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2013 DIGILAW 1483 (PNJ)

Tara Chand v. Vidya Dhar

2013-11-12

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral) - All the 4 appeals concern the same issue relating to the challenge made by the plaintiff to the sales effected by his father on a plea that admittedly the suit properties were ancestral joint family properties and the sales had been effected without any necessity and that, therefore, he will not be bound by the sales in respect of his shares. RSA Nos.1233 of 1985 and 893 of 1992 are at the instance of purchasers whose sales have been found to be not established for necessity. RSA Nos.1221 of 1992 and 2037 of 1989 are at the instance of the plaintiff challenging the findings of the courts below upholding the sales in favour of the respective vendees. All these four appeals arise out of four suits instituted by the same person Vidya Dhar challenging various sales executed by the defendant as not valid. The sales which were upheld as valid were as follows:- i) Sale deed dated 09.10.1980 of 16 Kanals for Rs.8,000 (RSA No.1221 of 1992) ii) Sale deed No.552 for Rs.10,000/- of an extent of 48 kanals (RSA No.2037 of 1989) Both the sale deeds were held to be for legal necessity. The sale deeds which were held to be not valid are as follows:- i) Sale deed No.906, dated 09.10.1980-87 K 17 M for Rs.20,000 (RSA No.893 of 1982) ii) Sale Deed No.553 in respect of 56 Kanals for Rs.22,000/- (RSA No.1233 of 1985). 2. The court below upheld one set of transaction of sale as affected by necessity and set aside the sales with reference to another transaction. The appeals have been filed therefore both at the instance of the plaintiff and the defendants. The common issue that falls for consideration is whether the defendants had proved the necessity for the sales and whether the challenge by the plaintiffs could be upheld or not. The sale deeds are of even date, namely, on 09.10.1980 in respect of 48 kanals of land, 87 kanals 17 marlas, 56 kanals and 16 kanals of land respectively for Rs.10,000/-, Rs.20,000/- , Rs.22,000/- and Rs.8,000/-. The sales were purported to have been for the purpose of legal necessities in the 1st and 3rd document and for purchase of cattle, construction of house and for legal necessities. The more significant aspect is that all the sales were for cash consideration. The sales were purported to have been for the purpose of legal necessities in the 1st and 3rd document and for purchase of cattle, construction of house and for legal necessities. The more significant aspect is that all the sales were for cash consideration. An attempt had been made in the course of trial to bring witnesses to speak to the effect that the father-vendor was suffering from ailment and that he had to incur expenses for his medical treatment and, therefore, the sales were effected. Some of the witnesses also spoke about the fact that the father had to discharge some debts and he used the consideration for the purchase of cattle and for household expenses. The court accepted this contention partially and while upholding the sales, it rejected one sale as not establishing the necessity as pleaded by the purchasers. 3. Under Hindu law, the father (karta) of Hindu joint family has no unlimited right of sale of joint family property. The sales of immovable property could be sustained to bind a coparcener only if it is supported by the legal necessity or for family benefit. The proof of legal necessity is always on the purchaser whose evidence must be cogent and consistent with the recitals in the sale deed about the necessity. In this case, the transactions which are for cash are purported to be for the purchase of cattle and household expenses. The term “household expenses” itself is a wide one and if there was really a medical treatment which was necessary and he had to incur huge expenses over Rs.30,000/-, there should be clear and cogent evidence about the nature of illness that he had and the details of treatment expenses also should have made available. There is a preponderance of authority to the effect that if the purchaser makes reasonable enquiries and he is conversant about the expenses for necessities, then the manner of application of that money for such necessity need not be proved and that it could be inferred. The predominant consideration in such a case is an enquiry and proof of all the existing necessities. If the necessity is established, the flow of funds for such an application of necessity could be a matter left for court’s inference. The predominant consideration in such a case is an enquiry and proof of all the existing necessities. If the necessity is established, the flow of funds for such an application of necessity could be a matter left for court’s inference. In this case, the evidence has been inconsistent of bringing about a detail of necessity which is not referred to in the sale deeds. If the sales had been effected only for discharge of debts contracted, there must have been actual proof of such debts. If the sales had been contracted for expenses already incurred, then the proof of such treatment and incurring of expenses must have been brought out. If the sale considerations were to be applied for future medical expenses which were imminent, then the proof shall be of actual ailment and the necessity for having to incur expenditures. In all these instances, the burden was only on the purchasers. 4. It has been held in Mulla Hindu Law, 21st edition 2010 in paragraph 242 at page 383 as follows:- “The existence of a necessary purpose is not the same as a legal necessity, for, there may be large resources, a large income making a loan unnecessary. The lender must show necessity for the loan. ....” In para 242 of Mulla’s Hindu Law (supra), it further stated that, “where the manager of a joint Hindu family sells or mortgages joint family property, the purchaser or mortgagee is bound to inquire into the necessity for the sale or mortgage, and the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity in fact, or that he made proper and bona fide enquiry as to the existence of such necessity. (Kesar Singh Versus Santokh Singh-(1936) 17 Lah 824.)” Even a recital of necessity would be relevant but there needs to be proof of such necessity independently of their recital. The recital could at best be only a corroboration. The Mulla states that, “recitals of legal necessity in mortgages or deeds of sale executed by the father or manager are admissible in evidence, but are not of themselves evidence of such a necessity without substantiation by evidence aliunde.(Rani Versus Santa Bala Debnath- AIR 1971 SC 1028 ).” 5. The recital could at best be only a corroboration. The Mulla states that, “recitals of legal necessity in mortgages or deeds of sale executed by the father or manager are admissible in evidence, but are not of themselves evidence of such a necessity without substantiation by evidence aliunde.(Rani Versus Santa Bala Debnath- AIR 1971 SC 1028 ).” 5. The burden which was on the purchaser has clearly not been established and with a skeletal evidence of the parties referring to the cash as having been applied for the medical expenses, the court could not have upheld the sales. 6. I reverse the finding of the court below and hold that all the sales were not proved to have been made for any family necessity to be binding on the plaintiffs. There shall be a decree as prayed for and the appeals in RSA Nos.2037 of 1989 and 1221 of 1992 are allowed and the appeals in RSA Nos.1233 of 1985 and 893 of 1992 are dismissed with costs. Counsel’s fee Rs.5,000/- in four sets. ---------0.B.S.0------------