Appeal No 515 of 1970
Appeal by special leave from the judgment and order dated the 19th February 1970 of the Allahabad High Court Lucknow Bench Lucknow in Second Appeal No 362 of 1966
GL Sanghi and RP Gupta for the Appellant
GC Mathur and CP Lal for Respondent Nos 2  3
The Judgment of Court was delivered by KOSHAL
J This is an appeal by special leave against a judgment of a learned Single Judge of the High Court of Allahabad dated 19th February 1970 reversing in a second appeal the first appellate decree passed on 1st June 1966 by the District Judge Rae Bareli in confirmation of the decree of the trial Court
The prayer made by the plaintiffs in the suit which was dismissed by the first two Courts was to the effect that a sale deed executed on 14th February 1964 Exhibit A 1 by defendant No 2 in favour of defendant No 1 in respect of a portion of a block of houses situated in Rae Bareli be cancelled and that possession of that portion be delivered to the plaintiffs who should also be awarded mesne profits
While accepting the second appeal the High Court decreed the suit except in regard to mesne profits
Most of the facts giving rise to this appeal are undisputed and may be briefly stated with reference to the following pedigree table Sheo Dularey Misra Radhika Devi Plaintiff No 1 Parmeshwar Din Mishra Defendant No 2 Gajendra Narain Sunil Plaintiff No 2 Plaintiff No 3 In the years 1916 and 1918 Sheo Dulary Misra SD Mishra for short who was a leading lawyer at Rae Bareli purchased a block of Houses in that town by means of two sale deeds Exhibits 2 and 3 both executed by one Shambhu Dayal
In the year 1931 SDMishra filed a suit against his father and brothers for a declaration 911 that he was the absolute owner of the Rae Bareli houses above A mentioned as also of a 4 annas and 9 pies share in proprietory Zamindari situated in Mohal Badri Prasad of village Tera Baraula in Pargana and District Rae Bareli
On the 29th August 1931 a decree based on a compromise Exhibit 5 was passed in that suit to the effect that SD Mishra was the exclusive owner of the Rae Bareli houses and also of a half of the salid 4 annas and 9 pies share in the Zamindari 
On the death of SD Misra in l951 his entire property was mutated in the name of defendant No 2 both in the revenue records as well as in the registers maintained by the Rae Bareli Municipal Committee
From then onwards till the date of the disputed sale deed Exhibit A I defendant No 2 was in possession of the entire property left by his father and also acted as its exclusive manager
He received compensation for some of the Zamindari property a part of which was also sold by him on the 12th January 1959 to one Imam Ali for a consideration of Rs 800 vide Exhibit A 19
In the years 1960 and 1961 defendant No 2 constructed a one storey building on a plot of land in Khurshid Bagh Lucknow where he was employed as a clerk in the Department of Health of the Government of Uttar Pradesh and where he was residing with his wife and children
The disputed sale deed Exhibit A 1 was executed by defendant No 2 on the 14th February 1964 in respect of the western portion of the said block of houses for Rs 6500 in favour of KC Kapoor defendant No 1 who is the sole appellant before us
In that sale deed defendant No 2 described himself as exclusive and complete owner of the Rae Bareli property and claimed that he was in possession and occupation thereof with powers of transfer of all kinds 
The necessity for the sale was thus described by him I am constructing a house in Mohalla Khurshed Bagh City Lucknow the lower portion whereof has already been constructed and for the construction of the upper portion whereof funds are required
This litigation started on the 17th September 1964 with the institution of a suit by the three plaintiffs
It was claimed therein that on the death of section D Misra plaintiff No 1 succeded to a half share in his property being his widow while the other half 912 was inherited by defendant No2 so however that his sons plaintiffs Nos 2 and 3 had an interest therein by birth
In other words while half of the property left by SD Mishra was claimed to belong exclusively to Radhika Devi Plaintiff No 1 in respect of the other half the assertion was that it belonged to a coparcenary consisting of defendant No 2 and his two sons
The relief of a possession of the property sold by virtue of sale deed Exhibit A l was prayed for in consequence of the cancellation of that document which was sought to be set aside for the reason that the transaction covered by it was not for any necessity of the said family
In the written statement the stand taken by defendant No 1 was that defendant No 2 was the sole owner of the entire block of houses above mentioned and had full power to alienate the same but that even if it was proved to be coparcenary property as alleged the sale would still be good as it was made for legal necessity
In this connection the contents of paragraph 15 of the written statement may be quoted here with advantage That defendant No 2 sold the house in suit for the purpose of building a more profitable and advantageous house at Lucknow and with a view to dispose of a construction which was old and in perilous condition and which was of no persent utility
Even if the house in suit is proved to be joint family property the transfer is for legal necessity by the Karta and is binding on the joint family and the plaintiffs
 Two other material pleas were put forward in paragraph 14 and 16 of the written statement and are extracted below 14
That defendant No 2 represented to the answering defendant No 1 that defendant No 2 was the sole owner of house a portion of which is the subject matter of dispute and in fact he has all along been acting as sole owner of the properties left by his father
The answering defendant No I also made diligent and reasonable enquiries about the right title and interest of defendant No 2 and his sole power to transfer it and as such the answering defendant is a transferee in good faith for consideration and without notice 16
