaser is entitled to a declaration that he has acquired the undivided interest of his vendor in the property and that he is entitled to take proceedings to have that interest ascertained by partition. However, to protect the purchaser, a further direction be added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for specified period and if, before expiry of that period, the purchaser brings a suit for a general partition against the plaintiffs, then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled. (vii) The manager of joint Hindu fan1ily has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property provided that alienation is made for legal necessity. (Para 243 of Mulla Hindu Law, 19th Edition). 21. So far as the question raised by Shri Sanjay S. Agrawal and also the finding recorded by learned Court below that the plaintiff is bound by the decrees Ex. D-l and D-2 as passed in earlier instituted suit for specific performance of contract by virtue of principles of constructive res judicata as provided in explanation (iv) of Section 11 of C.P.C. is concerned, I do not find any substance in it. There is no doubt that the property belonging to a joint family is ordinarily managed by father or other senior member for the time being of the family. The manager of a joint family is called “karta' . As per para 252 of Mull a Hindu Law, 19th Edition, as relied by Shri Sanjay S. Agrawal, a decree obtained against father as manager of joint family is binding upon his sons if in the case of minor sons he was acting in the former litigation on their behalf in their interest. Such a decree operates as res judicata by virtue of provisions of explanation (vi) of Section 11 of C.P.C. 22. Privy Council in the case of Lingangowda Dod - Basangowda Paril and others Vs. Basangowda Bistangowda Patil and other-9 has held that in the case of a Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he comes to age and then bring an action or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to explanation (vi) of Section 11 of the C.P.C. to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors with the assent of the majors. 9. AIR 1927 Privy Council 56 23. In case of Amrit Sagar Gupta and others Vs. Sudesh Behari Lal and others-10 (supra), the facts were that one Krishen Gopal had lease-hold rights in the suit properties. 9. AIR 1927 Privy Council 56 23. In case of Amrit Sagar Gupta and others Vs. Sudesh Behari Lal and others-10 (supra), the facts were that one Krishen Gopal had lease-hold rights in the suit properties. After his death, dispute arose between Jwala Prasad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties. Each one of them claimed that those properties had been gifted to him by Krishen Gopal. On January 20, 1943, Civil Suit No. 15/43 against Banwari Lal Verma claiming possession of the suit properties on the' strength of alleged gift in his favour has been filed by Jwala Prasad. Principal issue arose in that case for determination was whether the suit properties had been gifted to Jawala Prasad or Banwari Lal Verma. The trial Court dismissed the suit but in appeal, the decree of the trial Court was reversed and the suit was decreed as prayed for. That decision was confirmed by the High Court and thereafter by the Supreme Court. After the decision of the Supreme Court, the suit has been tiled by one of the sons of Banwari Lal claiming partition of the suit property on the allegation that the same has been gifted by Krisen Gopal to his joint family. In this factual position, the Supreme Court has observed that the issue whether the suit property was gifted by Krisen Gopal to Banwarilal or Jawala Prasad has been decided after a long drawn trial in which leading members of the family litigated as manager of the family and therefore, such finding operates as res judicata and sons of Banwari Lal cannot be allowed to litigate on the same issue as the same is barred by principle of res judicata. 10. AIR 1970 SC 5 24. Here position is entirely different. Here in the instant case, the plaintiff's suit is on the premise that father has alienated the undivided interest in the coparcenary property without there being any legal necessity and it is settled law that a non-alienating coparcener has a right to challenge alienation of an undivided interest in the coparcenary property by the other coparcener. Therefore, the real first issue falls for determination in this case is whether or not late E. Nageshwar Rao entered into agreement to sell of the suit property for legal necessity. 25. Therefore, the real first issue falls for determination in this case is whether or not late E. Nageshwar Rao entered into agreement to sell of the suit property for legal necessity. 