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Tuesday, 14 December 2021

Whether son can challenge alienation of joint family property by father for legal necessity?

  Once the factum of existence of legal necessity

stood proved, then, in our view, no co-coparcener

(son) has a right to challenge the sale made by the

karta of his family. The plaintiff being a son was one of

the co-coparceners along with his father Pritam Singh.

He had no right to challenge such sale in the light of

findings of legal necessity being recorded against him.

It was more so when the plaintiff failed to prove by any

evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the

defendants to prove the factum of existence of legal

necessity was either insufficient or irrelevant or no

evidence at all.” {Para 26} 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7037 OF 2021

BEEREDDY DASARATHARAMI REDDY  Vs V. MANJUNATH AND ANOTHER 

Author: SANJIV KHANNA, J.

Dated: DECEMBER 13, 2021.

The legal issue which arises for consideration in the present

appeal is whether K. Veluswamy, as a Karta, has legal authority to

execute agreement to sell dated 8th December 2006 for sale of the

suit land, being agricultural land – (i) Sy.No. 7/1P1, measuring 4

acres, 21 guntas of land; (ii) Sy.No. 7/1P2 measuring 5 acres of

land; and (iii) Sy.No. 8/3P3 measuring 2 acres of land, in all 11

acres 21 guntas of wet land, situated in Bagganadu Kaval Village,

J.G. Hally Hobli, Hiriyur Taluk, Chitradurga District, Karnataka.


2. It is an accepted position that on 8th December 2006, K.

Veluswamy as a Karta of the joint Hindu family had executed the

agreement to sell of the suit property for Rs.29 lakhs and had

received Rs.4 lakhs in advance from Beereddy Dasaratharami

Reddy, the appellant before us. K. Veluswamy, the second

respondent before us, has not entered appearance and contested

this appeal. The appeal is contested by the first respondent before

us, namely V. Manjunath, who is the son of K. Veluswamy. (For

convenience, K. Veluswamy and V. Manjunath, wherever required

have been collectively referred to the respondents).

3. On 26th November 2007, Beereddy Dasaratharmi Reddy instituted

the suit for specific performance of the agreement to sell

impleading both K. Veluswamy and V. Manjunath. The Court of

Senior Civil Judge, Hiriyur decreed the suit vide judgment dated

22nd January 2013 rejecting the defence that the agreement was a

camouflage for a loan agreement as K. Veluswamy was in need of

money for construction of a farm house. K. Veluswamy as the

Karta of the joint Hindu family property was entitled to execute the

agreement to sell, which agreement being on account of legal

necessity is valid.

4. K. Veluswamy accepted the decision. His son V. Manjunath

preferred the regular first appeal before the High Court of

Karnataka at Bengaluru and vide the judgment under challenge

dated 6th March 2021 he has succeeded. The impugned judgment,

while accepting that K. Veluswamy did execute the agreement to

sell for the suit property for Rs.29 lakhs and had received Rs.4

lakhs as advance, held that the agreement to sell is unenforceable

as the suit property belongs to the joint Hindu family

consisting of three persons, K. Veluswamy, his wife V.

Manimegala and his son V. Manjunath and, therefore, could not

have been executed without the signatures of V. Manjunath.

Relying on Pemmada Prabhakar and Others v. Youngmen’s

Vysya Association and Others,1 it was held that legal necessity

is not proved. Execution of the agreement to sell by K. Veluswamy

as a Karta of the joint Hindu family is held not established as no

issue on the aspect of authority of the Karta to execute agreement

to sell and legal necessity was framed. Consequently, it was held

that the suit must be dismissed.

5. The agreement to sell, which is an admitted document and

marked Exhibit P-1, it is accepted, was signed and executed by K.

Veluswamy and his wife V. Manimegala. P.B. Basavarajaiah,

1 (2015) 5 SCC 355


father-in-law of V. Veluswamy, had also signed the agreement to

sell. Payment of Rs. 4 lacs by Beereddy Dasaratharmi Reddy and

receipt of the said amount by K. Veluswamy as advance is also

not disputed. Remaining amount of Rs.25 lakhs was to be paid

within three months and the sale deed executed and registered.