That defendant No 2 executed the sale deed in favour of the answering defendant with the active consent and 913 approval of plaintiff No I and plaintiff No 1 is estopped from asserting her right against it
 Statements of counsel for parties were recorded by the trial court on the 27th April 1965 when it framed 8 issues of which issues nos
I to 3 S and 7 were 1
Whether plaintiffs and defendant No 2 formed a joint family  If so who was the Karta of the family  2
Whether plaintiffs Nos 2 and 3 have interest in the house in suit by birth  3
Whether defendant No 2 had a legal necessity to sell the house  If so its effect  5
Whether defendant No I is a transferee for value in good faith and is entitled to protection of Section 41 of the Transfer of Property Act  7
Whether the suit by plaintiff No 1 is barred by estoppel  Statements of learned counsel for the parties were again re corded on 28th May 1965 and 31st May 1965
On behalf of defendant No 1 a part of his case was stated like this E Defendant is a purchaser for value in good faith and without notice
In any view of the case the disputed portion is not more than the share of Parmeshwar Din and the 
alienation is valid and can not be impeached by the plain tiffs
Disputed portion was sold with the active consent and approval of plaintiff No l and she is estopped from challenging the transaction 5
In its jugment the trial court held that all the three plaintiffs and defendant No 2 formed a joint Hindu family of which defendant No 2 was the Karta and that plaintiffs Nos 2 and 3 acquired an interest by birth in the property left by their grand father
In deciding issue No 3 the trial court took note of the following facts a The joint Hindu family consisting of the three plaintiffs and defendant No 2 received Compensation for the Zamindari 914 b The family had income from the Zamindari
c The family derived rent from the said block of houses
d SD Misra was a successful lawyer which circums tance made it probable that he had left behind some cash in addition to other property
e on 12th January 1959 defendant No 2 received Rs 800 as consideration for the sale covered by Exhibit A 19
f Sanction for plan of the building of the Lucknow house Exhibit A 21 was accorded by the Lucknow Municipality on 28th June 1960 and the building was completed in 1961
g There is no evidence to show that defendant No 2 had income of his own from which he could save enough money to be spent on the said building h Plalntiff No 1 who was actively conducting the case on behalf of the plaintiffs and defendant No 2 had both stayed away from the witness box
Taking all these facts into consideration the trial court concluded that the Lucknow house was the property of the said joint Hindu family
It went on to point out that the disputed sale was an act of good management in view of the following circumstances i The portion of the block of houses sold through exhibit A I was in a dilapidated condition and on 14th July 1964 ie less than 5 months after the sale the municipal authorities isssued a notice to defendant Nol pointing out that the building purchased by him was in a dangerous condition and requiring him to demolish it within 3 days so that defendant No 2 was under  an obligation to pull down the building and either leave the site underneath un built which would have meant a loss of some income to the family or to construct a new building thereon
ii Construction of a building in Lucknow would have been more rewarding income wise than erecting one at Rae Bareli
915 iiiDefendant No 2 was employed at Lucknow and it was A in the interest of the family to put on a second storey in the house there The trial court concluded that the sale was in the circumtances above mentioned for the benefit of the family and therefore for legal necessity
13 Issue No 5 was decided by the trial court against defendant No I for the following reasons a Defendant No I knew that the property sold to him had descended from SD Misra who had left behind a widow and a son so that defendant No I could not be regarded as a purchaser without notice of the fact that the plaintiffs had an interest in the house
b Defendant No 1 did not consult any lawyer to make sure that defendant No 2 was the sole owner of the property sold as asserted by the latter
The trial court therefore held that defendant No I was not entitled to any protection under section 41 of the Transfer of Property Act
In relation to issue No 7 the trial court remarked that it was the duty of defendant No I to give the details of the mis representation constituting estoppel in the written statement which was not done so that the evidence on the point could not be looked into Issue No 7 was thus decided against defendant No 1
Legal necessity for the disputed sale having been found by the trial court to be established it dismissed the suit with costs
It is also necessary to recount at some length the findings arrived at by the learned District Judge in appeal
The conclusions reached by the trial court that the plaintiffs and defendant No 2  formed a joint Hindu family and that the said block of houses belonged to that family were not challenged before him and the main contest in the course of the first appeal embraced points of legal necessity and estoppel as also the applicability of section 41 of the Transfer of Property Act to the facts of the case
Taking up the last point first the learned District Judge decided it against defendant No I for the following two reasons 916 a Defendant No I had had notice that the building in dispute originally belonged to SD Misra and that the latter died leaving behind a widow a son and a grand son
Thus defendant No 2 was posted with the know ledge that at the time of the sale in his favour persons other than defendant No 2 had interest in the property in dispute
b Plaintiffs Nos
2 and 3 were minors on the date of the sale and even at the time of the institution of the suit and could not by reason of their minority be deemed to have consented to the ostensible ownership of the property vesting in their father
