: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.662 OF 1990 Balwant Aloba Patil & Ors. ... Appellants V/s. Prakash @ Gulabrao Y. Ghatage & Ors. ... Respondents Mr.B.R. Patil for Appellants Mr.S.V. Sadavarte for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. JUDGMENT RESERVED ON: JULY 22, 2009 JUDGEMENT DELIVERED ON: AUGUST 11, 2009 JUDGMENT: 1. This Second Appeal challenges the decision of the District Judge, Kolhapur in Regular Civil Appeal No.94 of 1984 which confirms the judgment passed by the trial Court in which the suit filed by the respondent was decreed. The plaintiff i.e. Respondent No.1 was held to be entitled to 4/27th share in the suit lands and was therefore, entitled to partition by metes and bounds and separate possession. It was further held that the defendants i.e. the appellants herein would be liable to pay Rs. 1,500/- towards the past mesne profits to the plaintiff and that the future mesne profits should be determined separately under the provisions of Order 20 Rule 12 of the Civil Procedure Code. : 2 : 2. One Yeshwant and his two brothers owned agricultural land being Survey No. 99 admeasuring 17 acres 21 gunthas at Charan. Yeshwant who was entitled to 1/3rd share of this land expired on 4.9.1957. Respondent No.2 was the wife of Yeshwant and the guardian of Respondent No.1 who was then a minor. Respondent No.3 was the daughter of Yeshwant and Respondent No2. It appears that Respondent No.2 sold the 1/3rd share of the aforesaid land which came to the share of Yeshwant by way of legal necessity. She was liable to pay expenses for the education of Respondent No.1 and the marriage of Respondent No.3 and had also to pay for the litigation expenses which she had incurred while contesting the litigation against Respondent Nos.4 and 5. 3. Appellant Nos.1 and 2 purchased the land from Respondent No.2 and in turn sold the same to Appellant No.3 on 27.3.1967. 4. When Respondent No.1 became a major, he filed a suit on 11.6.1973 for a declaration that the sale of the land was not binding on him. He therefore sought partition and separate possession of 4/18th share in Survey No.99. 5. The suit was contested by the appellant Nos.1 and 2 on the ground that the land had been sold by Respondent no.2 for legal necessity and for the benefit of Respondent No.1 who was then a minor. Appellant No.3 contended that the was a bonafide purchaser for value without notice and therefore, was not liable to return the property. : 3 : 6. Evidence was led before the trial Court by the respondent No.1 i.e. the plaintiff and appellant No.1 and one other witness on behalf of Appellant No.1. The trial Court decreed the suit as aforesaid and held that the plaintiff i.e. Respondent No.1 herein was entitled to 4/27th share of the suit property. 7. Being aggrieved by that decision, the appellants preferred Regular Civil Appeal No.94 of 1984 which has been dismissed and therefore, the present appeal. The questions of law raised in the present second appeal is as under: (a) Whether defendants 6 and 7 sold the suit land in favour of the defendant 1 and 2 for legal necessity? (b) Whether defendant No.3 proves that he is bonafide purchaser for value without notice? 8. The learned advocate for the appellant submits that the property had been sold to them by Respondent No.2 on account of the legal necessity as she was required to face mounting financial liabilities. The learned advocate submits that both the Courts below have incorrectly placed the onus on the appellants i.e. the defendants to prove that there was a legal necessity for respondent No.2 to sell the property to them. He submits that it would be for the plaintiff i.e. Respondent No.1 herein to prove that there was no such legal necessity for selling the property and placing the burden on the appellants is wholly incorrect. He further submits that the appellants are bonafide purchasers for value without notice and, therefore, cannot be : 4 : deprived of the suit lands. 9. On the other hand, the learned advocate for Respondent No.1 points out that assuming there was a legal necessity to sell the property it was for the defendants to prove that they had enquired whether such a necessity existed before they purchased the property. He submits that the financial circumstances in which the family was placed after the death of his father were not such which required his mother to sell the property for legal necessity. The leaned advocate points out that the family was earning sufficiently from the rents being received in respect of the joint family property. He further points out that the aforesaid questions are not substantial questions of law which require consideration from this Court. 10. There can be no doubt that a mother of a minor child can sell property owned by her as a guardian of the child. However, such alienation has to be justified. In case of S.S. Shinde v. Shiva Deorao Jamale, (1973) 7 BLR 267, it has been held that the powers which a Hindu father has as a natural guardian of his minor sons under Hindu law are kept intact and are not in any way affected by the provisions of Hindu Minority and Guardianship Act. However, it has further been held that such alienation would have to be justified under the Hindu law. No permission is required before effecting such alienation. Similarly, in the case of Gangoji Rao v/s. H.K. Channappa & Ors., AIR 1983 KARNATAKA 222, the Karnataka High Court has held that the Legislature in its wisdom used the term “joint family” in section 6 of the Hindu Minority and Guardianship Act, contradistinguishing it from “coparcenery” which has a narrow connotation. The Court held that a mother can also manage the family property as is evident from section 12 which speaks of “an adult member of the : 5 : family” and not “an adult male member of the family”. A joint family would include the mother and the unmarried daughters. 11. Undoubtedly, the property could have been sold for legal necessity. However, the evidence on record indicates otherwise. In fact, there is a concurrent finding of fact recorded by both the Courts below that there was no legal necessity for Respondent No.2 herein to have sold her share in the suit property. Both the Courts below have observed that there was not even an iota of evidence to indicate that the respondent mother could not have supported her children and herself with the money recovered by her as rent. Thus, applying the aforesaid two judgments, there can be no doubt that respondent Nos.2 was entitled to sell the land for legal necessity. However, there is no material on record to indicate that such a legal necessity existed when she sold the land to the Appellants on 7.2.1967. However, both the Courts below have rightly held that the fact that the legal necessity existed had to be proved by the purchaser of such land i.e. the appellants herein. The appellants as the alienees ought to have been more vigilant before entering into any agreement of sale for lands which admittedly were co-owned by a minor. 12. Mr.Sadavarte in my opinion, has rightly submitted on behalf of respondent No.1 that there is absolutely no material on record to indicate that there was a legal necessity which compelled respondent No.2 to sell the property. In these circumstances, the orders impugned cannot be questioned. 13. Apart from this, the appellants have not proved that they were bonafide purchasers for value without notice. Had they in fact been bonafide purchasers, : 6 : appellant Nos.1 and 2 would have made sufficient enquiries prior to purchasing the property from Respondent No.2. They have purchased the same knowing full well that the property was co-owned by a minor and that there was nothing on record to indicate that it had been sold by way of legal necessity. There is ample evidence to indicate that Respondent No.2 was earning rent from some other premises and that the land in possession of Respondent No.2 being fertile could have sufficiently met the needs of respondent No.2 and her children. 14. Thus, in my view, there is no need to interfere with the findings of fact recorded by both the Courts below. The legal necessity for selling the property to which the respondent No.1 was entitled to has not been proved. Nor have the Appellants proved that they were bonafide purchasers for value without notice. Accordingly, the suit has rightly been decreed and it has been held that Respondent No.1 is entitled to 4/27th share of the suit property. 15. Appeal is dismissed.