of the Hindu Law by Mulla. This para shows that legal
necessity includes family debts incurred for family
business or other necessary purpose. It is mentioned that
in case of manager, who is other than the father, it is not
enough to show merely that the debt is pre-existing debt.
It is also made clear that seven instances mentioned in
this paragraph are not the only indices of legal necessity
and it is duty of Court to ascertain as to whether there
was legal necessity from the facts of that case. One
illustration shows that for maintenance of coparceners
and of the members of their family the property can be
sold. Under Hindu law, Karta of joint Hindu family has the
power to make alienation of the joint Hindu family
property for legal necessity. Father, Karta, has such power
and it can be said that in view of the meaning of legal
necessity given in para 241 his powers are larger than the
powers of other Karta. As the Karta is required to take
care of all the members of the Hindu joint family, Hindu
law has given him discretion and he is to arrive at decision
as to whether there is legal necessity. He is also having
jurisdiction to decide in what way such legal necessity can
be fulfilled, either by mortgage or sale. Such use of
discretion is however subject to the scrutiny of the Courts.
Para 243 from the same book shows that the purchaser is
expected to make inquiry with regard to legal necessity
but he is not expected to keep follow up to ascertain as to
whether the proceeds were really applied for legal
necessity.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 125 of 1992
Shridhar s/o Bajirao Pawar,
V
Bajirao s/o Dhondiba Pawar,
CORAM: T.V. NALAWADE, J.
DATE : 22 JULY 2016
Citation: 2016(6) ALLMR 280
1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.186/1983 which was
pending in the Court of the learned Additional District
Judge, Ambajogai, District Beed. The appeal was filed by
original defendant No.2, purchaser against the judgment
and decree of Regular Civil Suit No.139/1977 which was
pending in the court of the Civil Judge, Junior Division,
Ambajogai. The suit filed for relief of partition by the
present appellant against the coparcener and the
purchaser was decreed in their favour by the trial Court
and this decision is set aside by the District Court and the
transaction is protected. Both the sides are heard.
In short, the facts leading to the institution of the
proceeding can be stated as follows :-
2) Plaintiff Nos.1 and 2 were minor on the date of
the suit and they are sons of defendant.1 Bajirao. Plaintiff
No.3 is the mother of plaintiff Nos.1 and 2 and the wife of
defendant No.1. Defendant No.2 Shivaji is purchaser of
one suit property from defendant No1.
3) The suit was filed in respect of two agricultural
lands like Survey No.109/A admeasuring 5.4 acres, land
Survey No.113/E admeasuring 2 acres 39 gunthas both
situated at Devla, Tahsil Ambajogai and one house
property situated in the same village.
4) It is the case of the plaintiffs that defendant
No.1 is addicted to bad habits including liquor and ganja
and for satisfaction of bad habits he sold Survey No.109/A
to defendant No.2 under sale deed dated 16-5-1974. It is
contended that there was no consent of the plaintiffs for
this transaction. It is contended that the price of the land
was much more than the price mentioned in the sale
document. It is contended that the sale proceeds were not
utilized for the joint family of the plaintiffs and defendant
No.1 and so this transaction is not binding on the shares
of the plaintiffs. Relief of partition of this property and
other properties was also claimed.
5) Defendant No.2 filed written statement and he
contested the matter. He denied that defendant No.1 was
addicted to liquor and other bad habits and for
satisfaction of bad habits he had sold the property to
defendant No.2. He denied that the sale proceeds were
not utilized for the benefit of the family. He denied that
price of the land was much more than the price for which
it was sold to the defendant No.2.
6) It is the case of the defendant No.2 that the
plaintiffs and defendant No.1 have been living together
and even on the date of the suit they were living together.