On the question of sextuple the learned District Judge discussed in detail the evidence produced before the trial court and concluded that on 22nd January 1964 when a sum of Rs 1000 was paid by defendant No I to defendant No 2 as earnest money through receipts Exhibit A 26 plaintiff No I gave her consent to her transaction of sale in the presence of defendant No I as well as that of Radha Krishan DW S and Gopal Nath Chopra DW 6 both of whom were attesting witnesses to that receipt
He went on to hold that the trial court was in error when it refused to look into the evidence on the point with the observation that the particulars of the consent of plaintiff No I were not given in the pleadings
The learned District Judge was firmly of the opinion that the statement in para 16 of the written statement to the effect that the sale had taken place with the active consent and approval of plaintiff No I was enough to raise the question of estoppel and that it was not necessary for defendant No I to further mention in his peladings the particulars of such consent or the details of the evidence by which the same was to be proved
The learned District Judge concluded that by reason of the consent given by plaintiff No I to the sale she was estopped from attacking disputed sale deed
On the question of legal necessity the District Judge took note of all those facts which the trial court had taken into consideration as also of the following additional circumstances a Defendant No 2 was the only adult male member of the family at the time of the sale
He had throughout 917 been managing the property of his father and was the Karta of the joint Hindu family aforesaid
b The sale had come about with the consent of plaintiff No 1 who was the only other adult member of the family
B In the result the learned District Judge upheld the finding of the trial court that the Lucknow house belonged to the joint Hindu family
He further held for more or less the same reasons as had weighed with the trial court in that behalf that the sale was an act of prudence on the part of defendant No 2 who had wisely sold a dilapidated building and instead of pulling it down and incurring expense over its re construction had raised money for the purpose of building the first floor of the new house at Lucknow which was a big city as compared to the small and sleepy town of Rae Bareli
On the above findings the first appeal was dismissed with costs
Before the High Court it was conceded on behalf of defendant No I that the widow of SD Misra had inherited half of his property by reason of the provisions of section 3 of the Hindu Women s Right to Property Act 1937 for short the 1937 Act that she had become the full owner of that half share on the commencement of the Hindu Succession Act in 1956 hereinafter referred to as the 1956 Act and that she was therefore not bound by any sale of her share effected by her son unless she was estopped from challenging it
The learned Single Judge therefore at once took up the question of estoppel reliance in support of which was placed on behalf of defendant No l on a portion of his own testimony as W 3 which when freely translated would read thus Parmeshwar Din told his mother that a portion of the Rae Bareli house was in ruins and yielded low rent that the family ham log were residing at Lucknow and that he wanted to sell a portion of the Rae Bareli house and make the Lucknow house two storeyed which would result in a better rent yield and would also provide comfort for residence of the family
Then Parmeshwar Din s mother said It is your thing do as you wish
 918 The learned Single Judge was of the opinion that this statement could not estop plaintiff No I from challenging the sale in so far as her share in the disputed house was concerned
His reasons were The above cited statement of respondent No 1 defendant No I does not indicate if the portion which was being actually sold was then specified to appellant No I plaintiff No 1 by respondent No 2 defendant No 2
So if in these circumstances she did not resist the proposal saying that Parmeshwar Din was at liberty to do as he chose since it was his property it can by no means be construed to mean that she thereby readily agreed even for the sale of her share by her son
 The question of legal necessity was also determined by the learned Single Judge against defendant No 1 with the following findings a There was no pleading by defendant No 1 in his written statement to the effect that the house at Lucknow was the property of the said joint Hindu family
Besides in his deposition as DW 3 defendant No 1 had himself stated that to his knowledge Parmeshwar Din was the sole owner of that house
b Merely because SD Misra possessed property and cash at the time of his death and that property continued to yield some income thereafter did not furnish reasons enough for the Court to presume that the Lucknow house belonged to the joint Hindu family
A presumption to that effect could only be raised if it was shown that there was sufficient nucleus for the acquisition of that house
In view of the above findings the learned Single Judge cancelled sale deed Exhibit A l and accepting the appeal passed a decree for possession of the disputed property in favour of the plaintiffs
After hearing learned counsel for the parties at great length we have no hesitation in recording our disagreement with the High Court on the findings reached by it in relation to both the 919 points canvassed before it namely those of estoppel and legal A necessity and are fully satisfied that it stepped outside the limits of its jurisdiction when it interfered with the conclusions of the fact arrived at by the learned District Judge on the basis of fully acceptable evidence and a correct appreciation thereof
Before we proceed to detail our reasons for differing with the view expressed by the High Court we would like to advert to that aspect of the case which concerns the rights of plaintiff No I in the property inherited by her husband
The trial Court acted on the assumption that the entire property left by SD Misra on his death vested in the joint Hindu family consisting of his widow son and grand sons
