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Madhya Pradesh High Court · body

2013 DIGILAW 888 (MP)

Kewal Singh. v. Seth Radhavallabh .

2013-08-01

N.K.GUPTA

body2013
JUDGMENT : The learned Civil Judge, Class-I, Berasiya vide judgment and decree dated 30.4.1994, in civil suit No.61-A/ 1989 partly decreed the suit filed by the appellants/plaintiffs that the right of the plaintiffs was declared in the suit property and an injunction was granted to auction the house, situated on the property. In Civil Appeal No.3- A/1997, the learned 5th Additional District Judge, Bhopal vide judgment and decree dated 19.12.1997 dismissed the suit filed by the plaintiffs. Being aggrieved with the judgments passed by both the Courts below, the applicants have preferred the present revision. 2. The plaintiffs had filed a civil suit before the trial Court that the respondent No.2 Madho Singh is father of the plaintiffs No.1, 2 and 3 and husband of the plaintiff No.4. He mortgaged the suit property, situated on survey No.47, area 1.66 acre, situated at village Barkhedi, Tahsil Berasiya with the respondent No.1 Radhavallabh that it was an ancestral property. The respondent No.2 was in habit to drink excessively and his mental condition was not fit. He was in habit to take loans to consume liquor and not to return thereafter the loan amount. The property was mortgaged with the respondent No.1 by a mortgage deed dated 29.5.1971 because the respondent No.1 took a loan of Rs.3,000/-. Since the property was ancestral and it was earned by Aman Singh, father of the respondent No.2, therefore, the respondent No.2 could not mortgage that property to anyone. A civil suit No.7-A/1975 was filed by the respondent No.1 against the respondent No.2. On 6.3.1975, a collusive compromise took place between the respondents No.1 and 2 and the suit was decreed. Thereafter, the respondent No.1 had filed an execution, in which the entire property was attached. The plaintiffs had filed an objection under Order 21 rule 58 of the CPC but, it was not accepted and therefore, they filed a suit to declare that the property was of Joint Hindu Family and the respondent No.2 could not mortgage the property to anyone, without any legal necessity. 3. The respondent No.1 in his written statement refused that the respondent no.2 was residing with the respondent no.1. On the contrary, it is pleaded that loan was obtained by the respondent No.2 alongwith plaintiffs and due to necessity the loan was taken and property was mortgaged with the respondent no.1. 3. The respondent No.1 in his written statement refused that the respondent no.2 was residing with the respondent no.1. On the contrary, it is pleaded that loan was obtained by the respondent No.2 alongwith plaintiffs and due to necessity the loan was taken and property was mortgaged with the respondent no.1. It is further submitted that the compromise took place in a civil suit was valid one. It was not the result of collusion between the respondents No.1 and 2. It is further submitted that the entire property was of the respondent No.2 and it was sold in the execution proceedings. The respondent No.1 is the owner of the property and a sale deed is executed in his favour. If any objection under order 21 rule 58 of CPC is dismissed then, no appeal could be filed. It is also challenged that the suit was not maintainable. 4. The respondent No.2 remained ex-parte. 5. During the pendency of the suit, the learned Civil Judge, Class-I vide order dated 1.5.1984, decided the objection that the suit was maintainable though no appeal was filed under order 21 rule 58 of the CPC because looking to the provisions prevalent at that time, such a suit can be filed under order 21 rule 63 of the CPC. 6. After recording the evidence of the parties, the learned Civil Judge decided all the issues. It was found that the respondent No.2 was not consuming excessive liquor and his mental condition was fit. It was proved that the respondent No.2 was not residing with the plaintiffs since last 10 years. However, it was not established that he was residing with the respondent No.1. Execution of mortgage was also found proved. It is also found proved that the respondent No.2 took the loan for necessity of the family. However, it was decided that the decree obtained by the respondent No.1 could be executed by auction of the open land and therefore, a declaratory decree relating to coownership of the plaintiffs was passed and it was directed that the respondent No.1 could get his loan amount repaid by attachment and auction of the open land bearing survey No.47 but, an injunction was granted in respect of the house that neither it may be attached, nor it may be auctioned. 