The agreement to sell states that the subject property is a joint

Hindu family property, enjoyed jointly and that the Katha is in the

joint names. What is significant and important is the avowal by the

executants that they were in need of funds to meet the domestic

necessities and, consequently, had agreed to sell the suit

property. If any dispute arises with regard to the sale transaction, it

would be solved by the executants personally at their own risk and

cost. Lastly, if there was any loan, mortgage, revenue arrears, etc.

over the property, the same shall be cleared by the executants so

as to execute and register the sale deed in favour of Beereddy

Dasaratharami Reddy. The agreement to sell does mention that it

would be also executed by V. Manjunath, and it is a fact that it is

not signed and executed by him, but this, as discussed below,

would not nullify the rights and liabilities arising from the

agreement to sell.

6. Right of the Karta to execute agreement to sell or sale deed of a

joint Hindu family property is settled and is beyond cavil vide


several judgments of this Court including Sri Narayan Bal and

Others v. Sridhar Sutar and Others,2 wherein it has been held

that a joint Hindu family is capable of acting through its Karta or

adult member of the family in management of the joint Hindu

family property. A coparcener who has right to claim a share in the

joint Hindu family estate cannot seek injunction against the Karta

restraining him from dealing with or entering into a transaction

from sale of the joint Hindu family property, albeit post alienation

has a right to challenge the alienation if the same is not for legal

necessity or for betterment of the estate. Where a Karta has

alienated a joint Hindu family property for value either for legal

necessity or benefit of the estate it would bind the interest of all

undivided members of the family even when they are minors or

widows. There are no specific grounds that establish the existence

of legal necessity and the existence of legal necessity depends

upon facts of each case. The Karta enjoys wide discretion in his

decision over existence of legal necessity and as to in what way

such necessity can be fulfilled. The exercise of powers given the

rights of the Karta on fulfilling the requirement of legal necessity or

betterment of the estate is valid and binding on other coparceners.

7. Elucidating the position in Hindu law, this Court in Kehar Singh

(D) through Legal Representatives and Others v. Nachittar

2 (1996) 8 SCC 54


Kaur and Others3 has referred to Mulla on Hindu Law and the

concept of legal necessity to observe thus:

“20. Mulla in his classic work Hindu Law while dealing

with the right of a father to alienate any ancestral

property said in Article 254, which reads as under:

“Article 254

254. Alienation by father.— A Hindu father as

such has special powers of alienating

coparcenary property, which no other

coparcener has. In the exercise of these

powers he may:

(1) make a gift of ancestral movable property

to the extent mentioned in Article 223, and

even of ancestral immovable property to the

extent mentioned in Article 224;

(2) sell or mortgage ancestral property,

whether movable or immovable, including

the interest of his sons, grandsons and

great-grandsons therein, for the payment of

his own debt, provided the debt was an

antecedent debt, and was not incurred for

immoral or illegal purposes (Article 294).”

21. What is legal necessity was also succinctly said by

Mulla in Article 241, which reads as under:

“Article 241

241. What is legal necessity.—The following

have been held to be family necessities

within the meaning of Article 240:

(a) payment of government revenue and of

debts which are payable out of the family

property;

(b) maintenance of coparceners and of the

members of their families;

3 (2018) 14 SCC 445


(c) marriage expenses of male coparceners,

and of the daughters of coparceners;

(d) performance of the necessary funeral or

family ceremonies;

(e) costs of necessary litigation in recovering

or preserving the estate;

(f) costs of defending the head of the joint

family or any other member against a

serious criminal charge;

(g) payment of debts incurred for family

business or other necessary purpose. In the

case of a manager other than a father, it is

not enough to show merely that the debt is a

pre-existing debt;

The above are not the only indices for

concluding as to whether the alienation was

indeed for legal necessity, nor can the

enumeration of criterion for establishing legal

necessity be copious or even predictable. It

must therefore depend on the facts of each

case. When, therefore, property is sold in

order to fulfil tax obligations incurred by a

family business, such alienation can be

classified as constituting legal necessity.”

(See Hindu Law by Mulla “22nd Edition”)

xx xx xx

26. Once the factum of existence of legal necessity

stood proved, then, in our view, no co-coparcener

(son) has a right to challenge the sale made by the

karta of his family. The plaintiff being a son was one of

the co-coparceners along with his father Pritam Singh.

He had no right to challenge such sale in the light of

findings of legal necessity being recorded against him.