No challenge to this assumption was made before the learned District Judge and the case proceeded on the basis that it was correct
B fore the High Court however the assumption was assailed and as already stated it was conceded on behalf of defendant No I that plaintiff No I succeeded to a life estate in a half share in the property of her husband in pursuance of the provisions of section 3 of the 1937 Act and that such an estate ripened into absolute ownership on the enforcement of the 1956 Act
This concession in our opinion could be said to have been correctly made only on the assumptions I that SD Misra died intestate or that if he left a will he devised a half share in the disputed house to plaintiff No I and 2 that the share to which plaintiff No I succeeded was not relinquished in favour of defendant No 2 or otherwise transferred to him by her right up to the time when the disputed sale took place
We shall now take up the question of estoppel
Plaintiffs Nos 2 and 3 being minors that question does not arise in their case and it is only in relation to the half share of plaintiff No I in the disputed property that it calls for a decision
In this connection the following facts which are undisputed may be taken note of a on SDMisra s death his entire property was mutated in the name of his son defendant No 2 to the exclusion of the former s widow Plaintiff No 1
b Right up to the date of the disputed sale that property was managed exclusively by defendant No 2
c No objection to the exclusion of her name from the records of the revenue department or of the municipal 920 committee or from the management was ever preferred by plaintiff No 1 who fully acquiesced in such exclusion all through
d Defendant No 2 alone received compensation for the Zamindari and sold a portion thereof as sole owner vide exhibit A 19 again without any objection on the part of plaintiff No 1
e When negotiations for the disputed sale were initiated defendant No I enquired from defendant No 2 as to how the latter had acquired full ownership of the  property in dispute
The reply of defendant No 2 as contained in his letter from Lucknow dated 14th January 1964 exhibit A 25 was Regarding our talks about the sale of my house at Station Road Rae Bareli and regarding your enquiry about the title to the said house I have to inform you that I am the absolute owner of the portion of house proposed to be sold I own all responsibility and give you word of honour that there is absolutely no dispute about my title to the portion proposed to be sold and you should have no hesitation on that score Further I may add that I realize the rent of the shops which you can enquire from the tenants Presumably defendant No 1 was quite satisfied with this reply and asked defendant No 2 to furnish copies of the municipal records which were shown to defendant No 1 on the 22nd January 1964 at the Lucknow residence of defendant No 2
f According to the testimony of defendant No 1 as DW 3 and of the two witnesses Radha Krishan DW 5 and Gopal Nath Chopra DW 6 who attested receipt exhibit A 26 it was at that stage that defendant No I told his mother about the proposed sale and she consented thereto
In the words of defendant No 2 921 she declared It is your thing do as you wish The A evidence of these three witnesses was not challenged during the course of their cross examination
These facts would conclusively show that by declaring in the presence of defendant No 1 that the property belonged to the defendant No 2 and that he was at liberty to deal with it as he wished plaintiff No I represented to defendant No I that her son was the sole owner of the property and that she had nothing to do with it
Her declaration is therefore a clincher on the point of estoppel and we find it impossible to agree with the learned Single Judge when he says that the declaration did not mean that defendant No 2 had the permission of plaintiff No I to deal with the latter s share of the property
In our opinion the declaration does not suffer from any such ambiguity as the learned Single Judge has read into
In giving the details of the proposed sale the son had not told the mother that he was selling only his own half share in that part of the block of houses situated in Rae Bareli which was proposed to l be sold
He said in clear terms that a portion of the Rae Bareli house was to be sold and his mother declared that he was the sole arbiter in the matter of the disposal of the property
There was no proposal to sell only defendant No 2 s undivided half share nor did any question arise of either defendant No I purchasing it or plaintiff No I being consulted about it
In the absence of any qualifying words limiting the proposed sale to such a share the lady must be taken to have understood the statement made to her by her son as carrying its plain meaning ie that the sale was to be of the entire portion chosen for the purpose and her consent must be construed accordingly
Learned counsel for the plaintiff vehemently argued that even if the declaration made by plaintiff No 1 be interpreted as we have done it would create no estoppel against her inasmuch as defendant No 1 had not acted on it but had purchased the property on the strength of the representations made to him by defendant No 1
G Now it is true that defendant No I had made enquiries regarding the title of defendant No 2 to the property in dispute and the latter had made an unequivocal representation that he alone was the owner thereof but then it was only after the lady had been consulted and had told her son to go ahead with what he thought proper as he was the owner of the property that receipt exhibit A 26 was executed
Till then defendant No I was not fully satisfied about 922 the title of defendant No 2 and had not only raised the question with defendant No I at Lucknow but even after the assurance given by the latter in communication exhibit A 25 insisted on the municipal records being produced for his inspection
The inquiry into the title was therefore very much in progress when defendant No 2 consulted his mother in the presence of defendant No 1
