JUDGMENT : Rohit Arya, J. 1. The instant appeal is directed against the reversing judgment dated 23rd July, 2001 passed by 1st ASJ, Vidisha in Civil Appeal No. 39-A/2000; whereby, the order of the trial Court dated 31/7/2000 passed by Civil Judge, Class-I, Kurwai, District Vidisha in civil Suit No. 42-A/95 was partially set aside and modified. On 2/8/2002, this Court has admitted the appeal on the following substantial questions of law:- Whether burden of proof in respect of legal necessity lies on the purchaser, while saler is entered in collusion with plaintiff and deliberately kept him ex parte in the suit? 2. Appellants filed an application (I.A. No. 3776/2013) under Section 100 of CPC for framing of additional substantial question of law proposed therein which follow as under:- (a) Whether admittedly father of plaintiff namely Kamal Singh being alive who hold the property separately exclusively as an owner in accordance with section 8 of Hindu Succession Act the son namely plaintiff can claim the right and share in the property? (b) Whether after coming into force of the Hindu Succession Act the theory of birth right does not exists and son get share in the property only after death of his father? (c) Whether plaintiff has established the nature and status of the property as Mitakshara coparcenary when admitted fact is that after the death of Ranjol Singh the property was inherited by Kamal Singh son of Ranjol Singh, in such situation there was no lineal descendant because it is Kamal Singh after the death of father, therefore, there was no concept of Mitakshara coparcenary? (d) Whether a suit as filed by the plaintiff was maintainable, the Court below has not committed a jurisdictional error in not determination the maintainability of the suit in perspective? 3. On 27/08/2013, the aforesaid IA was taken up for consideration and same was rejected. Therefore, appeal is being considered on substantial question of law as has been framed by this Court on 02/08/2002 in view of the judgments of Hon. Supreme Court in Barkat Ali and another Vs. Badrinarain (dead) by LRs., (2008)4 SCC 615 and Satyadhyan Ghosal and Ors. Vs. Smt. Deorajin Debi and another, AIR 1960 SC 941 . 4. The facts relevant for decision of this appeal are that defendant No. 2-Kamal Singh is father of plaintiff. Badrinarain (dead) by LRs., (2008)4 SCC 615 and Satyadhyan Ghosal and Ors. Vs. Smt. Deorajin Debi and another, AIR 1960 SC 941 . 4. The facts relevant for decision of this appeal are that defendant No. 2-Kamal Singh is father of plaintiff. Defendant No. 2 to 6 alongwith plaintiff are members of the Joint Hindu Family, according to plaint allegations, grandfather of the plaintiff Ranjol Singh owned land survey Nos. 48, 49/2, 52, 53/2, 70/2, 83, 85, 89, 112, 113, 115, 119/2 in village Shahpur, which is an ancestral property and no partition has been done. The plaintiff lived with his father Kamal Singh. Plaintiff alongwith his father are co-parcener and as such joint owners and in possession of the suit land. According to plaintiff, the defendant No. 2 Kamal Singh, a man of loose character had sold 1/5th of the property i.e. 1.045 hectare to husband of defendant No. 1 for Rs. 30,000/- without the knowledge of the co-owner and without legal necessity and thereafter executed a sale deed and likewise land ad-measuring 0.449 hectare falling in survey No. 70/2 has also been transferred/sold without any legal necessity. Defendant No. 1 got her name mutated in the revenue record and thereafter vide sale deed dated 9/6/1997 sold the suit land to defendants No. 7 and 8. The suit land thereafter was mutated in the name of defendants No. 7 and 8. Plaintiff, therefore, filed a suit for declaration that the sale deed dated 26/5/1988 and 26/4/1991 executed by defendant No. 2 in favour of defendant No. 1 and sale deed dated 9/7/1997 executed by defendant No. 1 in favour of defendants No. 7 and 8 as null and void and for further declaration that plaintiff be declared joint owner of the suit land alongwith defendant No. 2. 5. Defendants No. 1, 7 and 8 filed the written statement. Defendant No. 1 denied the plaint allegations inter alia that defendants No. 2 to 6 are not members of the Joint Hindu Family. The defendant No. 2 had sold the suit land to defendant No. 1 and accordingly her name was mutated in the revenue record and thereafter, she was in possession of the suit land as its owner. It was denied that defendant No. 2 had taken the loan from defendant No. 1 and thereafter, the suit land was mortgaged. It was a bona fide sale. It was denied that defendant No. 2 had taken the loan from defendant No. 1 and thereafter, the suit land was mortgaged. It was a bona fide sale. The suit has been set up in collusion with defendant No. 2 and the plaintiff and therefore, plaintiff is not entitled for any relief as claimed. On the same lines, the subsequent purchasers, defendants No. 7 and 8 filed their written statement. 6. As many as 7 issues were framed by the trial Court. 