APPEAL FROM ORIGINAL DECREE No.180 OF 1985 Against the Judgment and decree dated 18.1.1985 passed by Sri Gopal Ji, Sub-Judge, Sasaram, in Title Suit No.55 of 1981. GHURBIGAN SAH & ORS.----------Defendants-Appellants. Versus LALAN SAH & ORS.-----------------Plaintiffs-Respondents. For the appellants : Sri Anjani Kumar Sinha,No.1. Sri Chakrabarti Singh, Advocates. For the respondents: M/s. Mahesh Kumar, Rewati Kumar Raman and Gopal Saran, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO JUDGMENT Mungeshwar Sahoo,J The defendants-appellants have filed this first appeal against that part of the judgment and decree dated 18.1.1985 passed by Sri Gopal Ji, Sub Judge, Sasaram, in Title Suit No.55 of 1981 whereby the learned Sub-Judge held that the sale made by the defendant-appeellant No.1 after institution of the suit is not for legal necessity and directed that the properties described in Schedules- A and B of the additional written statement of defendant no.1 will be allotted in the share of defendant no.1. 2. The facts of the case are in a very narrow compass. The plaintiff-respondents filed the aforesaid suit for partition of their share to the extent of 4/5th in the suit property described in Schedule- Ka of the plaint. Their case, in short, is that the suit property exclusively belong to Doman Sah. There 2 had been partition between Doman Sah and his brother, Rup Chand who where the sons of Dorha Sah. Since there had been partition the sons of Rup Chand are made proforma defendants 2 and 3. Doman Sah had a son, Ghurbigan Sah who is defendant appellant no.1. The four plaintiffs –respondents are the sons of defendant no.1 from first wife. The other defendant- appellants are the second wife and two sons of Ghurbigan Sah. 3. According to the plaintiffs they and the defendant no.1 are the members of joint family and defendant no.1 is karta. Abount 3/4 years ago defendant no.1 brought an unknown woman and kept her as concubine and thereafter he started neglecting the plaintiffs. He started drinking wine and smoke ganja and for that started damaging the joint family properties. There was sufficient yield from the agricultural land of the family as such there was no need to take loan or to sell suit land but the defendant no.1 sold the land as described in Schedule-Ga of the plaint. Therefore, the said property be allotted in the share of defendant no.1. On these facts it is claimed that the plaintiffs who are four sons of defendant no.1 have got 4/5th share and the defendant no.1 has got 1/4th share. 4. It appears that the plaint was amended and then defendant no.1ka, 1kha and 1ga were added as defendants. The defendant no.1, Ghurbigan Sah filed the written statement contesting the case. Besides taking various legal pleas he alleged that the plaintiffs no.3 and 4 are the minor sons and, 3 therefore, he is their guardian. Plaintiff no.1, Lalan Singh is Awara. According to him he is not neglecting the plaintiff and that he never transferred the suit property without legal necessity. He has married defendant no.1ka and out of the second marriage he has got two sons, Pramod Sah and Babudhan Sah who are entitled to share in the suit property. 5. It appears that subsequently additional written statement was filed by the defendant no.1 wherein it was stated that Dewanti Devi defendant no.1ka is not a concubine but is legally wedded wife of defendant no.1.After the institution of the suit the defendant no.1. had not sold any land. As karta of the joint family he had taken loan in order to construct house and to meet necessary expenses and in lieu thereof he sold land to Ram Prasad Chaudhary and Dhanbarta Devi. The details of the land sold to Ram Prasad Chaudhary was mentioned in Schedule A to the Additional written statement and the details of the land sold to Dhanbarta Devi was mentioned in Schedule- B of the additional written statement. It is further alleged that the loan taken was spent on the education and well- being of the plaintiffs and also on the marriage of his daughter. For construction of house which was in dilapidated condition he took loan of Rs.10,000/- from Satya Narayan Sah 10 – 12 years ago and because Satya Narayan was his relation no deed was executed. In order to pay interest of the loan the lands described in Schedule-c of the additional written statement was given to 4 Satya Narayan Sah who is in possession. Therefore, this loan is binding on the plaintiffs. 6. The defendant no.1ka, Dewanti Devi, filed contesting written statement alleging that she is the legally married wife of defendant no.1 and not a concubine. According to her written statement Doman Sah had a daughter, named, Kamla Pati who was married with Satya Narayan Sah. But she is not made party in the suit. Therefore, the suit is bad for non- joinder of necessary party. It is further alleged that about 9 years ago she was married with defendant no.1 and thereafter out of the wedlock two sons Pramod aged about 7 years and Babudhan aged about 5 years and one daughter Urmila Kumari were born. It is also alleged that defendant no.1 never drink wine and smoke ganja. All other defence are similar to that of defendant no.1. On the basis of this plea the defendant no.1ka alleged that all the six sons have got equal share and, therefore, it was claimed that 1/4th will go to daughter of Doman and in the remaining land the parties have got equal share. 7. On the basis of this pleadings of the parties the learned court below framed as many as 8 issues. The main issues are Issue no.IV, V and VI. 8. Issue- No.IV :- Is defendant no.1ka Rakhani (concubine) or legally wedded wife of defendant no.1 ? Issue No.V :- Whether defendant no.1 Ghurbigan Sah made transfer of some of the suit lands for legal 5 necessities and for the benefit of the family ? Issue No.VI:- Whether the defendant no.1 had taken loan of Rs.10,000/- from Satyanarayan Sah for the benefit of joint family ? 