paragraphs 15 and 16. After considering the evidence on record, the
learned District Judge observed that, no doubt, there was outstanding
amount of loan of Tagai. However, there was no pressing demand for
recovery of said loan. There was neither any attachment nor any notice for
sale of the suit land. At the most, it can be said that there was dues and
the said dues are from 195455. The liability was not pressing liability. In
the case of Smt. Rani and another (supra), the Apex Court has held that
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 legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made proper and bonafide
enquiries about the existence of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the necessity. Perusal of
the recitals in the sale deed shows that the property was sold for meeting
private expenses. It, however, does not refer to either Govt. debt or debt
obtained privately. No material is produced on record by the defendant No.
2 as regards the legal necessity at the time of the execution of the sale deed
dated 08/04/1969. No material is also produced by defendant No. 2 to
show that he had made proper and bonafide enquiries and he did all that
was reasonable to satisfy himself as to the existence of the necessity. If the
tests laid down by the Apex Court in the case of Smt. Rani and another
(supra) are applied to the present case, I do not find that the learned
District Judge committed any error in holding that the defendant No. 2 did
not establish expenses of legal necessity.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.103 OF 1990
Basheer s/o. Amir Patel
VERSUS
Dnyaneshwar S/o. Bhikarchand
CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 24th NOVEMBER,2014.
Citation; 2015(5) MHLJ 853
1) Heard Mr. Mustafa, learned counsel for appellant and Mr.
Aanand Bhandari, learned Counsel for Respondents, at length.
2) By this appeal under Section 100 of the Code of Civil
Procedure, 1908 (for short, C.P.C.) original Defendant No.2 has challenged
Judgment and Decree dated 23rd January, 1990 passed by learned III
Additional District Judge, Aurangabad in Regular Civil Appeal
No.102/1985. By that order, the learned District Judge partly allowed the
appeal instituted by original plaintiffs (Respondent Nos. 1 to 9) and held
that the plaintiffs No. 1, 2 and 6 are entitled to 1/4th share in half portion of
the property sold by defendant No.1 – Bhikarchand and they are also
entitled to 1/4th share in 35 gunthas land. Plaintiffs No.7 and 9 are entitled
to equal share in 35 gunthas land. The plaintiffs shall be placed in joint
possession with defendant No.2. The learned District Judge declared that
saledeed dated 8th April, 1969 (Exhibit65) executed by defendant No.1 –
Bhikarchand in favour of defendant No.2 (appellant herein) is null, void
and not operative in respect of shares of the plaintiffs as declared above.
The parties shall be hereinafter referred to as per their status in the trial
court. The facts and circumstances of the case, giving rise to filing of the
present Second Appeal, briefly stated are as under,
a) The plaintiffs instituted a suit for partition and separate
possession of their 13/14th share in respect of land bearing Gat No.826, in
all admeasuring 24 acres and 36 gunthas, situate at village Andhari, Tq.
Sillod, District Aurangabad; and for declaration that saledeed dated 8th
April, 1969 executed by defendant No.1 in favour of defendant No.2, is
null, void, inoperative and ineffective against the plaintiffs. The controversy
in this appeal is in respect of 14 Acres 8 Gunthas out of 24 Acres 36
Gunthas of Gat No. 826 (suit land).
b) It is the case of the plaintiffs that Survey No.167/1, which was
given Gat No. 826, is an ancestral property of the plaintiffs.
c) Defendant no.1 is father of plaintiff No.1 and husband of
defendant No.6. Namdeo, since deceased, is brother of defendant No.1.
Plaintiff No.7 is son and defendant No.8 is daughter of deceased Namdeo.
