( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 287 OF 1989 DISTRICT : BEED 1. Suryakant s/o. Manikrao Deshmukh .. Appellants Age. 20 years, Occ. Agri., [original and Education, R/o. Deodhi, plaintiff Tq. Majalgaon, Dist. Beed. Nos. 1 to 4] 2. Deelip s/o. Manikrao Deshmukh, 21 years, Occ. and r/o. As above. 3. Vishwambhar s/o. Manikrao Deshmukh, Age. 17 years, minor, u/g. Of real mother Lilawati w/o. Manikrao Deshmukh, Age. 38 years, Occ. Agriculture and Household, R/o. Deodhi, Tq. Majalgaon, Dist. Beed. 4. Lilawati w/i. Manikrao Deshmukh Age. 38 years, Occ. Agri., and Household, R/o. As above. Versus 1. Mahavir s/o. Sahebrao Maske .. Respondents Age. 25 years, Occ. Agriculture, [original R/o. Bahegaon, Tal. Majalgaon, defendant Dist. Beed. Nos. 1 & 2] 2. Manikrao s/o. Deorao Deshmukh Age. 45 years, Occ. Agriculture, R/o. Deodhi, Tal. Majalgaon, Dist. Beed. ( 2 ) Shri M.K. Deshpande h/f. Shri G.K. Naik Thigale, Advocate for the appellants. Shri S.S. Choudhari, Advocate for the respondent No.1. CORAM : P.R. BORKAR,J. RESERVED ON : 23.03.2010 PRONOUNCED ON : 29.03.2010 J U D G M E N T :- 1. This appeal is filed by the original plaintiffs whose suit bearing Regular Civil Suit No. 84 of 1980 for partition and declaration that sale-deed executed by defendant No.1 (respondent No.2) in favour of defendant No. 2 (respondent No.1) is not binding on the plaintiffs. By judgment and order dated 27th April, 1984, the Civil Judge, Junior Division, Majalgaon, decreed the suit. Said judgment and decree was reversed by the Additional District Judge, Beed, in Regular Civil Appeal No. 177 of 1984 decided on 18th February, 1989 and the suit was dismissed. 2. Brief facts giving rise to this appeal may be ( 3 ) stated as below :- . Appellant No.4 - Lilawati is mother of appellant Nos. 1 to 3 and wife of respondent No.2 Manikrao, who was original defendant No.1. Appellant No.1 Suryakant was of 20 years of age, appellant No.2 Deelip was 18 years of age and appellant No. 3 Vishwambar was 14 years of age when the suit was filed on 5th February, 1980. The suit was filed in respect of Survey No. 72 (Gat No. 209), admeasuring 23 acres 21 gunthas situated at village Deodhi, Tal. Majalgaon. It was an ancestral land. It is averred that without any legal necessity respondent No.2 sold said land to respondent No.1 for Rs. 11,000/- by sale-deed executed on 6th February, 1968. In the circumstances, according to the appellants/plaintiffs the sale-deed is not binding on them and they are entitled to get partition of said land and separate possession of their share. 3. Respondent No.2 Manikrao who was original defendant No.1 did not file written statement. Ultimately, the suit proceeded ex-parte against him. It is respondent No.1 Mahavir who was original defendant No. 2 and who was ( 4 ) purchaser, who contested the suit and filed written statement at Exh. 21. It is stated by respondent No.1 that this is collusive suit filed by appellants and respondent No.2. Earlier respondent No.2 instigated one Ismail Dulabhai to file Regular Civil Suit No. 153 of 1976 for permanent injunction claiming himself to be tenant of the suit and prayed for injunction. However, he failed to obtain interim relief and as such failed to achieve object of dispossessing respondent No.1 from the suit land and thereafter present suit was filed by wife of respondent No.2 in collusion with major son and in the name of minor son. It is further stated that respondent No.2 sold land for Rs. 11,000/- for legal necessities. Three necessities are stated viz. (1) there were family debts and necessity of redeeming property mortgaged (2) for educational expenses of children of respondent No.2 and (3) for meeting expenses and costs of litigation that was going on between respondent No.2 and his mother and sister in respect of immovable property. 4. The Trial Court held that respondent No.1 purchaser failed to prove that the sale was for legal necessity and as such he held that sale-deed was not binding on the plaintiffs ( 5 ) and decreed the suit. In appeal, the learned Additional District Judge held that respondent No.1 has discharged burden of proving legal necessity; the sale was binding on the plaintiffs; and as such he reversed the finding of the Trial Court, allowed the appeal and set aside the decree passed by the Trial Court and dismissed the suit. It is this judgment and decree, which is challenged in this second appeal. 