It is contended that the land Survey No.109 was not under
cultivation and as the land was not yielding any income
defendant No.1 decided to sell it. It is contended that the
defendant No.1 was indebted. It is contended that
defendant No.1 was intending to start some business and
ultimately he had agreed to sell the property to defendant
No.2 for consideration of Rs.10,000/-. It is contended that
on 12-2-1974 registered agreement was executed and
then on 16-5-1974 by accepting remaining amount sale
deed was executed by defendant No.1 in favour
defendant No.2. It is contended that plaintiffs were
present in the office of the Sub Registrar and so they had
knowledge about the transaction. It is contended that
defendant No.1 utilized this amount for family needs and
also for his business which was hotel business started in
the rented premises of Ambajogai Municipal Council. It is
contended that all the plaintiffs and defendant No.1 are
living there and the suit is filed by plaintiffs in collusion
with defendant No.1.
7) Defendant No.1 did not appear in the suit and
ex parte order was made against him. Issues were framed
on the basis of aforesaid pleadings. Both the sides gave
evidence. The trial Court had decreed the suit by holding
that the amount was not utilized for legal necessity of the
family as it is the case that the amount was used for
business which was newly started by defendant No.1. It
was held that such need cannot be called as legal
necessity under the provisions of the Hindu Law. The first
appellate Court has considered the relevant record. The
circumstance that there is apparent collusion between the
plaintiffs and defendant No.1 is also considered and it is
held that the property was sold for the needs of the family
and the plaintiffs are benefited as the sale proceeds were
used for them.
8) The appeal was admitted by this Court, other
Hon'ble Judge, on 20-3-1992 but substantial questions of
law were not formulated. In view of nature of dispute and
the aforesaid finding given by the District Court, following
substantial question of law is considered in the present
appeal.
Whether the District Court has committed error in holding
that the property was sold for legal necessity as defined
by the provisions of the Hindu Law ?
10) On the date of the suit age of plaintiff No.1 was
15 years and age of plaintiff No.2 was 12 years. Suit was
filed in the year 1977. The documents like agreement of
sale and the sale deed are proved and exhibited by the
trial Court. Exhibit 39, agreement dated 12-2-1974 shows
that out of consideration of Rs.10,000/- amount of
Rs.1000/- was accepted by defendant No.1 and the
agreement was registered in the office of the Sub
Registrar. The amount was paid to defendant No.1 in
presence of the Sub Registrar and there is such
endorsement on Exhibit 39. Copy of sale deed is at
Exhibit 43. It was executed on 16-5-1974. In this
document it is mentioned that amount of Rs.8,500/- was
already paid by the purchaser from time to time to the
vendor. Amount of Rs.1500/-, remaining consideration,
was paid on the date of execution of the sale deed.
10) It is true that there is no mention about the
purpose for which the land was sold in the aforesaid two
documents. The recitals of the documents are relevant in
such cases but they are not the conclusive proof of the
purpose. In such cases, from the substantive evidence and
other circumstances inference needs to be drawn by the
Court.
12) Defendant No.2 has given evidence to prove the
legal necessity. He has given evidence that the plaintiffs
and defendant No.1 were living in joint Hindu family even
on the date of the suit. Defendant No.2 has given evidence
that he had visited the land when he entered into
agreement. He has given evidence that the land was
fallow, not under cultivation for many years and defendant
No.1 had no bullocks or agricultural implements. He has
given evidence on the market price of the land at the
relevant time. Evidence is given that remaining lands
were given for cultivation by plaintiffs and defendant No.1
and the plaintiffs and defendant No.1 had shifted to
Ambajogai for doing business. He has given evidence that
the defendant No.1 is behind the suit and there is
collusion between plaintiffs and defendant No.1. In the
cross-examination he has admitted that he had not visited
the land prior to the date of purchase but there is
evidence in examination-in- chief of aforesaid nature and
in the cross-examination also he has given evidence that
he had ascertained that the land was fallow. He has given
evidence that there are two more lands with the family of
the defendant No.1 like Gat No.5 and other land bearing
Gat No.296 of village Devla. He has given evidence that
the defendant No.1 had informed that he purchased
articles for his hotel business when the sale deed was
executed. He has given evidence that the plaintiffs were
present when the agreement was made and when the sale
deed was executed. He has given evidence that plaintiffs
and defendant No.1 had shifted to Ambajogai, they were
doing business there and so they had disposed of the suit
property by selling it to defendant No.2. One Babruwahan
is examined by defendant No.2 in support of his version
that defendant No.1 was not cultivating the land and he
had shifted to Ambajogai. Evidence is given on the market
price of the land by this witness and he is attesting
witness on the sale deed.
