1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.138 OF 2003 Babu Shamrao Kailase and others Appellants Versus Shamrao s/o Rokdu Kailase, died through L.Rs. and others Respondents Mr.A.M.Gaikwad, advocate for the appellants. Mr.S.V.Kurundkar, advocate for Respondents No.2 & 11. Mr.Rohit S.Sarvadnya, advocate holding for Mr.M.V.Deshpande, advocate for Respondents No.13, 14, 15, 16, 17 & 19. CORAM: R.M.BORDE, J. DATE : 12th August, 2009. ORA ORDER: 1 This is an appeal by original plaintiffs raising exception to the judgment and decree passed by the first appellate Court, thereby reversing the judgment and decree passed by the trial Court in R.C.S. 170/1988. 2 Appellants no.1 to 3 – original plaintiffs no.1 to 3 are brothers inter se, whereas appellant no.4 – original plaintiff no.4 is mother of appellants no.1 to 3 - plaintiffs no.1 to 3. Defendant No.1 Shamrao is father of plaintiffs no.1 to 3. Plaintiffs in the suit are impeaching transactions in respect of landed property entered into by their father 2 from the year 1967 up to 1986. There are almost 17 transactions entered into with respect to small pieces of land belonging to defendant no.1 during the span of almost 20 years and all these transactions are being impeached at the instance of sons and wife of defendant no.1 and most peculiar fact is that defendant no.1, who is father and who has entered into transactions for all these 20 years, remained absent and did not file written statement. According to the plaintiffs, transactions entered into by defendant no.1 were not for legal necessity and as such, plaintiffs are entitled to have separate shares in the property. Plaintiffs further contend that the transactions of prior period are being impeached within the period of limitation, after they attained majority. 3 Some of the defendants appeared and resisted the suit claim by filing written statement. It is denied that that transactions were not for legal necessity. The evidence to controvert contention in respect of want of legal necessity has been led by defendant no.10 as well as the sale deeds in question are also placed on record. 4 The trial Court, on appreciation of evidence placed on record, came to the conclusion that concerned defendants have failed to establish existence of legal necessity. Defendant no.1 was not entitled to transact in respect of shares to which plaintiffs are entitled to and as such, while granting decree in favour of the plaintiffs, trial Court held them entitled to have 1/5 th share in the property. 5 Defendants preferred different appeals to the first appellate Court. The appeals preferred by defendants came to be allowed by the 3 first appellate Court and the first appellate Court has reversed the finding in respect of existence of legal necessity in alienating the property at the instance of defendant no.1. The first appellate Court has allowed the appeals and set aside the judgment and decree passed by the trial Court. 6 I have perused the judgment passed by the first appellate Court. The first appellate Court, on consideration of the oral evidence as well as documentary evidence in the form of sale deeds, has reached the conclusion that defendants have proved that there was legal necessity for defendant no.1 to alienate the property. It has been observed by the first appellate Court that the recitals in the sale deeds placed on record clearly make a mention that the properties have been sold for repayment of agricultural loan as well as for household expenses. In almost all the sale deeds recitals find place in respect of need of defendant no.1 for satisfying household expenses as well as for repayment of loan. It has also been brought on record that defendant no.1 had three three daughters and their marriages were performed during the span of last 20 years. It is suggested that the property has been alienated for incurring expenses of marriages of daughters as well as for satisfying day-to-day needs of the family. It is to be taken note of that defendant no.1 has alienated small pieces of agricultural property periodically during the span of 20 years. It thus appear and is also supported from the recitals contained in the sale deeds that defendant no.1 was in need of money for satisfying household expenses. There is also evidence in respect of loan incurred by defendant no.1 payable to the society. Relevant evidence, in that regard, has been placed on record. It has been 4 brought on record that loan was outstanding for years together amounting to Rs.3390/- towards principal and Rs.3384/- towards interest. These circumstances indicate that defendant no.1 was in need of money and there was pressure on the estate on account of outstanding loan. The burden cast on the defendants is merely to demonstrate that there were legitimate needs for making alienation of the property. It was not necessary for defendants to account for the needs and further lead evidence as to how the amount of consideration has been applied. It would be sufficient if the circumstances are brought on record to demonstrate that there existed family needs for making alienation of the property. The recitals contained in the document i. e. sale deeds coupled with the circumstances brought on record as well as considering the evidence in respect of incurring of loan repayable by defendant no.1 is sufficient to discharge the burden which has been placed on the shoulders of defendant no.1. 7 It is contended that all the defendants did not contest the suit and, therefore, the first appellate Court ought not to have set aside the part of decree as against those defendants, who did not even bother to file written statement. What is required by the appellate Court is to look into the aspect as to whether the contentions raised by plaintiffs have been substantiated; and in the instant matter what was required to be appreciated is, whether defendants, in general, discharged the burden in respect of demonstrating existence of legal necessity. The first appellate Court has considered relevant circumstances and in my opinion, reasonable approach has been adopted by the first appellate Court. The question raised by appellants in respect of existence of legal necessity, is 5 essentially a matter relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed. Pending Civil Applications do not survive and stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa13803