This was presumably done to ally the lurking suspicion in the mind of defendant No 2 as to the title to the entire property vesting in defendant No 2 It was contended on behalf of the plaintiffs that the representation made by the lady could not have been taken at its face value by any prudent purchaser in view of the fact that one half of the property left by SD Misra had admittedly devolved on plaintiff No 1
This contention suffers from two important infirmities
Under section 3 of the 1937 Act plaintiff No I would have succeeded to a half share only if SD Misra had died intestate
So the question would be whether or not SD Misra left a will
The concession made before the High Court on the point of inheritence of a half share by plaintiff No I was obviously based not on any facts within the knowledge of defendant No 1 but on the circumstance that nobody had talked of any will by SD Misra
Whether or not such a will was made was a fact specially within the knowledge of plaintiff No I and as stated earlier that she remained absent from the witness box so that the Court is left in the dark as to what was the actual state of affairs
The onus of proof of the allegation that she was the owner of a half share in the property at the time of the sale was on her and she was duty bound to depose to facts which would make section 3 aforesaid applicable to her case
Her failure to depose to the existence thereof must result in a finding that she has failed to prove the issue
Again even if it be assumed that plaintiff No I succeeded to a half share in the property of SD Misra there was no impediment in the way of her relinquishing that share in favour of her son either immediately after her husband s death or at any other point of time prior to the disputed sale
This aspect of the matter cannot be lost sight of in view of the fact that on section D Misra s death all his property was mutated in favour of his son to the exclusion of plaintiff No 1 and was all along being dealt with by him as its sole and absolute owner without any objection whatsover having been raised by her at any point of time to such exclusion or dealing
923 In the above situation defendant No I was fully justified in A accepting her word on the point of ownership the said section 3 not withstanding
The above discussion of the evidence has been entered into by us merely to show that the finding given by the learned District Judge on the point of estoppel was eminently reasonable and that the short ground on which the High Court turned the tables on defendant No I was untenable
That finding of the District Judge being a finding of fact and being based on good evidence it was not open to the High Court to interfere with it in a second appeal
Before parting with the question of estoppel we may briefly notice another contention put forward on behalf of the plaintiffs whose learned counsel urged that no plea of estoppel could be countenanced for the reason that no proper foundation was laid for it in the pleadings
A combined reading of paragraphs 14 and 16 of the written statement hower furnishes a complete answer to the contention
The representation said to have been made by plaintiff No I is set out in paragraph 14 while the plea that she was estopped from contesting the sale is taken in paragraph 16
It is true that the plea last mentioned is linked with the active consent and approval of plaintiff No I   and not in so many words with the said representation
It can also not be disputed that defendant No I did not specifically state that he purchased the disputed property in the belief that the representation was true and that he would not have entered into the transaction but for that belief
Thus undoubtedly the written statement is inartistically drafted and leaves much to be desired but then pleadings are not to be construed in such a hypertechnical manner and what is to be seen is whether the allegations made in paragraphs 14 and 16 gave sufficient notice to the plaintiffs of what case they had to meet
In this connection we may refer to the significant fact that no objection to the lack of particulars was taken at the stage when issues were framed or later when statements of parties  counsel were recorded on a subsequent occasion or during the course of arguments addressed to the trial Court the District Judge and the High Court
even though the issue of estoppel was hotly contested before all three of them
All these circumstances unmistakably indicate that the case put forward by defendant No I was throughout understood by the plaintiffs to be that it was the belief induced in him by the representation of plaintiff No l which made him accept the title of defendant No 2 as bein exclusive
In this view of the matter it is too late in the day for the plaintiffs 924 to raise the contention under consideration and we have no hesitation in rejecting it as untenable
We may now attend to the controversy about the legal necessity for the disputed sale
The contest on the point is restricted to that half share of the property sold which belonged to the coparcenary consisting of the son and grand sons of section D Misra
In this connection the High Court observed that not only defendant No I did not plead in his written statement that the Lucknow house was the property of the coparcenary but that he also stated in the witness box as DW 3 that to his knowledge defendant No I was the sole owner of that house
We are clearly of the opinion that the High Court erred in taking either of these circumstances as a minus point for defendant No 1
In so far as the written statement is concerned it contains a definite plea in para 15 to the effect that if the disputed property is proved to joint be Hindu family property its transfer was made by the Karta for legal necessity so that it was binding on the family
Was it then incumbent on defendant No I to further plead how he propsed to prove the legal necessity This question was pointedly posed to learned counsel for the plaintiffs during the course of arguments and although his answer was in the affirmative he could quote neither law nor precedent in support of the same