Plaintiff No.9 – Banabai is widow of deceased Namdeo. Plaintiffs No.3 to 5
are daughters of defendant No.1. It is the case of the plaintiffs that
deceased Namdeo,defendant No.1 and plaintiffs were in joint family and
the property was also joint till death of Namdeo, which took place on 5th
August, 1969. Defendant No.1 was addicted to bad vices, and without the
consent of other coperceners, sold the suit land in favour of defendants
No.2 for a consideration of Rs. 2,000/ on 8th April, 1969. The suit land is
Bagayat land and its market value, at the relevant time, was not less than
Rs.45,000/. On 14th February, 1979, they came to know about the sale
transaction. There was no legal necessity for defendant No.1 to sell the suit
land in favour of defendant No.2. Defendant No.1 was not competent to
alienate the property. The consideration derived from the sale transaction
was not utilized for the family benefit. Defendant No.2 had instituted
Regular Civil Suit No.6/1979 for perpetual injunction against them and
defendant No.1 in respect of the suit land. Defendant No.2 instituted that
suit on the basis of title derived from saledeed dated 8th April, 1969. The
suit was compromised between defendant No.1 and defendant No.2 The
said compromise is not binding on them. Though under the saledeed dated
8
th April, 1969, 12 acres and 18 gunthas land was sold to defendant No.2,
he, however, illegally and unauthorizedly, occupied the land admeasuring
14 acres and 8 gunthas. The plaintiffs, therefore, prayed for partition and
separate possession of their 13/14th share along with the share in well
water and Mango trees and for declaration that the saledeed dated 8th
April, 1969 is null and void, inoperative and ineffective against the
plaintiffs. The said suit was instituted on 23rd January, 1980.
d) Defendant No.2 resisted the suit by filing written statement at
Exhibit49. He admitted that the suit land is the ancestral property. It was
contended that it was incorrect and false that defendant No.1, being elder,
was Karta and Manager of the joint family. It was further denied that
defendant No.1 and his elder brother Namdeo remained joint in the
property till death of Namdeo on 5th August, 1969. The allegation of the
plaintiffs that no partition in respect of the suit land had taken place
amongst the coparceners, was totally incorrect and false and it was
accordingly denied. It was submitted that Namdeo was separated from
defendant No.1 and both brothers were enjoying the portion of the suit
property independently. Accordingly, under the ownership, their names
were entered by the competent revenue authorities and mutation entry was
also sanctioned in their name, showing 8 Annas share of each brothers in
7x12 extract in respect of the suit land. Defendant No.1 and Namdeo sold
the area admeasuring 12 acres and 18 gunthas for consideration of
Rs.2,000/ on 8th April, 1969 with share in the mango tree from the eastern
side to land Survey No.167. Since then, defendant No.2 is in continuous
possession over the land. Defendant No.1 and Namdeo had sold 1 acre and
30 gunthas land. Accordingly, they executed a SaudaPawati on 26th
February, 1971. On that basis, Consolidation Officer entered name of
defendant No.2. Thus, defendant No.2 became owner and actual possessor
of the land to the extent of 14 acres and 8 gunthas. Accordingly, in new
Gat number (Gat No. 826). Defendant No.2’s name was entered in 7/12
extract. Defendant No.2 further contended that the Sauda pawti dated 26th
February, 1971, is not traceable at present and the same will be filed later
on, or secondary evidence will be given after obtaining permission of the
Court, if the said document is not traced. Defendant No.2 further
contended that defendant No.1 was competent and was entitled to alienate
the suit land for legal necessity, i.e. for performing marriages of his
daughters; for making payment of Government debts and also dues of
private persons. Defendant No.1 and Namdeo jointly executed the saledeed
of the respective shares in the suit land. Defendant No.2 also asserted
that compromise was arrived at in Regular Civil Suit No.6/1979 on
17.2.1979. The plaintiffs ought to have challenged the compromise. Since
the plaintiffs have not challenged the compromise during prescribed period
of limitation, they are estopped by their conduct. Reference was also made
about the agreement that took place in Regular Civil Suit No. 6/1979
where under, it was agreed that defendant No.2 will execute a registered
saledeed in respect of 1 acre and 7 gunthas land in favour of defendant
No.2 in that suit, after accepting Rs.15,000/. However, defendant No.1
told defendant No.2 (plaintiff in that suit) that the amount should not be
written in the compromise as he wanted to show less amount in the
registered saledeed, likely to be executed by defendant No.1 in their
favour, i.e. defendants in Regular Civil Suit No.6/1979 to save stamp duty.