25. The plaintiff appellant examined him self. In his statement, he has stated his father's financial status was good; used to pay wealth tax, there was no necessity to sell the suit land to defendant. On the day of partition with his brother, his father received Rs. 10,000/- cash for which written partition deed is with the Income Tax department which he can produce if demanded. Thereafter it has been stated that he is not aware about the cash received by his father at the time of partition, that he can only say after perusal of income tax papers; his father used to keep accounts which were kept in the house; he can produce the documents of source of income of his father from house rent and agriculture as accounts are kept in the house. After 1969, his father had sold some agricultural lands but he cannot say when and at what price that he has constructed Cinema hall and for that he was in need of money. For that he sold lands. He does not remember if he has sold the lands before 1976. He can say this by seeing the records. Whatever lands he and his father sold was necessary for construction of his Cinema hall. It was admitted in his statement that whatever income from agriculture and house rent was received to him and whatever expenses incurred by them is written in the accounts. He further stated that his father used to receive Rs. 25,000/- yearly as income and used to spend Rs. 10,000/- per year, in the year 1970-71, 1971-72, and 197273. They used to keep the balance amount in the house and used to file Income Tax Return. There is no mention of that amount in the Wealth Tax Return as the same has been shown in the Income Tax Return. It was further admitted that in 1971-72, he and his father used to live jointly and he used to see the accounts written by his father. There is no mention of that amount in the Wealth Tax Return as the same has been shown in the Income Tax Return. It was further admitted that in 1971-72, he and his father used to live jointly and he used to see the accounts written by his father. On the other hand, D. W. 1 Dinesh Chandra Verma has stated in his statement that E. Nageshwar Rao has told him that he was in need of money to meet the family expenses and also for medicines; his economic status was not good. It is not correct that deceased E. Nageshwar Rao used to earn Rs. 25,000/- and used to spend Rs. 10,000/- per year and there is a saving of Rs. 15,000/- per year. It has been further stated that E. Nageshwar Rao himself told him that he is in felt need of cash amount and for that, he wants to sell the land. His only source of income was from house rent. 26. It is true that burden to prove legal necessity is upon the alienee. It is also trite law that when both the parties had led evidence, burden of proof looses its importance. In the instarit case, the appellant has shown that cause of action arose on the date when the decree for specific performance of contract was confirmed by the High Court and its possession was handed over to the respondent no. 1. It means the fact of prior litigation between his father and the defendant was known to the appellant. As per his statement, he and his father used to maintain accounts of income and expenditure and the same is kept in the house and he can produce the same if time is given to him, but surprisingly, although his evidence has been recorded on 18-1-1985 and thereafter on 11-2-1985, the same has not been filed by him. He has also not filed Income Tax Returns though were in his possession. After 1969, he and his father used to sell the lands. They have also sold some lands as they were in need of money for construction of Cinema hall. Nothing has been shown regarding agricultural income. He has also not filed Income Tax Returns though were in his possession. After 1969, he and his father used to sell the lands. They have also sold some lands as they were in need of money for construction of Cinema hall. Nothing has been shown regarding agricultural income. It is of common knowledge that a person of high status has to spend more money for day to day expenses in order to maintain his and his family's status, also has to spend more money on education. He was ill at that time is an undisputed fact. In such circumstances, adverse inference under Section 114(g) can be safely drawn against the appellant plaintiff in not filing the Income Tax Returns and statement of accounts, although available and were in his possession. In such circumstances, in all probabilities, the statement of defendant that the income of his father was 2 to 3 thousand from house rent stands to the reason. It appears that the expenditure of his father was more than the income received. It is also highly improbable that the fact of litigation between his father and defendant was not known to the plaintiff, although he used to see the accounts kept by his father. A bare perusal of the sale deed dated 9-9-2005 executed by the appellant in favour of Dr. Vishal Kumar Jain would reveal that he himself has shown the suit land in the ownership of defendant in the map annexed with the said sale deed. If the entire circumstances are taken into consideration, it only indicates that the alleged agreement of sale was entered into by the plaintiff's father E. Nageshwar Rao for legal necessity. Therefore, alienation by the deceased E. Nageshwar Rao is binding upon the plaintiff. 27. In view of the above, in the considered opinion of this Court, the appellant is not entitled for the relief as prayed for. 28. The appeal being devoid of substance, is liable to be and is hereby dismissed. Appeal Dismissed.