It may also be pointed out that no objection by the plaintiffs was ever taken at any stage of the trial to any lack of particulars of the legal necessity set up by defendant No I in paragraph 15 of the written statement
On the other hand they were fully posted about what case they have to meet on the point by reason of the contents of that paragraph itself in which it was specifically asserted that the disputed house was sold by defendant No 2 for the purpose of building a more profitable and advantageous house at Lucknow and with a view to dispose of a construction which was old and in perilous condition and which was of no present utility In view of this averment it was fully open to defendant No 1 to prove by evidence that putting up a second storey in the Lucknow house constituted legal necessity and in the process to establish that the Lucknow house was owned by the said coparcenary
Again no objection was taken at the evidence stage to the right of defendant No I to show that the Lucknow house was so owned and thereby to prove the existence of legal necessity for the sale
No fault can thus be found with the case of defendant No l on the ground of his failure to take a specific plea in the written statement abount the ownership of that house vesting in the coparcenary
925 Nor was the High Court right in putting the construction that A it did on the testimony of defendant No I as DW 3 to the effect that to his knowledge defendant No 2 was the sole owner of the Lucknow house
Obviously all that he meant was that according to such knowledge as he had the Lucknow house vested in the exclusive ownership of defendant No 2 and that knowledge in the circumstances of the case could be no more than a belief arising from what he was told by defendant No 2 who had been at pains to stake his claim to the exclusive ownership of all the property under his control including the property left by his father
In this connection we cannot lose sight of the fact that defendant No 1 was a total stranger to the family of the plaintiffs and in the very nature of things could not have had any personal knowledge referable to the actual manner in and the precise source from which either the Lucknow house or for that matter the Rae Bareli property was acquired such manner and source being within the special knowledge of plaintiff No I and defendant No 2 only
That part of the deposition of defendant No I which the High Court has pressed into service against him cannot therefore form the basis of solution to the question of the ownership of the property
In the present case both plaintiff No l and defendant No 2 have stayed away from the witness box and have thus deprived the Court of the only real evidence which could throw light on the source of the consideration paid for the purchase of the Luck now house
There may be some force in the argument that no duty was cast upon defendant No 2 to appear as a witness in as much as he was not a contesting party but than such an excuse is not open to plaintiff No 1 who was actively contesting the case in the trial Court on behalf of herself and her two grand children
It is in the light of this significant circumstance that the Court must decide whether or not defendant No l has been able to discharge the burden of proving that the Lucknow house was purchased with joint Hindu family funds
This important aspect of the matter was completely lost on the High Court although it was an unassailable ground when it formulated the proposition that before a presumption could be raised that a property acquired by a member of a joint Hindu family could be regarded as the property of the family it must be shown that the family owned other property which could be regarded as a nucleus providing a sufficient source for the later acquisition
Furthermore in assessing the evidence on that point the High Court referred only to two facts namely that SD Misra left immovable property and cash at the time of his death and that 926 property continued to yield some income thereafter but paid no heed to at least three other important circumstances which had been listed by the trial court in support of the finding that a sufficient nucleus for the purchase had been proved
Those circumstances are a The family received compensation for the Zamindari
b on 12th January 1959 defendant No 2 received Rs 800 as consideration for the sale covered by exhibit A l9
c No evidence had been produced to show that defendant No 2 had income of his own from which he could have saved enough money to be spent on the Lucknow building
We may add that there is definite evidence in the form of exhibit A 99 to the effect that in 1965 the family of defendant No 2 consisted of nine souls and that he was then holding a subordinate position in the office of the Director of Health Service U P at Lucknow with a salary of no more than Rs 240 per mensem
It goes without saying that his salary was to meagre to have sufficed for the maintenance of the family and that any savings therefrom were out of question
Although each of the facts just above taken note of when considered in isolation may not enable the Court to raise a presumption of the sufficiency of the requisite nucleus collectively they constitute a formidable array and practically a clincher in favour of such a presumption especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No 2 had any source of income of his own other then his salary
And then the failure referred to above of plaintiff No I to step into the witness box is enough for the Court to raise another presumption namely that her deposition would not have supported the plaintiffs  case
The onus of proof of the issue on the defendant was therefore very light and stood amply discharged by the facts noted in that behalf by the trial court with whose finding on the point the first appellate court concurred
No case at all was thus made out for interference by the High Court with that finding
The High Court did not express any dissent from the conclusion concurrently reached by the trial court and the learned 927 District Judge that the disputed sale constituted an act of prudence A on the part of defendant No 2 and was on that account for the benefit of the family