e) In the additional written statement, defendant No.2 asserted
that plaintiff and defendant No.1 are bound by the earlier
settlement/compromise, which operates as res judicata and rule of estoppal
also applies. In pursuance of the saledeed, defendant No.2 has made
improvement in the land. The present suit is instituted by the plaintiffs in
collusion with defendant no.1.
f) On the basis of pleadings of the parties, learned Trial Judge
framed necessary issues. Parties led their evidence. After considering the
evidence on record, learned Trial Judge held that the plaintiffs have proved
that the suit land was ancestral property of the plaintiffs and defendant
No.1 and deceased Namdeo till 5th August, 1969 and at the time when the
saledeed was executed in favour of defendant No.2 on 8th April, 1969. The
plaintiffs failed to establish that defendant No.1 had no right to alienate the
entire suit land; that the plaintiffs failed to establish that they are entitled
to 13/14th share in the suit land. That, defendant No.1 and Namdeo sold
the suit land for legal necessity and for the benefit of their family. That,
defendant No.2 failed to prove that the Court has no pecuniary jurisdiction
to entertain and try the suit. The issue as to whether the principles of res
judicata as also principles of estoppal apply to this suit was answered by
holding that these issues do not survive. Consistent with these findings, the
learned Trial Judge dismissed the suit.
3) Aggrieved by that decision, the plaintiffs preferred Regular
Civil Appeal before the District Court. By the impugned order the learned
District Judge allowed the appeal. It is against this decision, original
defendant No.2 has preferred this second appeal. The Second Appeal was
admitted on 2nd March, 1990, as Grounds No.VI to IX, XI, XV and XVI raise
substantial questions of law, which read as under,
“(VI) That the Hon'ble learned Lower Appellate
Court misappreciated the evidence in respect of
existence of legal necessity to sell the half area of
survey No. 167 to the Respondent No.2 under a
registered saledeed with consideration.
(VII) That the Hon'ble learned IIIrd Additional
District Judge, Aurangabad committed an illegality
in decreeing the suit of the plaintiffs to the extent of
half area of the land in dispute of the share of
respondent No.1 that is sold by him by registered
sale deed to the respondent No.2 ignoring the
principles of Hindu law in respect of purchase made
by stranger after the due enquiries and with
valuable consideration and who is a bonafide
purchaser. The learned IIIrd Additional District
Judge, Aurangabad is not justified in partly
reversing the Judgment, order and Decree of the
Trial Court in their respect.
(VIII) That when it is admittedly in evidence that
there were outstanding loans against the loan sold
and when it is held that at least the outstanding
loans of the Government dues are proved
concurrently by both the Courts below, then the
Hon'ble learned IIIrd Additional District Judge,
Aurangabad is not justified in reversing the
conclusion of the Trial Judge on the point of
existence of legal necessity to sell immovable
property.
(IX) That the Hon'ble learned IIIrd Additional
District Judge, Aurangabad should have appreciated
that the actual application of the monies and for
meeting the legal necessities, is not required to be
proved by a stranger/bonafide purchaser, but such
a stranger/bonafide purchaser is required to prove
only the existence of legal necessity for a Karta of
the joint Hindu Family coparcernery to sell the joint
Hindu property and that such stranger/purchaser
made enquiries about the existence of such legal
necessity. This principle has been overlooked by the
Hon'ble learned III Additional District Judge,
Aurangabad that has resulted into wrong, illegal
and erroneous Judgment, Order and Decree in the
IInd Appeal.
