1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 14 OF 2000 1. Durgabai W/o Vithal Patil Age : 59 years, Occ : Household Work, 2. Ramchandra Vithal Patil Age : 32 years, Occ : Agriculturist, 3. Indubai Vitthal Patil Age : 29 years, Occ : Household Work, 4. Primila Vithhal Patil Age : 25 years, Household, All R/o Sindhgavhan, Tq. & Dist. Nandurbar, 5. Vedu Vitthal Patil, Age : 25 years, Occ : Labour, R/o Parle Point, 8th Lane Surat Gujrath. Appellants -VERSUS- 1. Kashinath S/o Shankar Patil Age : 59 years, Occ : Agriculturist, R/o Sindhgavan, Tq. & Dist. Nandurbar. 2. Kamalajabai W/o Kashinath Patil Age : 49 years, Occ : Household Work, Respondents ------------------------------------------------------ Mr. S.S. Wagh, Advocate for the appellant. Mr. P.M. Shah, Advocate for the Respondent Nos.1 and 2. ------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE OF JUDGMENT RESERVED : 1st October, 2009. DATE OF JUDGMENT PRONOUNCEMENT : 15th October, 2009. 2 ORAL JUDGMENT : 1. This appeal has been preferred by the original plaintiffs and the defendant no.4 challenging the Judgment and Decree passed by the learned Joint Civil Judge, Junior Division, Nandurbar dismissing the Civil Suit No.78/1981 on 16.02.1987, which is confirmed in Civil Appeal No.277/1990 by the learned Additional District Judge, Nandurbar by his judgment and order dated 26.08.1999. 2. This Court admitted the instant appeal on 01.08.2000 on the substantial questions of law which were framed as specified in Ground Nos.I to VII, mentioned in Memo of appeal, which are reproduced below :- I) The Judgment and decree of both the Court below are wrong, illegal and erroneous. II) Both the Courts below have not appreciated the Law and evidence properly. III) It is humbly submitted that the Courts below failed to take in consideration the fact that, burden was wholly on defendants Nos.1 and 2 to prove proper execution of sale-deed and passing of consideration. The 3 defendants neither proved the execution of sale deed as per provisions of section 67 of Evidence Act nor have proved the fact that they have paid consideration of the sell. IV) The appellants humbly submit that defendants in their Written Statement as well as in oral evidence have stated in one breath that the consideration was cash amount of Rs. 13000/- and in another breath they stated that it was partly cash amount of Rs.7000/- and partly it was land of 6 Acres 17 Gunthas at Dhamdod. But in fact the sell-deed is not showing the consideration of exchanged land. This shows that consideration of sale-deed is not paid to Vithhal. V) It is submitted humbly that it is also a matter of record that the so called alleged change deed is unregistered. Therefore, it is not admissible in evidence to prove the term of consideration. This fact further fortifies the fact of non-payment of consideration of impugned sell. VI) The appellants respectfully submit that the oral evidence especially the unambiguous admission of Kashinath shows that Vitthal had repaid the Bank loan. Hence that consideration also cannot be said to have been paid by Kashinath or his wife. For the sake of arguments even if the say of Kashinath is accepted as true, that the Bank Loan was repaid out of consideration of exchange land, then that transaction cannot be connected with the suit transaction at all for following two reasons. Firstly because exchange for want of registration and secondly it is not mentioned in impugned sell-deed. Hence evidence of that consideration in sell deeds totally inadmissible by virtue of section 91 r/w Sec. 92 of Evidence Act. Because the sale deed is neither proved and even if proved the oral evidence to change it’s terms is not 4 admissible u/s. 92. So also the alleged exchange deed being inadmissible, evidence about that consideration also becomes inadmissible in evidence. Both the Courts below should have totally discarded the evidence about transaction or consideration of exchange transaction. If that evidence is removed from consideration, the fact stands that the Vitthal was not paid the total consideration of the sell deed and therefore the transaction of sell becomes incomplete and cannot bestow title on the defendants. VII) The learned Courts below have not appreciated the law that, to authorize the transaction of Hindu Joint Family Property by Karta, the legal necessity should be acute and pressing need and it should be out of dire necessity. Merely there was outstanding loan of Rs.3000/-, that itself cannot be legal necessity of family. Hence even if the evidence of defendants is accepted as it is, it cannot prove legal necessity and the transaction of family property cannot be validated for want of legal necessity to family of plaintiffs. 