We find ourselves in full agreement with that conclusion which too is based on fully reliable evidence and follows logically therefrom as also with the reasons given by the two courts in support thereof
However we may point to another significant factor which lends strength to that conclusion the same being that defendant No 2 was not only the Karta of the family and its sole adult male member at the time of the sale but was also the father of the only other two coparceners for whom he must naturally be having great affection and whose interests he would surely protect and promote rather than jeopardise there being no allegation by the plaintiffs that he was a profligate or had other reason to act to their detriment
The Lucknow house being the property of the joint Hindu family consisting of defendant No 2 and his sons and the disputed sale being an act of good management the latter must be held to be justified by legal necessity which expression as pointed out in Nagindas Maneklal and others vs Mahomed Yusuf Mitchella1 is not to be strictly construed
In that case the facts were very similar to those obtaining here and may be briefly recapitulated
The joint Hindu family had serveral houses one of which was in such a dilapidated condition that the Municipality required it to be pulled down
The adult coparceners contracted to sell it to a third person
The joint family was in fairly good circumstances and it was not necessary to sell the house which however could not be used by the family for residence and would not have fetched any rent
In a suit for specific performance of the contract to sell instituted by the purchaser the minor coparceners contended that the contract did not affect their interest in the absence of necessity for the sale
In repelling the contention Shah J who delivered the leading judgment of the Division Bench referred to the manner in which the expression kutumbarthe had been construed by Vijnanesvara in the Mitakshara and observed The expression used must be interpreted with due regard to the conditions of modern life
I am not at all sure that Vijnanesvara intended to curtail the scope of the word kutumbarthe while explaining it
I do not see any reason why a restricted interpretation should be placed upon the word necessity  so as to exclude a case like the present in 928 which defendants Nos
I and 2 on all the facts proved properly and wisely decided to get rid of the property which was in such a state as to be a burden to the family
I think that the facts of the case fairly satisfy the test Fawcett J who agreed with these observations added a separate short note of his own and relied upon the following passage in Hunoomanpersaud Pandey vs Mussumat Babooee Munraj Koonweree1 But where in the particular instance the charge is one that a prudent owner would make in order to benefit the estate the bona fide lender is No affected by the precedent mismanagement of the estate
The actual pressure on the estate the danger to be averted or the benefit to be conferred upon it in the particular instance is the thing to be rearded Emphasis supplied Although these remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical
The perimeters of the expression kutumbarthe as interpreted in Nagindas s case supra which meets with our unqualified approval fully embrace the facts of the present case in so far as legal necessity for the disputed sale is concerned
In the result the appeal succeeds and is accepted
The judgment impuged before us is set aside and that of the District Judge restored
There will be no order as to costs of the pro ccedings in this Court
SR Appeal allowed


Summary:
Estoppel by conduct and construction or pleadings in the absence of an application under order Xl CPC Sale for legal necessity of joint Hindu family property Kutumbarthe explained
Sheo Dularey Misra in terms of a compromise decree dated 29th August 1931 was declared the exclusive owner of a block of houses situated in Rae Bareli and also one half of 4 annas and 9 pies share in a Zamindari
He died in 1951 leaving his widow his son Parmeshwar Din Misra and grand sons Gajendra Narain and Sunil
His entire property was then mutated in the name of his son Parmeshwar Din Misra both in the revenue records as well as in the registers maintained by the Rae Bareli Municipal Committee
From then onwards Parmeshwar Din Misra was in possession of the entire property left by his father and also acted as its exclusive manager
He received compensation for some of the zamindari property a part of which was also sold by him on 12th January 1959 for a consideration of Rs 800
In the year 1960 and 1961 he constructed a one storey building on a plot of land in Khurshid Bagh Lucknow where he was employed and residing with his wife and children
On 14th February 1964 he sold the western portion of the block of houses purchased by his late father to the appellant vide sale deed Exhibit A l
In that sale deed he described himself as exclusive and complete owner of the Rae Bareli property and claimed that he was in possession and occupation thereof with powers of transfer of all kinds 
The necessity for the sale was thus described by him I am constructing a house in Mohalla Khurshed Bagh City Lucknow the lower portion whereof has already been constructed and for the construction of the upper portion whereof funds are required
 On 17 9 1964 his mother Plaintiff No 1 and his two sons Plaintiff Nos 2  3 instituted a suit claiming the share in the said property and to have the 908 sale covered by Exhibit A l set aside on the ground that the transaction was not for any necessity of the family
The trial court dismissed the suit holding i all the three plaintiffs and defendant No 2 formed a joint Hindu family of which defendant No 2 was the karta and his two sons Plaintiffs 2  3 acquired an interest by birth in the property left by their grand father ii the Lucknow house was the property of the said joint Hindu family iii the disputed sale was and act of good management and was in the circumstances for the benefit of the family and therefore for legal necessity iv the vendee appellant was not entitled to any protection under section 41 of the Transfer of Property Act and v it was the duty of defendant No I to give the details of misrepresentation constituting estoppel in the written statement which was not done so that the evidence on the point could not be looked into