5. As per order passed on 21.11.1989 the appeal is admitted on the substantial questions of law raised in ground Nos. 2,4,6,8 and 11 of the appeal memo and to put them succinctly, the following substantial question of law is framed :- “Whether the District Court was justified in reversing finding of the Trial Court that the sale was not for legal necessity and thereby holding that the sale-deed was binding on the present appellants?” 6. Both sides cited several authorities. So far as appreciation of evidence is concerned, both the Trial Court and the First Appellate Court have concurrently held that the ( 6 ) sons of appellant No.4 and respondent No.2 were in primary school and their education expenses would not have been very high and therefore that was not a legal necessity for education. 7. However, the learned Additional District Judge held that there is evidence to prove legal necessity of meeting expenses/costs of litigation, so also for meeting the family debts and redeeming the property. So far as expenses of litigation are concerned, it is observed by the Trial Court that Manoramabai the mother of Ambadas and respondent No.2 Manikrao were litigating over ancestral property. The certified copy of decree in Regular Civil Suit No. 23 of 1961 was produced and it showed that the suit was filed by Manoramabai, Ambadas and one Anita against present respondent No.2 Manikrao and one Ahilyabai. The suit was decided on 9th October, 1963 as it was compromised. The compromise decree was passed and thus the suit ended in 1963 itself and therefore the sale-deed which was executed in 1968 could not be said to be for legal necessity. On the other hand, the learned Additional District Judge stated in his para 11 of the judgment that as per the decree the lands were ( 7 ) partitioned. However, as per para 6 of the decree, respondent No.2 Manikchand was to pay Rs. 250/- per year towards maintenance of respondent No. 2- Ahilyabai, who was his adoptive mother. The costs of litigation as calculated in the decree itself are Rs. 997=13 of the plaintiff and Rs. 351=04 that of the defendants. As per the last sentence of compromise, the parties were directed to bear their own costs. But inspite of that the First Appellate Court in para 11 of the judgment observed that respondent No.2 Manikrao was liable to pay costs which were Rs. 900/- or above. The conclusion was also drawn that the amount of arrears of maintenances payable was Rs. 1500/-. Moreover, it has come in deposition of D.W.1-Sahebrao in the cross-examination that Rs. 2000/- to Rs. 3000/- were paid to Manikrao as the expenses of litigation which amount he had taken to Mumbai. D.W.1-Sahebrao is father of respondent No.1. It is brought in the cross-examination of witness of defendant that when the sale transaction took place Manikrao needed money for litigation and he had taken amount of Rs. 2000/- to 3000/- to Bombay. However, it is an error on the part of the Additional Sessions Judge to observe that respondent No.2 – Manikrao was to pay costs of litigation of Rs.900/- or so. ( 8 ) 8. So far as family debts are concerned, it is observed by the Trial Court that though it has come in evidence that respondent No.2 Manik was in need of amount for payment of dues to Manohar Patil as same house property was sold to Manohar Patil and that property was to be redeemed and therefore Rs. 3000/- were required for the same. It is observed by the Trial Court in para 14 that though the witness D.W.1-Sahebrao, father of respondent No.1 said that he had gone with respondent No.2 Manikrao to pay amount of Rs. 3000/- to Manohar Patil, but no document was produced to that effect. Manohar Patil is not examined. There was no writing made at the time of payment of Rs. 3000/- to Manohar Patil. The mortgage deed was not demanded back in presence of D.W.1-Sahebrao. It is argued that the Trial Court has not properly appreciated this aspect. It is not that respondent No.1 has to prove his case beyond reasonable doubt. There was no reason for disbelieving that amount of Rs. 3000/- was paid to Manohar Patil by respondent No. 2 in presence of D.W. 1 Sahebrao for redeeming house property. It may be noted that when the suit was filed in 1980, respondent No.1 Mahavir was 24 years of age as per