3. The facts leading to the case are as under. The Regular Civil Suit No.78/1981 was filed by the plaintiff no.1-Durgabai the wife of one Vithal Dongar Patil and plaintiff no.2-Ramchandra Patil, plaintiff no.3-Indu Patil, plaintiff no.4-Sunanda Patil and the plaintiff no.5-Pramila Patil, the son and daughters of the said Vithal Dongar Patil, for 5 declaration that the sale deed executed on 03.12.1980, by the defendant no.3-Vithal Dongar Patil, the husband of the plaintiff no.1 and father of the plaintiff nos. 2 to 5, in favour of the defendnat no.1-Kashinath Shankar Patil and defendant no.2-Kamaljabai, the wife of the defendant no.1, in respect of the share of the plaintiffs and defendant no.4 namely; Vedu S/o Vithal Dongar Patil in the suit property which is land survey no.97/1, Gat No.224 admeasuring 2 Acres and 10 Gunthas, is not binding on them. Initially, the plaintiffs claimed that, they were in possession of the suit property and hence, the relief of permanent injunction restraining the defendants from interfering with their possession, was asked for. However, subsequently, according to the plaintiffs, the defendant nos.1 and 2 dispossessed them during the pendency of the suit and hence, the relief of possession of the suit property was also claimed, by way of amendment to the Plaint. 4. The plaintiffs, in their suit, alleged that the suit property was an ancestral property in which the plaintiffs and the defendant no.4 had share and 6 the defendant no.3-Vithal had no right and authority to sale the same to the defendant no.1 and 2. It was alleged, that the defendant no.1-Kashinath Shankar Patil, is the nephew of defendant no.3-Vithal and defendant no.2-Kamaljabai is the wife of the defendant no.1, who have taken unfair advantage of defendant no. 3-Vithal, who was addicted to bad vices of consuming liquor, to get the sale deed executed in their favour on 03.12.1980, by administering him the liquor and drugs. It was alleged, that there was no consideration paid nor there was any legal necessity for sale of the suit property in question. It was alleged that, as soon as the plaintiffs came to know about the execution of the sale deed, they filed this Civil Suit on 02.05.1981. 5. The defendant no.1-Kashinath, filed his written statement at Exhibit-17 and defendant no.2- Kamaljabai, filed her written statement at Exhibit-49. Both of them have denied the claim made in the suit. They have denied, that the defendant no.3-Vithal was addicted to bad vices as alleged and that the property was ancestral property of the defendant no.3. They 7 denied, that they had in any manner influenced the defendant no.3, to execute the sale deed in question. The defendant nos.1 and 2 submitted, that the defendant no.1 had taken loan from the land mortgage bank which was required to be repaid and hence, the suit land was sold by the defendant no.3, to the defendant nos.1 and 2, on 06.06.1974, for consideration of Rs.7,000/- paid in cash and exchange of land gat no.217 admeasuring 6 Acres, situated at Dhamdodh, belonging to the defendant no.2 and since then the defendant nos.1 and 2 are in possession of the suit land, as the owners. It was further alleged, that on 19.10.1975, writing was obtained in the form of memorandum of aforesaid transaction from the defendant no.3 and at that time, the loan amount outstanding, was of Rs.4,000/-. It was further alleged, that although the amount of Rs.7,000/- was paid earlier to the defendant no.3 for repayment of loan, the defendant no.3 utilised the said amount for the benefits and legal necessity of his family and did not repay the loan. It was alleged, that the defendant no.3 subsequently sold the exchanged land i.e. gat no. 217 of Dhamdodh on 02.12.1980 and repaid the loan 8 amount. It was submitted that after repayment of loan the sale deed was executed on 03.12.1980 in favour of the defendant no.2, by the defendant no.3. It was submitted that the defendant nos.1 and 2 were in possession of the suit field right from the year 1974 and they were cultivating the same. 6. The defendant no.3 Vithal filed his written statement at Exhibit-55 and accepted that the suit property was ancestral property and supported the claim of the plaintiffs. The defendant no.4-Vedu S/o Vithal Patil, the son of the defendant no.3, also filed pursis Exhibit-58 stating therein that he supports the claim of the plaintiffs. According to the plaintiffs, the defendant no.4 was not available when the suit was filed and hence, he was made as proforma defendant, who supported the claim of the plaintiffs. 