It was more so when the plaintiff failed to prove by any

evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the

defendants to prove the factum of existence of legal


necessity was either insufficient or irrelevant or no

evidence at all.”

8. The aforesaid being the legal position, it has to be held that

signatures of V. Manjunath, son of Karta – K. Veluswamy, on the

agreement to sell were not required. K. Veluswamy being the

Karta was entitled to execute the agreement to sell and even

alienate the suit property. Absence of signatures of V. Manjunath

would not matter and is inconsequential. As noted above, it is an

accepted case of the respondents that K. Veluswamy did receive

Rs.4 lakhs as advance from Beeredy Dasartharami Reddy, as

recorded in the agreement to sell.

9. On the question of satisfaction of the condition of legal necessity,

the stand of the respondents is contradictory, for they have

pleaded in the written statement and even before us that the joint

Hindu family was in need of funds, which shows legal necessity. In

fact, as recorded above, the need for funds is duly reflected and

so stated in the agreement to sell dated 8th December 2006 which

states that the executants were in need of funds to meet domestic

necessities and, therefore, had agreed to sell the suit property. It

is also an undisputed position that the suit property was

encumbered in favour of the State Bank of Mysore, Adivala

Branch, and the executants had informed that the dues of the

bank would be cleared to release the mortgage before the date of

registration. In Kehar Singh (supra), on the question what is legal

necessity, reference was made to Article 241 from Mulla’s Hindu

Law which states that maintenance of coparceners, family

members, marriage expenses, performance of necessary funerals

or family ceremonies, costs of necessary litigation for recovering

or preserving estate, etc. fall and have been held to be family’s

necessities. Further, the instances are not the only indices for

concluding whether the alienation was in need for legal necessity

as enumeration on what would be legal necessity is unpredictable

and would depend upon facts of each case. Thus, we are of the

opinion that the agreement to sell cannot be set aside on the

ground of absence of legal necessity.

10. Decision of this Court in Pemmada Prabhakar (supra) has no

application, being a case of intestate property inherited by wife,

three sons and three daughters as class I heirs under Section 8 of

the Hindu Succession Act and the agreement to sell was not

signed by wife, one son and three daughters and, therefore,

neither binding nor enforceable against the non-executants. The

ratio would not apply to a joint Hindu family property.


11. Omission to frame an issue as required under Order XIV Rule 1 of

the Code of Civil Procedure, 1908 does not vitiate the trial where

the parties go to trial fully knowing the rival case and lead

evidence in support of their respective contentions and to refute

contentions of the other side (See – Kannan (Dead) by LRs. and

Others v. V.S. Pandurangam (Dead) by LRs. and Others4 and

Nedunuri Kameswaramma v. Sampati Subba Rao5).

12. We are informed that during the pendency of the present appeal,

the suit property has been transferred to a third person, which

transfer would obviously be subject to and hit by the doctrine of lis

pendens. Therefore, once we set aside the impugned judgment

and restore the judgment of the trial court, the respondents would

be bound to perform their obligations under the agreement to sell

dated 8th December 2006 and execute the registered sale deed,

notwithstanding any transaction which the respondents have

executed.

13. In light of the aforesaid discussion, we allow the present appeal

and set aside the impugned judgment and decree and restore the

judgment and decree passed by the trial court. The appellant

would deposit the balance sale consideration of Rs.25 lakhs in the

4 (2007) 15 SCC 157

5 AIR 1963 SC 884


trial court within a period of eight weeks from today, which amount

once deposited would be kept in an interest bearing fixed deposit

and would be handed over/paid to K. Veluswamy, Karta of the joint

Hindu family at the time of execution of the sale deed by him in

favour of the appellant/Beereddy Dasartharami Reddy. The

appellant/Beereddy Dasartharami Reddy will also bear necessary

expenses like stamp duty, registration charges for execution of the

sale deed. Physical possession of the property would be handed

over by the respondents to the appellant/Beereddy Dasartharami

Reddy along with the execution of the sale deed, notwithstanding

that the suit property has been sold to a third person during the

pendency of the present appeal.

14. The appeal is disposed of in the above terms without any order as

to costs.

......................................J.

(M.R. SHAH)

......................................J.

(SANJIV KHANNA)

NEW DELHI;

DECEMBER 13, 2021.


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