(XI) That, at any rate the Hon'ble learned IIIrd
Additional District Judge, Aurangabad ought to
have realized that the respondent no.1 was and is
under pious obligation to pay back the loan amount
against the lone in dispute that was incurred by his
late father by obtaining the same from the
Government. Therefore, even if there was or is any
legal necessity but as there was pious obligation to
pay back the debt outstanding against the deceased
father and against the security of the land in
dispute and as the land in dispute is sold, in such
circumstances and others, so therefore the sale is
justifiable even on the theory of pious obligation of
a Hindu son to repay the antecedent debt.
Therefore, the appeal could not have been allowed
by the learned Hon'ble Appellate Lower Court.
(XV) That the Hon'ble learned Lower Appellate
court should have realized that the other sons of the
respondent No.1 were not in existence and were
not even in the womb of their mother when the
land in dispute was sold by registered saledeed to
the present Appellant by the Respondent No.1 and
deceased Name. As such, the Hon'ble learned IIIrd
Additional District Judge, Aurangabad could not
have fixed the shares of the other corparcenors
taking into consideration those persons also.
(XVI) That the Hon'ble learned Lower appellate
Court should have realized that the earlier Regular
Civil Suit filed by the present Appellant on the
strength of this titled of ownership in respect of
land in dispute based on registered saledeed and
for issuing of perpetual injunction so that the
defendants of earlier suit bearing R.C.S. No. 6/79 of
the court of civil Judge, Junior Division, Taluka
Sillod should not interfere in his possession over
that land and against the present respondent no.9,
respondent no.6, respondent no.1 and respondent
no.8 operate as Judgment by admission on account
of compromise in between those parties as the title
of the present Appellant and his entitlement to
possession were admitted by the Decree of earlier
Suit No. 6/79. Hence these present respondents be
estopped from challenging the title of the Appellant
by way of representing the suit bearing R.C.S. No.
3/80 out of which the present Second Appeal
arises. The jurisdiction of the Hon'ble Lower Trial
Court was ousted because of the reason of existence
of Judgment on compromise in between the parties
of R.C.S. No. 6/79. Hence, the present suit was not
maintainable in respect of those parties and in
respect of the land in dispute.”
4) The plaintiffs have filed CrossObjection St.No.7009/1990, as
plaintiffs No.7 to 9 were not given any share in the share of Namdeo.
5) In support of this appeal, Mr.Mustafa submitted that the
learned Trial Judge dismissed the suit by holding that defendant No.2
proved that there was legal necessity, compelling defendant No.1 to sell the
suit land in his favour. He invited my attention to (i) the recitals in the saledeed
dated 8th April, 1969 (Exhibit65) (ii) evidence of DW No.2 – Nandu
Pawar at exhibit 81 (iii) written statement filed by defendant No.2 at
Exhibit49 and in particular paragraph 4 thereof. DW 2 Nandu Pawar at the
relevant time, was working as a Clerk in Tehsil office (Tagai section) (iv)
evidence of PW No.1 – Banabai Namdeo at Exhibit60, and in particular
paragraphs 4 and 5 of the Crossexamination. In paragraph 4, PW No.1
admitted that she came to know that the saledeed was executed after one
month of its execution. In other words, PW No.1 admitted that she
acquired knowledge about execution of the saledeed sometime in May
1969. In paragraph 5, she admitted that plaintiff No.9 was married.
Marriage of plaintiff No.9 was solemnized before 45 months. Marriage of
plaintiff No.1 was solemnized before 34 years. Marriage of plaintiff No.6 –
Kesharbai was solemnized before ten years. Thus, defendant No.2 had
discharged the burden of proving legal necessity that compelled defendant
No.1 to sell the suit land by executing the saledeed.