7. The Trial Court framed the issues. The issue no.3 was regarding the suit land whether was joint family property of the plaintiffs and defendant nos.3 and 4. The Trial Court recorded the findings in its Judgment, that it was almost an admitted position that 9 the suit property was ancestral property and the defendant no.1 also admitted in his cross examination that the property was ancestral property. So far as the issue regarding possession of the property was concerned, the Trial Court recorded finding, that on the date of filing of the suit, the suit land was in possession of the defendant nos.1 and 2, by relying upon the findings recorded while deciding the Exhibit-5 application for injunction, which was also confirmed in appeal by the District Court. On the issue whether, the plaintiffs prove that the defendant nos.1 and 2 obtained the sale deed by playing fraud, the Trial Court rejected the contention of plaintiffs. 8. On the question of consideration, the Trial Court recorded the finding, that the consideration for sale was given on 06.06.1974 by payment of Rs.7,000/- in cash and exchange of land gat no.217 of village Dhamdodh, admeasuring 6 Acres, in favour of the defendant no.3. The Trial Court accepted that the execution of the sale deed was prolonged till 03.12.1980 and till then the suit property was standing in the name of the defendant no.3. The Trial 10 Court also believed that on 02.12.1980, the loan amount was repaid and receipt to that effect at Exhibit-116 was produced. Relying upon the evidence of witness DW2-Dayaram Gajamal, who purchased the land gat no.217 of Damdodh, in the name of his mother- Padmajabai, it was held that the sale deed dated 03.12.1980 Exhibit-146, was proved. 9. It was held that the suit property was sold for legal necessity i.e. the payment of debt of the land mortgaged bank and the amount of Rs.6,000/- received out of the sale of land gat no.217, was utilised in discharging debts incurred in respect of the marriage of the daughter of the defendant no.3. The Trial Court also relied upon the documents at Exhibit-143, which was a writing in the form of Memorandum of transaction of exchange, dated 19.10.1975, signed by the defendant no.3 and exchange deed at Exhibit-144, signed by the defendant no.3, in support of its finding that the defendant no.3 was indebted. The Trial Court held, that the defendant nos.1 and 2 proved, that the defendant no.3 sold the suit land to them on 06.06.1974, in exchange of gat 11 no.217 situated at Dhamdodh + Rs.7,000/-, which was paid in cash. It was further held, that in order to discharge debts of the land mortgaged bank to the tune of Rs.4,000/-, the sale deed was executed. The Trial Court negatived the plea of the plaintiffs that the sale deed was executed by the defendant no.3 under the influence of liquor or drugs said to be administered by the defendant nos.1 and 2. The suit was thus dismissed by the Trial Court. 10. The Appellate Court confirmed the findings of the Trial Court and dismissed the appeal. The Appellate Court discarded the evidence of the P.W. 1- Vedu, as not reliable and trustworthy. Relying upon the evidence of DW-Kashinath Shankar and DW-Dayaram, it was held, that recitals of Exhibit-143 (19.10.1975) which was Memorandum in respect of exchange transaction, were proved. It was held that, the defendants have proved that there was legal necessity for defendant no.3, to sale the property for the purposes of marriage of daughter, the payment of the loan of the land mortgaged bank and family expenditure. Appellate Court has held, that the 12 plaintiffs have failed to prove, that the sale deed executed by the defendant no.3 in favour of the defendant no.1, was null and void and not binding on them. 11. Shri. Wagh, the learned Counsel for the appellant relied upon the decision of Patna High Court reported in A.I.R. 1962 Patna 319(Bhageran Rai and others V/s Bhagwan Singh and others) in which it was held, that the unregistered document of sale can not be evidence of legal necessity for contract of sale and no inference as to the existence of legal necessity for the contract can be drawn from recital in the sale deed. It was further held, that if such imperative necessities could wait for their satisfaction for nearly a year, the conclusion is irresistible that they did not exist in fact and were purely imaginary. This judgment was relied upon in support of his case that Exhibit-143 dated 19.10.1975, which was Memorandum of transaction of exchange alleged to have taken place on 06.06.1974, was unregistered and could not be relied upon to establish the transaction of sale for legal necessity. Shri. 13 Wagh relied upon the decision of the Orisa High Court reported in AI.R. 1981 Orissa 23 (Karunakar Panda V/s Durgabati Bewa) on the