7. The trial Court recorded the findings that (i) that the land described in para 2 of the plaint including the suit land is an ancestral property; (ii) the plea that plaintiff with his father defendant No. 2 held the suit land as co-parcener, has been rejected on the premise that defendant No. 2 has sold 1/5 share belonging to him out of total ancestral property to defendant No. 1 out of legal necessity; (iii) the plaintiff has no right to share of defendant No. 2, that apart the land sold to defendant No. 2 was separated and duly recorded in the revenue records from Tahsildar order dated 17/5/1995, as such defendant No. 1 entered the suit land as owner and remained in possession. The trial Court accordingly, dismissed the suit. 8. The first appellate Court has concurred that the suit property was a Joint Hindu Family property and thereafter partition had taken place. The suit land was mutated in the name of Ranjol Singh in the year 1989-90 and thereafter, partition amongst Ranjol Singh and his sons Puran Singh, Ram Singh, Govardhan Singh and Kamal Singh had taken place and accordingly, separated land were mutated in their respective names in equal share of 1.432 hectare of land. Thereafter, on the relevant date Kamal Singh remained in possession of only 0.387 hectare of land after sale of land 1.045 hectare to defendant No. 1 Sahodara Bai. However, the entire property referred above continued to be a co-parcener property to a Joint Hindu Family property, the plaintiff and defendant No. 2, both have equal share. The first appellate Court thereafter held that there was no partition. However, the entire property referred above continued to be a co-parcener property to a Joint Hindu Family property, the plaintiff and defendant No. 2, both have equal share. The first appellate Court thereafter held that there was no partition. First appellate Court further held that the defendant No. 2 had right to sale only half of his 1/5 share in the undivided share and remaining share of the plaintiff could not be sold without required permission from the District Judge as prescribed under the law. The trial Court's decree was accordingly modified to the effect that sale effected in favour of defendant no. 1 by defendant No. 2 was null and void quo the plaintiff to the extent it was in excess to half of 1/5 share of defendant No. 2 and the appeal was partially allowed. 9. Heard learned counsel for both the parties. 10. After having gone through the judgments of Courts below, it is apparent that the suit property was a part of Joint Hindu Family property and there was no partition of the suit property. Though, lands in respect of share of 4 sons and one daughter of Ranjol Singh were mutated to the extent of 1.432 hectare, as such the plaintiff being a member of Joint Hindu Family had also share in the co-parcener property alongwith his father defendant No. 2, as such the contention of the appellant that suit property was a separate property of defendant No. 2 cannot be accepted for want of pleadings and evidence on record. 11. In the plaint it was specifically stated in para 2, that suit property is a part of ancestral property and there is no partition effected. In the written statement, there is no denial of this fact. There is no evidence that the property was ever partitioned. Hence, the findings of both the Courts below are impregnable. 12. This Court has framed the issues as regards burden of proof in respect of legal necessity whether lies on the purchaser, if the seller had colluded with the plaintiff and deliberately kept him ex parte in the suit? 13. Now as culled out from the record, the defendant No. 2 has remained ex parte. He has chosen not to enter the witness box. 13. Now as culled out from the record, the defendant No. 2 has remained ex parte. He has chosen not to enter the witness box. As a matter of fact, he was in the best position to explain the circumstances under which the impugned sale transaction was entered with defendant No. 2 as Karta of the family. The evidence of defendant No. 1-Sahodara Bai (DW/1), the scribe of the sale deed, Abdul Kayyum (DW/2) as well as that of the PW/1, Ghyan Bai have been well discussed in the judgment of the trial Court. DW/1, Sahodara Bai has stated that the defendant No. 2 Kamal Singh told her that since he needed money for the marriage of his daughter, therefore, the sale deed (Ex. D/1) was executed by him in her favour. The Scribe, Abdul Kayyum (DW/2) has corroborated this fact by stating that defendant No. 1 while asking him to prepare the sale deed had told that he required money for meeting the expenses of his daughter's marriage. Such evidence on record has remained as it is and not shaken in the cross-examination. 14. PW/1, Ghyan Bai, in her deposition para 7 has stated that she alongwith his son and husband living together in a family. She further stated that she has no knowledge as to when and who has filed the suit and who had procured the documents. She has admitted that the entire legal works in Tahsil Office and Courts is done by her husband, Kamalsingh (Defendant No. 2). The conclusion drawn by the trial Court that the allegations that Kamal Singh for his bad habits (drinking and eating non-veg) had sold the suit land was a concocted story in connivance and collusion of the plaintiff-Deshraj Singh, his mother, Ghyan Bai (PW/1) and his father Kamal Singh (DW/2), appears to be plausible and does not suffer from any perversity. 15. That apart, the statement of PW/1-Ghyan Bai has also been corroborated by the statement of Pahalwan (PW/2) and Halku (PW/3) to the effect that Kamal Singh (DW/2) looks after his family and living with plaintiff and his wife in the family. 16. That apart, reply to the application filed under Order 41 Rule 5 CPC filed by the plaintiff/respondent, is supported by the affidavit of father Kamal Singh (Defendant No. 2). 16. That apart, reply to the application filed under Order 41 Rule 5 CPC filed by the plaintiff/respondent, is supported by the affidavit of father Kamal Singh (Defendant No. 2). It is pertinent to point out that suit is filed through the mother Ghyan Bai (PW/1) and the affidavit in support of reply to the aforesaid application is filed by father Kamal Singh (defendant No. 2); whereas, Kamal Singh remained ex parte in the proceedings of trial Court. Neither he filed written statement nor led evidence before the Court. In the reply filed before this Court he has stated that:- 1) That, the appeal has not been admitted till so far therefore, stay granted already deserves to be vacated. 