7. 7. The learned Additional District Judge in the appeal found that when the entire property was mortgaged then, such type of relief could not be given to the plaintiffs, which was given by the trial Court. However, a concurrent finding was given by the appellate Court that the property was mortgaged to the respondent no.1 due to necessity for family. 8. I have heard the learned counsel for the parties at length. 9. The learned counsel for the appellants concentrated on the issue that there was no necessity for the family, so that the joint property could be mortgaged with the respondent No.1 by the respondent No.2. In support of his contention, reliance is placed upon the various judgments and orders passed by the single Benches of this Court in cases of “Shyambai Vs. Prem Singh”, [(1991) (2) MPWN Note 160], “Hazarilal S/o Soma Vs. Jugalkishore and others” [(1998) (2) MPLJ 266] and “Rupa Vs. Ramchandra” [(1984) WN Note 13]. It is submitted that if no legal necessity is proved then the Karta of family could not dispose off the property. Under such circumstances, it was submitted that the findings given by both the Courts below be set aside and suit filed by the appellants be decreed. 10. On the basis of the submissions made by the learned counsel for the appellants, if evidence adduced before the trial Court is perused then, it would be apparent that the entire property was of one Aman Singh and thereafter, it was received by the respondent no.2 and his family members. Hence, it was a Hindu United Family property. Kewal Singh (P.W.1) has stated that he did not know the respondent No.1 and he did not know about the transaction of mortgage but, in para 13 of his statement, he has accepted that he took some money from the respondent No.1 by selling some ornaments. He was shown some daily accounts of the respondent No.1 but, the witness refused his signatures on the documents, Ex.D/3 and Ex.D/4. Gajraj Singh (P.W.2) has accepted in para 3 that 10 years back, the cost of the land was Rs.3,000/- to Rs.4,000/-. Anar Bai (P.W.4) has accepted that she ousted her husband from the house, 20 years back but, still her husband was visiting the house on and often and she had talking terms with her husband. Gajraj Singh (P.W.2) has accepted in para 3 that 10 years back, the cost of the land was Rs.3,000/- to Rs.4,000/-. Anar Bai (P.W.4) has accepted that she ousted her husband from the house, 20 years back but, still her husband was visiting the house on and often and she had talking terms with her husband. However, the plaintiffs could not prove that the respondent no.2 was in habit to consume excessive liquor or his mental condition was not sound. Both the courts below have rightly observed that there was no mental problem to the respondent no.2 and it was not proved that he was in habit to consume excessive liquor. 11. In this connection, Radhavallabh (D.W.1) has stated that the respondent no.2 as well as the appellants were his clients. The respondent No.2 took a sum of Rs.3,000/- from the respondent No.1 and when he could not repay the loan, the respondent No.1 had filed a civil suit. In the execution proceedings he sought permission from the Court to participate in the auction and the bid of the respondent no.1 was highest and the property was auctioned in the sum of Rs.6,100/-. He has submitted that the respondent No.2 took the loan for his family necessity and his necessity was legal. This witness could not prove that the plaintiff Keval Singh had also taken loan from the respondent No.1 from time to time. In this connection, the learned Additional District Judge in para 16 of his judgment had mentioned that the property of Madho Singh was under auction because he took some loan from the bank and therefore, the respondent No.2 Madho Singh obtained a sum of Rs.3,000/- from the respondent No.1 by mortgaging the property with the respondent no.1 and repaid the loan of the concerned bank. The finding given by the learned Additional District Judge is no where rebutted. The allegation that the decree obtained by the respondent no.1 was collusive is not correct. If there was a collusion between the respondent No.1 and respondent No.2 then, the respondent No.2 had contested the suit and had given his statement in favour of the respondent No.1 but, it appears that the respondent No.2 remained ex-parte to support the plaintiffs. 12. The allegation that the decree obtained by the respondent no.1 was collusive is not correct. If there was a collusion between the respondent No.1 and respondent No.2 then, the respondent No.2 had contested the suit and had given his statement in favour of the respondent No.1 but, it appears that the respondent No.2 remained ex-parte to support the plaintiffs. 