proposition that the legal necessity to support a sale must be established by the transferees. It was further held that, the onus of proving legal necessity may be discharged by the transferees by proving actual necessity or by proving that they made proper and bonafide enquiries about the existence of necessity and that they did all, that was reasonable to satisfy themselves as to the existence of necessity. According to Shri. Wagh, the burden to prove the legal necessity was upon the defendant nos.1 and 2 and they have failed to discharge the same by proving the actual necessity. Shri. Wagh relied upon a decision of the Apex Court reported in AIR 1971 SUPREME COURT 1028 (Smt. Rani and another V/s Smt. Santa Bala Debnath and others) in support of his contentions that legal necessity does not mean actual compulsion but it means pressure upon the estate which in law may be regarded as serious and sufficient. It has further been held that, the onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and 14 bona fide enquiries about the existence of necessity. Lastly, Shri. Wagh relied upon the decision of the Apex Court reported in A.I.R. 1953 S.C. 487 (Sidheshwar Mukherjee V/s Bhubneshwar Prasad Narain Singh) to urge that where the purchaser is held to have not acquired title to any defined share in property and was not entitled to joint possession from the date of his purchase then he could work out his rights only by a suit for partition and his right to possession would date from the period when specific allotment was made in his favour and purchasers right to profit debt from the date of partition. 12. On the contrary, Shri. Shah, the learned Counsel appearing for the defendant nos.1 and 2 has urged that, both the Courts below have recorded concurrent findings of facts on both the questions i.e. payment of consideration as well as the legal necessity and same are based upon the appreciation of evidence oral as well as documentary and no question of law much less substantial question of law arises out of the findings recorded by the Courts below and the Second Appeal is therefore liable to be dismissed 15 on this short ground. He has further urged, that the payment of debts was discharge of the pious obligation of the defendant no.3 and it can not be said that it was not for legal necessity. He supported the finding recorded by both the Courts below. The learned Counsel urged, that the evidence on record clearly establish, that the defendant no.3 was paid an amount of Rs. 7,000/- by defendant nos.1 and 2 on 06.06.1974 and the defendant no.3 also received an amount of Rs.6,000/-, by way of sale of gat no.217, which he received in exchange and sold it to Padmajabai, the mother of Dayaram who is an identifying witness, to the sale deed at Exhibit-146 and therefore, it can not be said, that there was no consideration paid to the defendant no.3. 13. Shri. Shah, the learned Counsel appearing for the respondents-defendant nos.1 and 2 relied upon the same judgment of the Apex Court reported in A.I.R. 1971SUPREME COURT 1028 (Smt.Rani and another V/s Smt. Santa Bala Debnath and others). He does not dispute the preposition laid down by the Apex Court that, legal necessity means the pressure upon the estate 16 which in law may be regarded as serious and sufficient and onus is upon the alienee to prove it. Shri.Shah states that the questions whether there existed legal necessity and whether, onus was discharged by the alienee, are disputed questions of facts and both the Courts have recorded findings in favour of the defendants that they have proved the legal necessity. The recitals of Exhibit-143, 144 and 145 are admissible in evidence as supporting evidence. He further relies upon this judgment to urge, that full consideration paid for and the sale was binding upon the plaintiffs. He further relies upon the decision of Apex Court reported in (1993) 3 S.C.C. 68 ( Manibhai and others V/s Hemraj and others) to urge that the alienation of joint family property by father to satisfy debts contracted even for his personal benefits and without any legal necessity is binding on his sons on the basis of doctrine of `Pious obligation’ if the alienation is not Avyavharik or tainted with immorality or illegality and the debts were antecedents in fact as well as in time to the alienation. 