6) Mr. Mustafa submitted that having regard to the evidence of
P.W. 1 Banabai that she came to know about the execution of sale deed
after one month (in May, 1969), the Suit instituted by the plaintiffs in the
year 1980 is clearly barred by limitation. He invited my attention to
paragraph 3 of the Written Statement, wherein the defendants specifically
raised plea of limitation. He invited my attention to the evidence of P.W. 2
Guneshwar S/o Bhikarchand and in particular paragraph 4 thereof. In
paragraph 4, P.W. 2 deposed that area of G.No. 826 is actually 12 Acres 18
gunthas. Due to the mistake in consolidation proceedings, defendant No. 1
has encroached upon the area to the extent of 1 Acre 30 gunthas land out
of G.No. 825. Defendant No. 2 has instituted R.C.S. No. 6/1979 in respect
of the suit land against his father Bhikarchand, mother Yamunabai and
others. The Suit ended in compromise. He submitted that plaintiff ought
to have challenged the compromise arrived at in R.C.S. No. 6/1979. He
further submitted that G.No. 825 and 826 were formed out of S.No. 167
admeasuring 14 Acres 8 gunthas. Namdeo was alloted 12 Acres 18 gunthas
and Bhikarchand was allotted 12 Acres 18 gunthas. There was partition
between Namdeo and Bhikarchand. The present Suit is in respect of land
admeasuring 12 Acres 18 gunthas. As against this, in the year 1969, claim
was only in respect of 1 Acre 7 gunthas. He, therefore, submitted that
plaintiff ought to have instituted Suit for partition and separate possession.
Mr. Mustafa also relied upon Sections 101 to 104 of the Indian Evidence
Act, 1872 and contended that the plaintiffs have not adduced any evidence
and discharged the burden while challenging the sale deed dated
08/04/1969. He submitted that the Courts below failed to consider this
vital aspect. He invited my attention to the order dated 02/03/1990
admitting the Appeal. He submitted that though the ground of limitation is
not specifically framed, in view of proviso to Section 100 (5) of C.P.C., this
Court has ample power to frame the ground of limitation as it raise
substantial questions of law and this point goes to the root of the matter.
7) In support of his submissions, Mr. Mustafa relied upon the
following decisions :
(I) Srikrishn Das Vs.Nathu Ram,
1927 (29) BOMLR 825
(II) Sunder Das and Ors. Vs. Gajananrao and Ors.,
(1997) 9 SCC 701
(III) Sakharam Mahadji Rajegore and Ors. Vs.
Datta Vithalrao Rajegore and Ors.,
2010 (6) Mh.L.J. 225.
8) In the case of Srikrishn Das (supra), this Court held that, where
a purchaser acting in good faith, upon due inquiry, is able to show that the
sale itself was justified by legal necessity he is under no obligation to
inquire into the application of any surplus and is not bound to make
repayment of such surplus to the members of the family challenging the
sale.
9) In the case of Sunder Das (supra), it was held that father as
karta of joint Hindu family is legally entitled to alienate the property of the
joint family and interest of minor member of the family for his own
requirement unless it is shown that the transaction was tainted by any
immoral or illegal purpose. Recital contained in sale deed that sale of the
ancestral house was for family necessity and no evidence led to rebut the
clear recital. It was held that seller who was presumed to be well
acclimatised with court proceedings (as he was an Upper Division Clerk in
Civil Court at the relevant time) standing by the transaction and the recitals
in the sale deed, it was held that the transaction was not tainted by any
immoral conduct.
10) In the case of Sakharam (supra), it was held that karta of the
family, including father, can sell the property for legal necessity or for
benefit of the family estate. It is well settled that legal necessity does not
mean actual compulsion; it means pressure upon the estate which in law
may be regarded as serious and sufficient.
11) On the other hand, Mr. Bhandari supported the impugned
orders. He submitted that what was sold to defendant No. 2 was 12 Acres
18 gunthas. However, factually he is found in possession of 14 Acres 7 R.