age given in the plaint and his ( 9 ) age was given as 9 years in the sale-deed Exh.40. So, obviously the sale transaction would have been made by his father D.W.1-Sahebrao and therefore evidence of D.W.1 – Sahebrao should not have been disbelieved when nothing has come in the cross-examination to suspect his veracity. It is further observed by the first Appellate Court that in the sale-deed Exh.40, execution of which is not challenged, it is specifically mentioned that the debts of other money lenders were to be paid. The property was to be redeemed and for that purpose Rs. 6000/- were to be required to be paid at the time of sale-deed. It is also stated that earnest money of Rs. 5000/- was obtained for personal necessities and for expenses of Court litigation. It is true that the averments in the sale-deed in respect of legal necessities are not necessarily proof of their truth. But it is worth noting that in this case the sale-deed was challenged 12 years after litigation. The evidence of first witness of defendant was recorded on 22.02.1984, about 16 years after the sale-deed. 9. The learned advocate for the appellants relied upon observations from para 15 of Santosh Hazari V/s. Purushottam Tiwari deceased by L.Rs., 2001 (2) Mh.L.J.786. Therein ( 10 ) guidelines are given as to the approach of the Appellate Court in appreciation of evidence. It is observed that while writing judgment of reversal, the Appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the Trial Court must weigh with the Appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial judge. As a matter of law if the appraisal of the evidence by the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the Appellate Court is entitled to interfere with the findings of fact. 10. In this case the Trial Court expected proof beyond reasonable doubt, when Civil Suit is to be decided on preponderance of probabilities. Evidence of D.W.1-Sahebrao regarding respondent No.2 carrying amount of Rs. 2000/- to Rs. 3000/- to Bombay for litigation expenses was disbelieved. So also his statement regarding payment to Manohar Patil ( 11 ) towards redemption of house was also disbelieved without sufficient cause. It may be noted that in this case respondent No.2 was available. He did not contest suit. There was allegation of collusion between respondent No.2 and appellants made in the written statement of respondent No.1 and inspite of this, he avoided to enter into witness box and face cross-examination. The evidence of D.W.1-Sahebrao is further corroborated by recitals in the sale-deeds, which were made 12 years before filing of the suit. 11. Another case cited by advocate for the respondent is Shankarlal Ramprasad Ladha died L.Rs. & Ors. V/s. Vasant Chandidasrao Deshmukh & Ors., 2009 (1) Bom.C.R. 488. Paras 16 to 20 were referred to are mainly appreciation of evidence involved in that case and same does not amount to ratio as such. 12. So far as proof of legal necessity and recitals in the sale-deed are concerned, the following observations are made in para 10 and 11 of the case of Smt. Rani and another V/s. Smt. Santa Bala Debnath and ors., AIR 1971 S.C.1028. ( 12 ) “10. x x x x x x x x 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 providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. 11. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in; evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession.” 13. In Dnyanoba s/o. Gangaram Bhandwadkar and ors V/s. Bankar s/o. Rambhau Sonwane (Second Appeal No. 735 of 1980 decided on 11.03.1987), this Court observed in para 5 that suit was filed five years after the sale. The father did not ( 13 ) appear though he was party to the suit. It was alleged that it was collusive suit filed by father and sons. In the facts of that case it was held that the suit was collusive suit filed at the instance of the father and failure of the father to come forward to give evidence and to state the real facts raises a presumption against the plaintiff that money must have been needed for legal necessity. 