12) Meaning of legal necessity is given in para 241
of the Hindu Law by Mulla. This para shows that legal
necessity includes family debts incurred for family
business or other necessary purpose. It is mentioned that
in case of manager, who is other than the father, it is not
enough to show merely that the debt is pre-existing debt.
It is also made clear that seven instances mentioned in
this paragraph are not the only indices of legal necessity
and it is duty of Court to ascertain as to whether there
was legal necessity from the facts of that case. One
illustration shows that for maintenance of coparceners
and of the members of their family the property can be
sold. Under Hindu law, Karta of joint Hindu family has the
power to make alienation of the joint Hindu family
property for legal necessity. Father, Karta, has such power
and it can be said that in view of the meaning of legal
necessity given in para 241 his powers are larger than the
powers of other Karta. As the Karta is required to take
care of all the members of the Hindu joint family, Hindu
law has given him discretion and he is to arrive at decision
as to whether there is legal necessity. He is also having
jurisdiction to decide in what way such legal necessity can
be fulfilled, either by mortgage or sale. Such use of
discretion is however subject to the scrutiny of the Courts.
Para 243 from the same book shows that the purchaser is
expected to make inquiry with regard to legal necessity
but he is not expected to keep follow up to ascertain as to
whether the proceeds were really applied for legal
necessity.
13) In the pleadings of the plaint, plaintiffs have
contended that they were doing business of inn at
Ambajogai. There is record like copy of judgment
delivered in Civil Suit No.167/1976 which was filed by
Chief Officer, Ambajogai Municipal Council against
defendant No.1 in respect of rented premises. The
judgment shows that one premise was with defendant
No.1 on rent basis and notice was served on him on 11-2-
1975 to vacate the premises and then suit was filed on 30-
4-1975. Suit was decreed on 30-6-1977.
14) In the present matter agreement was entered
into on 12-2-1974 and it can be said that possession of the
property was with the family of the plaintiffs and
defendant No.1 from prior to the date of agreement.
Though in the pleadings it is the case of the plaintiffs that
they were driven out of the house by defendant No.1 and
then they had started business in the premises in
Ambajogai, the record is otherwise and it shows that the
premises was given on rent basis to defendant No.1 and
he was the proprietor of the said business. When there is
collusion between defendant No.1 and plaintiffs, some
inference needs to be drawn against the plaintiffs and
defendant No.1 as there is power with the Karta of joint
Hindu family to decide as to whether there is legal
necessity for selling the property.
15) Learned counsel for the respondent placed
reliance on cases reported as 2010 (5) Mh.L.J. 713
(Ramchandra vs. Vasant), A.I.R. (33) 1944 Oudh 92 (Sant
Bakhsh Singh v. Lachhman Prasad) and the decision
given of this Court, other Hon'ble judge in Second Appeal
No.287/1989 (between Suryakant Manikrao Deshmukh
and Mahavir Sahebrao Maske). In those cases also when
the question of legal necessity was involved, the suit
involving setting aside of the sale, made by father and
father did not turn up to give evidence, presumption was
drawn that there was legal necessity. In the present
matter also there is evidence that the plaintiffs and
defendant No.1 are living together and they are benefited
by the consideration. As there is no evidence, the
inference is not possible that defendant No.1 was addicted
to bad vices and the sale proceeds were not utilized for
the family. If they are living together there was some
reason for the sale and the reason given by the defendant
No.2 is that the land was not giving sufficient income and
so they started business at Ambajogai. Thus necessary
probability was created by the defendant No.2 in his
favour on the point of legal necessity and the District
Court has not committed any error in holding that this
burden is discharged by the purchaser. In the result, the
point is answered against the appellants and the appeal
is dismissed.
Sd/-
(T.V. NALAWADE, J. )
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