Namdeo had died in the year 1969 and defendant No. 2 has come out with
the case of Sauda Pawti dated 26/02/1971. The said Sauda Pawti is not
produced on record. He also invited my attention to the sale deed dated
08/04/1969, wherein recital is to the effect that the suit land is sold for
meeting private expenses. He submitted that defendant No. 2 – purchaser
has not established the legal necessity. In support of this submission, he
invited my attention to the evidence of D.W. 2 Nandu, as also the decision
of Apex Court in the case of Smt. Rani and Anr. V/s Smt. Santa Bala
Debnath and Ors., AIR 1971 Supreme Court 1028 to contend that 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
proving legal necessity may be discharged by actual necessity or by proving
that he made proper and bonafide enquiries about the existence of necessity
and that he did all that was reasonable to satisfy himself as to existence of
necessity. He submitted that perusal of evidence of defendants shows that
they have not discharged the burden to establish existence of legal
necessity.
12) As far as ground of limitation is concerned, in the first place,
he submitted that it is a mixed question of law and facts. Defendant No. 2
did not specifically contend as to on what ground Suit is barred by
limitation. Having regard to the prayers made in the Suit, the period of
limitation is 12 years as contemplated in Article 109 of the Limitation Act.
In support of this submission, he relied upon the decision of Apex Court in
the case of Baljinder Singh V/s Rattan Singh, (2008) 16 SCC 785. He
submitted that the sale deed is executed on 08/04/1969. In pursuance
thereof, defendant No. 2 was put in possession in 1969 and the present Suit
is instituted in 1980, which is well within 12 years and, therefore, the Suit
is not barred by limitation. He submitted that after appreciating the
evidence on record, the learned District Judge held that defendant No. 2
did not establish legal necessity. He, therefore, submitted that no case is
made out for invoking powers u/s 100 of C.P.C.
13) Mr. Bhandari further submitted that respondents No. 1A to 1
E, 2 to 4 and 6 have filed cross objections. He submitted that the learned
District judge ought to have held that appellants No. 1, 2 and 6 therein are
entitled to 1/4th share each in half portion of the property sold and that
they are further entitled to 1/4th share each in 35 gunthas land. Appellants
No. 7 and 9 therein are entitled to 1/4th share each in 35 gunthas land. He
further submitted that in execution proceedings, appellants have raised
these objections. They were overruled by the executing Court. Against
that decision, they have preferred Civil Revision Application in this Court
and the same is pending. He, therefore, submitted that it may be clarified
that decision in this Second Appeal will not come in the way of these
respondents while agitating this issue in Civil Revision Application.
14) I have considered rival submissions made by the learned
counsels for the parties. I have perused the material on record and the
original record.
15) As noted earlier, the Appeal is admitted as grounds No. (vi) to
(ix), (xi), (xv) and (xvi) raise substantial questions of law. Grounds No.
(vi) to (ix) and (xi) pertain to legal necessity. It is, therefore, necessary to
find out whether defendant No. 2 – purchaser has discharged the burden
and has established that sale deed in his favour was effected due to legal
necessity. Defendant No. 2 has relied upon the evidence of D.W. 2 Nandu,
as also the evidence of P.W. 1 Banabai. D.W. 2 Nandu Pawar deposed that
Ramchandra Maroti of Andhari obtained Tagai from Tahsil Sillod for well
amounting to ` 2,000/ (Rupees Two Thousand only) in the year 195455.
As on 19/03/1969, the outstanding recovery of Tagai from Ramchdnra
Maroti was ` 1,429.10 (Rupees One Thousand Four Hundred Twenty Nine
and paise Ten only) (principal amount ` 570/ and interest ` 859.10 ).
Ramchandra Maroti has deposited interest on 31/03/1969 and outstanding
amount on 31/03/1969 was ` 1,029.10 (Rupees One Thousand Twenty
Nine and paise Ten only).
16) As far as evidence of P.W. 1 Banabai is concerned, she deposed
that marriage of plaintiff No. 9 Mira was solemnized before 45 months.
The marriage of plaintiff No. 1 Dnyanesh was solemnized before 34 years.
The marriage of plaintiff No. 6 Kesharbai was solemnized before 10 years.
Her deposition was recorded on 09/10/1984.