2) That, from the grounds raised in memo of appeal, case has not worth for admission. 3) That, the appellants are having no right, interest to keep the land in possession and the appellants have deprived respondent No. 1 from receiving fruits arising out of the land in question. 4) That, in case, if any stay is granted, in that case, appellants should be directed to deposit substantial money at least Rs. 10000/- per annum. 17. This conduct of the defendant No. 2 Kamal Singh cements the conclusion that the plaintiff, his mother Ghyan Bai and his father Kamal Singh have connived and colluded to deceive the defendant No. 1 with oblique motive and collateral purposes to deprive her from the suit property, which otherwise was transferred to her by defendant No. 2-Kamal Singh himself after receipt of full consideration and on bona fide transactions. 18. Law as regards legal necessity is well explained by the Apex Court in catena of decisions. The issue of legal necessity is predominantly a question of fact and answer thereto depends upon facts and circumstances of each case. In the instant case, defendant No. 2, Kamal Singh who has admittedly executed the sale deed (Ex. D/1) in favour of defendant No. 1 had the best knowledge to state the circumstances which led him to execution of sale deed. In the instant case, defendant No. 2, Kamal Singh who has admittedly executed the sale deed (Ex. D/1) in favour of defendant No. 1 had the best knowledge to state the circumstances which led him to execution of sale deed. This evidence could be brought before the Court if Kamal Singh (Defendant No. 2) made to depose before the Court because the plaintiff had come to the Court to set aside the sale deed dated 26/5/1988 and 26/4/1991 executed by defendant No. 2 in favour of defendant No. 1 and sale deed dated 9/7/1997 executed by defendant No. 1 in favour of defendants No. 7 and 8 respectively as null and void. This evidence is mischievously withheld for the obvious reasons that the legal proceedings were initiated in active collusion and connivance of plaintiff-Deshraj Singh, his mother Ghyan Bai and his father Kamal Singh. Such withholding of evidence must lead to adverse inference to be drawn against the plaintiff and defendant No. 2 under Section 114(g) of the Evidence Act. 19. Under such circumstances, there is no reason to disbelieve the statement of Sahodra Bai (DW/1) and Abdul Kayyum (DW/2) which are very specific and stood same even in cross-examination to the effect that Kamal Singh had sold the suit land to meet the expenses of his daughter's marriage. Therefore, under such circumstances, the impugned sale in the facts and circumstances of the case is held to be out of legal necessity and bona fide transaction. 20. Hon. Supreme Court in the case of Smt. Rani and another Vs. Smt. Santa Bala Debnath and others, AIR 1971 SC 1028 had held in para 10 and 11 as under as regards legal necessity:- 10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited, owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistence must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. 11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in; evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The, weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession. 21. The same principles of law have been followed in subsequent judgment rendered in Gangadharan Vs. Janardhana Mallan and others, (1996)9 SCC 53 , in which Hon. Supreme Court in para 18 has held as under:- 18. In view of the findings which, we have already extracted regarding adequacy of sale consideration, substantial portion having gone into the discharge of antecedent debts and enquiries made by the purchaser regarding legal necessity coupled with the, fact that the alienation was challenged after 12 years from the date of alienation, we find no difficulty in coming to the conclusion that the High Court went wrong in upsetting the judgments of the Trial Court as well as the First Appellate Court. Even though the judgments of the Privy Council and of this Court were brought to the notice of High Court, it unfortunately, failed to give due consideration to the ratio laid down in those cases. The High Court simply observed as follows: It may not be possible to lay down any strait-jacketted rule as to what proportion of the consideration should be shown to have been antecedent debt in order to sustain an alienation by a Hindu father. 22. This Court is of the view that first appellate Court fully justified in holding that the suit property is a joint family property and trial Court was justified in holding that the impugned sale transaction was entered into for legal necessity to meet the expenses of his daughter's marriage. Resultantly, the appeal is allowed to the effect that sale deed dated 26/5/1988 and 26/4/1991 executed by defendant No. 2 in favour of defendant No. 1 out of legal necessity, is a legally executed sale deed and sale deed dated 9/7/1997 executed by defendant No. 1 in favour of defendants No. 7 and 8 is also legal and proper. The judgment and decree of the first appellate Court dated 23rd July, 2001 is hereby set aside and the judgment and decree of learned trial Court dated 31/7/2000 is hereby restored. No order as to costs. Appeal allowed.