14. One of the major circumstance that weighed with the Trial Court is that the family had more than 100 acres of land at the time of sale and as one of the witnesses admitted yearly income of so much land would be Rs. 30,000/- to Rs. 35,000/-, so sale must not be for legal necessity. It cannot be always so. It is not that persons having big landed property or rich persons do not need money or are not in financial difficulties. The First Appellate Court has rightly discussed this aspect and held that merely because person is having 100 acres land, it is difficult to draw inference that such person will not face financial difficulties. 15. In the case of Radhakishandas and anr. V/s. Kaluram ( 14 ) (dead) and after him his heirs and L.R., AIR 1967 S.C.574, it is observed that what alienee is required to establish is legal necessity for the transaction and that it is not necessary for him to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. The reason is that the alienee can rarely have the means of controlling and directing the actual application of the money paid or advanced by him unless he enters into the management himself. In para 5 some instances are given. In one Privy Council case referred therein the property was sold for Rs. 43,500/- and pre-existing debt was Rs. 38,000/-. It is held that it was not necessary to show how the balance was applied. So, what is to be proved is that there was pressure on the estate and the property was sold for legal necessity. In this case the mortgage deed, if any, after redemption would be in possession of plaintiff and respondent No.2. Moreover, the alienee is only to show that he made enquiries and he believed existence of legal necessity bona fide. 16. The learned advocate for respondents relied upon case of Mahadeo s/o. Tulsiram Pathade (dead) through L.Rs. ( 15 ) V/s. Smt. Vatsalabai sd/o. Shamrao Pathade, 2008 (6) Mh.L.J. 496. Therein, after referring to case laws, the Court observed that in Second Appeal there is restriction of re- appreciation of evidence of facts. In the present case, it is not shown that the findings of the First Appellate Court are perverse or based on no evidence. It is a reasonable judgment. 17. Reliance was also placed on para 23 and 24 of the case of Vishwasrao Madhavrao Chiplunkar and Ors., V/s. Kamlabai Vishwasrao Chiplunkar and Ors., 2003 (Supp.2) Bom.C.R., 197, regarding scope of re-appreciation of evidence by the second Appellate Court. 18. Bearing in mind above principles, in my opinion, this is not the case where this Court should interfere with the findings of fact recorded by the First Appellate Court. The findings recorded by the First Appellate Court are reasonable and based on evidence. 19. Reliance was also placed on the case of Sant Baksh Singh and Ors., V/s. Lachhman Prasad and Ors., AIR (33) 1946 ( 16 ) Oudh 92. On page 98 the Privy Council case is referred to. It is observed that the plaintiffs were minor children, when the deed was executed in 1926. The fathers of the plaintiffs said to have borrowed money and executed sale-deed for satisfaction of liability of loans obtained by them. Eventhough they were parties to the litigation, they did not come forward to give evidence whether all or any of debts borrowed by them were not for legal necessity. It was held that the suit was undoubtedly a collusive suit filed at the instance of father and it is one of the usual type of suits which are filed by junior members of joint Hindu family on attaining majority to set aside transaction by their father or grand-father charging them with fraud or collusion. 20. It is submitted that a separate suit for general partition is filed and it is pending. Admittedly, when the suit transaction took place, the family had 100 or more acres of land. The very act of filing this separate suit for partition only in respect of one property sold to respondent No.1 – Mahavir and not including other joint family properties in this suit for partition clearly shows mala fide intention to deprive respondent No.1 – Mahavir of even ( 17 ) getting equity by praying allotment of the suit land to the share of respondent No.2-Manikrao in general partition. This fortifies application of the observations made in the case of Oudh Court referred to above to the present case. 21. After having considered all aspects, in my considered opinion, the view taken by the First Appellate Court is legal, proper and based on evidence on record. Therefore, the judgment and decree passed by the First Appellate Court is hereby confirmed. Hence, the Second Appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2010/MAR10/sa287.89