17) The learned District Judge has considered this aspect in
paragraphs 15 and 16. After considering the evidence on record, the
learned District Judge observed that, no doubt, there was outstanding
amount of loan of Tagai. However, there was no pressing demand for
recovery of said loan. There was neither any attachment nor any notice for
sale of the suit land. At the most, it can be said that there was dues and
the said dues are from 195455. The liability was not pressing liability. In
the case of Smt. Rani and another (supra), the Apex Court has held that
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 legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made proper and bonafide
enquiries about the existence of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the necessity. Perusal of
the recitals in the sale deed shows that the property was sold for meeting
private expenses. It, however, does not refer to either Govt. debt or debt
obtained privately. No material is produced on record by the defendant No.
2 as regards the legal necessity at the time of the execution of the sale deed
dated 08/04/1969. No material is also produced by defendant No. 2 to
show that he had made proper and bonafide enquiries and he did all that
was reasonable to satisfy himself as to the existence of the necessity. If the
tests laid down by the Apex Court in the case of Smt. Rani and another
(supra) are applied to the present case, I do not find that the learned
District Judge committed any error in holding that the defendant No. 2 did
not establish expenses of legal necessity.
18) Mr. Mustafa submitted that the Suit is clearly barred by
limitation. P.W. 1 Banabai admitted that she acquired knowledge about the
sale deed within one month from its execution. The sale deed was executed
on 08/04/1969 and she acquired knowledge about it in May, 1969. The
Suit is filed in the year 1980, which is clearly barred by limitation. I do not
find any merit in this submission. Article 109 of the Limitation Act reads as
under, :
Article Description Period of Time from which
No. of suit limitation period begins to run
109. By a Hindu governed Twelve When the alienee
by Mitakshara law to years takes possession
set aside his father's of the property
alienation of
ancestral property.
19) It is not in dispute that the suit land is the ancestral property
and the plaintiffs are Hindu governed by Mitakshara Law. It is also not
disputed that alienation is made by defendant No. 1 Bhikarchand who is
father of plaintiffs No. 1 to 5. Article 109 of the Limitation Act lays down
period of 12 years and the time from which period begins to run is when
the alienee takes the possession of the property. In the instant case, in
pursuance to the sale deed dated 08/04/1969, defendant No. 2 took
possession on 08/04/1969. The Suit is instituted in the year 1980, which is
well within 12 years and, therefore, can not be said to be barred by
limitation. I, therefore, do not find that the learned District Judge
committed any error in decreeing the Suit.
20) Mr. Mustafa submitted that, in any case, plaintiffs should have
filed Suit challenging the compromise entered into between the parties in
R.C.S. No. 6/1979. The compromise was entered into on 17/02/1979. The
submission is stated to be rejected. Basically the plaintiffs have instituted
the Suit for declaration that the sale deed dated 08/04/1969 be declared as
null and void, inoperative and ineffective against the plaintiffs. The
plaintiffs have also sought partition and separate possession of their 13/14th
share in the suit land. I, therefore, do not find any merit in the
submissions of Mr. Mustafa.
21) Mr. Mustafa also relied upon Sections 101 to 104 of the Indian
Evidence Act, 1872 and contended that the plaintiffs have not adduced any
evidence and discharged the burden while challenging the sale deed dated
08/04/1969. He submitted that the Courts below failed to consider this
vital aspect. I do not find any merit in this submission. As noted earlier,
burden was on defendant No. 2 to establish legal necessity. For the
reasons already recorded, I have held that defendant No. 2 did not establish
legal necessary.
22) As far as submission of Mr. Bhandari as regards shares is
concerned, it is evident that respondents have raised objection before the
executing Court. Executing Court has overruled objections so raised. The
respondents have instituted Civil Revision Application and the same is
pending in this Court. In view thereof, notwithstanding the disposal of the
Second Appeal, all the contentions raised by the respondents in that Civil
Revision Application are expressly kept open. In light of the aforesaid
discussion, the substantial questions of law are answered accordingly.
Appeal fails and the same is dismissed. The Cross Objections are partly
allowed.
[R.G.KETKAR, J.]
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