12. If the property was to be auctioned because of loan taken by the respondent No.2 from the bank then, to save the property, it was the legal necessity for the respondent No.2 to mortgage the property before the respondent No.1 and to get the loan of bank repaid. It is apparent from the evidence of Radhavallabh and witnesses of plaintiffs that to repay the loan, the respondent No.2 gave his physical services to the respondent No.1 and his earnings were adjusted towards the loan. However, the loan could not be repaid. It is true that 10 years prior to filing of the suit, the respondent No.2 was ousted from his house and the plaintiffs were earning independently for their family. However, when transaction took place between the respondent No.1 and the bank, he was residing with the plaintiffs and therefore, it cannot be said that it was not the duty of the respondent No.2 to repay the loan of the bank otherwise, the property would have been auctioned by the bank at that time. 13. Both the Courts below have found that there was a legal necessity to the respondent No.2, so that he mortgaged the property to the respondent no.1. The orders passed by the single Benches of this Court in various cases shown by the learned counsel for the appellants are applicable in the case but, the legal necessity to take the loan from the respondent No.1 is duly proved and a concurrent finding given by both the Courts below that the land was mortgaged due to legal necessity, cannot be disturbed in the present appeal. The learned counsel for the appellants has submitted that the liability was shifted upon the respondent No.1 to prove that there was a legal necessity to the respondent No.2 to take the loan and to mortgage the property but, when there is a concurrent finding of both the Courts below about the legal necessity then, it was the duty of the appellants to show that the alleged necessity was not legal. When it was established that the respondent No.2 was not in habit to consume excessive liquor then, the contention of the learned counsel for the appellants cannot be accepted that he took various loans from various persons to fulfil his need of liquor. Under such circumstances, it was for the appellants to show that the legal necessity established by the respondent No.1 was not correct. The law laid in various orders clears a particular law point but, it is for the concerned party to show that such law laid by the Courts is applicable on the present set of facts of a particular case. The orders passed by the single Benches of this Court are applicable but, the respondent no.1 had established that the property was mortgaged due to a legal necessity and therefore, the learned Courts below have rightly dismissed the suit filed by the plaintiffs on this count. 14. The learned Civil Judge has decreed the suit in part only for the house situated in the property but, the learned Additional District Judge in his judgment made it clear that according to the section 60 of the CPC, such apportionment of the alleged right accrued to the respondent No.1 could not be done. If the entire property was mortgaged and the loan could not be repaid then, in case of foreclosure of the right, entire mortgaged property was to be auctioned and by the sale price the entire loan alongwith interest should be adjusted and if any amount remains then, the owner of the property could get the remaining amount. Under such circumstances, the partial decree given by the trial Court was incorrect and therefore, its dismissal by the appellate Court is correct. 15. On the basis of the aforesaid discussion, there is no substantial question of law arises in the present case, so that the second appeal filed by the appellants can be accepted for final hearing. There is no basis by which any interference can be done in the judgment passed by the first appellate Court. There is no basis by which this appeal can be accepted. No substantial question of law arises to decide in this appeal. Consequently, the second appeal filed by the appellants is hereby dismissed with costs at motion stage. The appellants shall bear their own cost. 16. There is no basis by which this appeal can be accepted. No substantial question of law arises to decide in this appeal. Consequently, the second appeal filed by the appellants is hereby dismissed with costs at motion stage. The appellants shall bear their own cost. 16. A copy of the order and appellate decree (if any) be sent to both the Courts below alongwith their records for information.