17 14. With the assistance of the learned Counsels appearing for the rival parties, I have gone through the entire record and the depositions which were read over. The learned Counsel for the appellant has basically addressed this Court on two aspects (i) that there was no consideration for sale of the property as evidence by sale deed dated 03.12.1980 at Exhibit-146 and (ii) that there was no legal necessity to sale the property. It is not in dispute that the finding that the property in question was the ancestral property recorded by both the Courts below, has not been challenged by any of the parties. The sale deed in question is at Exhibit-146 dated 03.12.1980. The P.W. 1-Vedu who is appellant no.5 herein and the original defendant no.4 has in categorical term admitted in his evidence that Exhibit-146 bears the signatures of his father-Vithal Dongare Patil and he identified it. It is also not in dispute that D.W.2-Dayaram has signed the sale deed as identifier and has proved the said document. The sale deed is registered. D.W.1- Kashinath (defendant no.1) has stated that, Vithal has signed the sale deed before him and Hiraman signed the same as witness. He further submits that, Dayaram and 18 Uttam identified it and the contents of the sale deed are true and correct and they were drafted as per Vithal’s say. He states that, it was written by one Kishor and stamps were purchased by Vithal. In view of this, it can not be said that the sale deed at Exhibit-146 was either not proved or that it was not admissible in evidence. Trial Court as well as Appellate Court have recorded a finding of fact that sale deed at Exhibit-146 has been proved. In view of this, in my opinion, no substantial question of law either as to the proof of Exhibit-146 or its admissibility in evidence arises in the instant Second Appeal. 15. Once the document at Exhibit-146 is held to be proved and its contents become admissible in evidence, perusal of Exhibit-146 shows that it was for consideration of amount of Rs.13,000/- which was paid to Vithal much prior to execution of sale deed. The sale deed also recites, that an amount of Rs.3,786.07 was paid to discharge the debts of Vithal on 02.12.1980 vide receipt No.95276 which was issued by the land mortgaged bank, branch Nandurbar. It does not 19 indicate that an amount of Rs.3,786.07 was in addition to Rs.13,000/-. The receipt of land mortgaged bank for payment of Rs.3,786.07 is also proved as Exhibit-145 (same is also numbered as Exhibit-116) dated 02.12.1980. Thus these two documents are enough to show that the suit land was sold by Vitthal for consideration of Rs.13,000/-, which he had received. In this respect the decision of the Apex Court reported in A.I.R. 1971 SUPREME COURT 1028 (Smt. Rani V/s Smt.Santa Bala Debnath) relied upon by both the learned Counsels is relevant. It has been laid down in the said judgment that the burden of proving, that consideration was not received by the vendor, lies upon the plaintiffs. When recitals in the sale deed shows that the consideration was paid, it is for the plaintiffs to prove that the recitals in the sale deed about the consideration is false and the vendor did not infact received the consideration. In this case, there seems to be no evidence laid by the plaintiffs to prove that such consideration was infact not received. At any rate, the finding of the courts below that such consideration was paid is based upon evidence and is a possible view, on facts, which does 20 not call for any interference. 16. Shri. Wagh, the learned Counsel appearing for the appellant has urged that, the document at Exhibit-143 is not admissible in evidence, being not registered and hit by section 17(1)(b) r/w section 49 of the Registration Act and section 118 r/w section 5 of the Transfer of Property Act. Shri. Wagh has further urged that the oral evidence laid in support of claim for payment of consideration was not admissible in view of section 91 and 92 of the Evidence Act. In my opinion, all such questions does not arise in the present case. As pointed out earlier, the transaction of sale including that of consideration, has been clearly established on the basis of Exhibit-145(Exh.116) and Exhibit-146. The document at Exhibit-143 and oral evidence is laid to establish the legal necessity and it can not be said that such evidence is inadmissible. The contentions of Shri.Wagh is therefore rejected. 17. In respect of legal necessity, the proposition is not in dispute that the burden of proof 21 is upon the alienee namely the defendant nos.1 and 2 herein and that the legal necessity does not mean actual compulsion but it means pressure upon the estate which in law may be regarded as serious and sufficient. The Trial Court as well as Appellate Court recorded the finding of facts that, there existed legal necessity for defendant no.3-Vithal to sell the property. The legal necessity being, to clear the debts, to perform the marriages of daughters and to meet the family obligations and expenses. In my view, the evidence on record clearly establishes