The first appeal before the District Judge failed
But the High Court accepting a second appeal cancelled sale deed Exhibit A l and passed a decree for possession of the disputed property in favour of the plaintiffs
Hence the appeal after obtaining spccial leave
Allowing the appeal the Court  HELD 1 1 The findings given by the first appellate court on the point of estoppel was eminently reasonable and the short ground on which the High Court turned the tables on the appellant was untenable
That finding being a finding of fact and being based on good evidence it was not open to the High Court to interfere with it in a second appeal
923 B C 1 2
Proper foundation was laid for the plea of estoppel in the pleadings
A combined reading of paragraphs 14 and 16 of the written statement gave sufficient notice to the plaintiffs of what case they had to meet
The representation said to have been made by plaintiff No 1 is set out in paragraph 14 while the plea that she was estopped from contesting the sale is taken in paragraph 16
Undoubtedly the written statement is inartistically drafted and leaves much to be desired but then pleadings are not to be construed in a hypertechnical manner
In fact no objection to the lack of particulars was taken at the stage when issues were framed or later when statements of parties  counsel were recorded on a subsequent occasion or during the course of arguments addressed to the trial court the District Judge and the High Court even though the issue of estoppel was hotly contested before all three of them
All these circumstances unmistakably indicate that the case put forward by defendant No 1 was throughout understood by the plaintiff to be that it was the belief induced in him by the representation of plaintiff No I which made him accept the title of defendant No 2 as being exclusive
923 C H l 3
The declaration of plaintiff No 1 in the presence of the appellant that the property belonged to her son and that he was at liberty to deal with it as he liked does not suffer from any ambiguity and makes it clear that she had nothing to do with the property
921 A B 1 4
The onus of proof of the allegation that she was the owner of a half share in the property at the time of the sale was on her and she was duty bound to depose to facts which would make section 3 of the Hindu Women s Right to Property Act 1937 applicable to her case
Her failure to depose to the existence thereof must result in a finding that she has failed to prove the issue
922 E F 909 1 5
In view of the fact that on Shiv Dularey Misra s death all his property was mutated in favour of his son to the exclusion of plaintiff No I and was all along being dealt with by him as its sole and absolute owner without any objection whatsoever having been raised by her at any point of time to such conclusion or dealing leads to the presumption that plaintiff No I had relinquished her share in favour r of her son either immediately after her husband s death or at any other point of time prior to the disputed sale
In the above situation the appellant was fully justified in accepting her word on the point of ownership the said section 3 notwithstanding
922 G H 923 A 2 1
That the disputed sale was for legal necessity is clear from the following a The written statement of the appellant contains a definite plea in para 15 to the effect that if the disputed house is proved to be joint Hindu family property its transfer was made by the karta for legal necessity so that it was binding on the family b no objection by the plaintiffs was taken at any stage of the trial to any lack of particulars of the legal necessity in the plea so set up c in the said para it was specifically asserted that the disputed house was sold by defendant No 2 for the purpose of building a more profitable and advantageous house at Lucknow with a view to dispose of a construction which was old and in perilous condition and which was of no present utility
 The appellant was therefore had the right to let in evidence that putting up a second storey in 1 the Lucknow house constituted legal necessity
Nor was any on objection taken at the evidence stage to such right d the appellant was a total stranger to the family of the plaintiffs and in the very nature of things could not have had any personal knowledge referable to the actual manner in and the precise source from which either the Lucknow house or for that matter the Rae Bareli property was acquired such manner and source being within the special knowledge of plaintiff No 1 and her son defendant No 2 both of whom had stayed away from the witness box and had thus deprived the Court of the only real evidence which could throw light on the source of the consideration paid for the purchase of Lucknow house e the salary of defendant No 2 which was no more than Rs 240 per mensem was too meagre to have sufficed for the maintenance of his family and any savings therefrom were out of question and f defendant No 2 was not only the karta of the family and its sole adult male member at the time of the sale but was also the father of the only other two copartners for whom he must naturally be having great affection and whose interests he would surely protect and promote rather than jeopardise there being no allegation by the plaintiffs that he was a profligate or had other reason to act to their detriment
924 C H 925 A E G H 926 A D E 927 B C 2 2
The Lucknow house being the property of the joint Hindu family consisting of defendant No 2 and his sons and the disputed sale being an act G of good management the sale is Kutumbarthe and justified by legal necessity
927 C D Nagindas Maneklal and others vs Mohomed Yusuf Mitchella ILR 1922 46 Bombay 312 approved and applied
Hunoomanpersaud Pandey vs Mussumat Babooee Munraj Koonweree 1856 6 Moo
IA 393 referred to 910