1 29 sa.338.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 338 OF 2010 Dattatray Mahadu Mahadik and others. ... Applicants Versus 1. Shivram Abaji Patil (since deceased by his L.Rs. Nos.2 to 5) 2. Dadasaheb Shivram Patil and others. ... Respondents ­­­­­ Mr. S.G.Deshmukh i/b Mr. Manish Jain for the Applicants. ­­­­­ CORAM : A.S.OKA, J. DATE : 25 th November, 2011. P.C.: 1 The second appeal is preferred by the original Plaintiffs. The Appellant Nos.1 to 3 are the sons of one Mahadu who was impleaded as the Defendant No.1 in the suit filed by them. The Appellant No.4 is the wife of the said Mahadu. A suit for partition and separate possession of 4/5 share was filed by the Appellants. In the suit, it was contended that the Respondent No.1 / Defendant No.1 was addicted to liquor for a period of fifteen years and taking undue 2 29 sa.338.10 advantage of his mental weakness, for a negligible amount, the Respondent No.2 got executed a registered sale­deed dated 13 th April, 1967 in respect of the suit property from the Respondent No.1. It was contended that the suit property was a joint family property and there was no legal necessity in existence to enable the Respondent No.1 alienate the joint family property. The suit for partition was filed on 29 th March, 1979 wherein there was a challenge to the alienation made by the sale­deed dated 13 th April, 1967. The Respondent No.1 did not contest the suit. The Respondent Nos.2 to 5 contested the suit by contending that the suit property was sold by the Respondent No.1 for legal necessity. The trial Court accepted the case made out by the Appellants and passed a decree for partition by holding that the sale­ deed was not binding on the shares of the Appellants. The trial Court proceeded to pass a decree for partition. In the appeal preferred by some of the Defendants, the Appellate Court has interfered and has set aside the decree. 3 29 sa.338.10 2 The first submission of the learned counsel appearing for the Appellants is that only on the basis of two Marathi words in the sale­deed “dene warnes”, the learned district Judge came to the conclusion that there was a legal necessity for alienation. He pointed out that another sale­deed dated 18 th March, 1965 written by the same scribe was produced and proved at Exhibit – 264, which shows that the same two words were used in the said sale­deed. It is contended that the sale­deed shows that the scribe who wrote both the said documents was in the habit of using the same phraseology. He submitted that this contention was rightly accepted by the trial Court. He submitted that the Appellate Court has observed that there were no pleadings in the plaint to the effect that the said words were added in the sale­deed by playing fraud. He submitted that the burden was on the Defendant No.2 to prove that there existed a legal necessity and therefore, the lack of pleadings is irrelevant. He invited the attention of the Court to the findings recorded in paragraph No.26 of the judgment of the District Court. He submitted that at highest, the said finding is 4 29 sa.338.10 that the Respondent No.1 was liable to pay only a sum of Rs.36.80 per year. He submitted that the finding that the liability to pay the said negligible amount shows that there was a legal necessity is perverse inasmuch as for discharge of such small liability, valuable property could not have been disposed of. He, therefore, submitted that the illegality has been committed by the Appellate Court. 3 I have given careful consideration to the submissions. As narrated earlier, the suit was filed in the year 1979 where the challenge was to the alienation made by the Respondent No.1 (father of the Appellant Nos.1 to 3) in the year 1967. The learned district Judge has relied upon a decision of the Allahabad High Court in the case of Tejsingh & others Vs. Chaudhari Hannu Prasad & others [AIR (1940) Allahabad 433] which in turn relies upon a decision of the Judicial Committee in the case of Nand Lal Dhur Biswas Vs. Jagat Kishore [(1916) 3 AIR PC 110]. 4 The view taken is that if a very long time has elapsed 5 29 sa.338.10 between the date of the deed and the institution of proceedings for challenging the deed, the recitals in the deed cannot be disregarded. It was observed that if the deeds were challenged at the time or near the date of execution, independent evidence would be available and therefore, the recitals will deserve hardly any consideration. However, it was held that as the time goes by, a recital consistent with the probability and circumstance of the case, assumes greater importance and the deed cannot be lightly set aside. As stated earlier, the suit was filed after lapse of a period of twelve years from the date of execution of the sale­deed. It appears that evidence was recorded in the year 2004. The Appellate Court, therefore, considered the recital in the sale­deed to the effect that the consideration amount was taken by the Respondent No.1 for discharge of a loan. It is true that another document written by the same scribe was produced at Exhibit – 264 which is dated 18 th March, 1965 to show that the same words indicating that the consideration amount was taken for discharge of debts were used in the recitals or sale­deed. The Appellate Court has 6 29 sa.338.10 observed that there was no evidence adduced to prove the recitals in the said sale­deed at Exhibit – 264 were incorrect. Only on the basis of one sale­deed of the year 1965 written by the same scribe, the trial Court could not have accepted the case that the scribe was in the habit of using the same words. There is no finding recorded by the trial Court that any evidence was adduced to show that use of the said words by the scribe was without instructions of the executant. As far as finding in paragraph No.26 of the impugned judgment is concerned, reference has been made to the mutation entry of the year 1964 which records that the Tahsildar has granted Tagai loan of Rs.500/­ to the Respondent No.1 Another mutation entry at Exhibit – 282 shows that a charge in the sum of Rs.581.94 was kept for the amount of Tagai loan on the field belonging to the Respondent No.1 in the year 1965. The figure of Rs.36.80 is the yearly installment of the loan. What was considered by the Appellate Court is that the loan amount of Rs.500/­ was advanced on 17 th March, 1964 and as of 13 th February, 1965, the said amount payable by the Respondent No.1 was Rs.581.94. The 7 29 sa.338.10 finding recorded in paragraph No.26 supports the recital in the sale­ deed of the year 1967 which records that the suit property was sold for discharge of loan. That is why the Appellate Court came to the conclusion that the recital in the sale­deed was consistent with the circumstances brought on record. Another contention raised by the Appellant is that the Respondent No.1 was addicted to liquor for a period of fifteen years and more. In paragraph Nos.21 and 22 of the judgment, after considering the oral evidence of the Appellants, the said case has been discarded by the Appellate Court. In paragraph No23, the Appellate Court noted that even the trial Court discarded the case made out by the Appellants that the Respondent No.1 was addicted to liquor and in fact, observation of the trial Court is that the Respondent No.1 was a prudent man. That is how the Appellate Court has observed that being a prudent man, the property must have been sold by the Respondent No.1 for the legal necessity in the year 1967. This circumstance has been held by the Appellate Court as corroborating the recitals in the sale­deed. In the circumstances, it is 8 29 sa.338.10 not possible to find fault with the findings of fact recorded by the Appellate Court. 5 No substantial question of law arises. The second appeal is accordingly dismissed with no order as to costs. [ A.S.OKA, J ]