9. After trial the lower court below came to the conclusion that defendant no.1ka is legally married wife of defendant no.1 and not a concubine and, therefore, Issue No.IV was answered against the plaintiffs. So far Issues No.V and VI are concerned the lower court below held that defendant no.1 had sold the lands described in Schedules A and B of the Additional Written statement for meeting his personal expenses and, therefore, the entire family cannot be held responsible and also held that the story of loan from Satyanarayan Sah is a cooked up story and, therefore, the lands were transferred for his benefit and not for the benefit of the entire family. In view of this finding the learned court below decreed the partition suit to the extent of ½ share of the plaintiffs and ½ share in favour of the defendant-appellants and directed that the properties sold by defendant no.1 shall be allotted in his hare. 10. The defendants appellants have filed this first appeal only against that part of the judgment and decree whereby it is directed that the lands sold by defendant no.1 described in Schedules-A and B of his additional written statement be allotted in the share of defendant no.1 on the finding that it was not for the benefit of family but for his 6 personal expenses. 11. It may be mentioned here that after service of notice the plaintiffs-respondents appeared and filed a cross objection under Order 41 rule 22 C.P.C. within thirty days from the receipt of appeal notice. The said cross objection has been admitted. This cross objection is directed against that part of the impugned Judgment and decree whereby it has been held by the learned court below that the defendant no.1ka, Dewanti Devi (appellant no.2) is the legally wedded wife of defendant no.1 and an equal share has been allotted to her. 12. The learned counsel appearing on behalf of the appellant in support of his appeal submitted that there are overwhelming evidences available on the record in support of the case of defendants that the transfer of suit property made by the defendant no.1 was for legal necessity and for the benefit of the entire family and, therefore, while decreeing the suit for partition the learned court below should have directed that the partition be made after excluding those lands but wrongly the learned court below has directed that those lands be allotted in the share of defendant no.1 wrongly finding that it was not for legal necessity but for his personal necessity. The learned counsel for the appellant further submitted that the plaintiffs respondents have failed to show that defendant no.1 was addicted to wine and ganja and, therefore, the finding that the lands were sold for his personal expenses is wrong which is 7 liable to be set aside. The learned counsel further submitted that cross objection filed by the respondents has got no merit on the facts and, therefore, the same is liable to be dismissed. 13. On the other hand, the learned counsel for the respondents not only supported that part of the judgment and decree against which the defendants have filed this first appeal but also assailed that part of the judgment and decree against which the plaintiffs have filed the cross objection. The learned counsel against this first appeal filed by the defendants – appellants submitted that even during the pendency of this first appeal in spite of the injunction order the appellants have sold more than their ½ share allotted by the impugned order and decree and a separate contempt application being M.J.C. No.22 of 2008 had been initiated against the appellants. The learned counsel further submitted that after considering all the materials available on record oral as well as documentary the learned court below has come to the conclusion that the transfer made by defendant no.1 is for his personal expenses and not for legal necessities and not for benefit of the family and, therefore, the learned court below has rightly directed that the transferred lands be allotted in the share of defendant no.1. 14. In support of the cross objection the learned counsel submitted that there is no reliable evidence adduced by the appellants to prove the fact that Dewanti Devi defendant no.1k is legally wedded wife of Ghurbigan Sah, the defendant 8 no.1ka and, therefore, the learned court below has wrongly found the same and has wrongly allotted her an equal share in the suit property. On these grounds the learned counsel for the respondents submitted that the appeal is liable to be dismissed and the cross objection filed by the respondents is liable to be allowed. 15. In view of the above facts and circumstances and submissions of the parties the points arise for consideration in this first appeal are one raised by the appellants in the first appeal and the other raised by the plaintiffs-respondents in the cross- objection, i.e.:- I. Whether the lands transferred by the defendant no.1 as mentioned in detail in Schedule-A and B in his additional written statement was for legal necessity and for benefit of the entire family and, therefore, binding on the plaintiffs and the findings of the learned court below on this issue is correct ? II. Whether the defendant no.1ka, the appellant no.2 Dewanti Devi is legally wedded wife of defendant no.1 and is entitled to equal share in the suit property and the finding of the learned court below on this point is correct ? FINDINGS 16. Point No.I : Before discussing the merits of this case it is necessary to mention here the evidence adduced by the parties. The plaintiffs have examined seven witnesses. 9 Out of them P.W.1 Rajnath Singh, P.W.2 Jawahar Singh are formal in nature. The defendants have examined 8 witnesses. Out of the said witnesses D.W.1 Kameshwar Prasad has proved the sale deed Ext.A executed by Ghurbigan Sah in favour of Dhanbarta Devi and also the sale deed Ext.A/1 executed by Ghurbigan in favour of Dhanbarta Devi. The defendants have produced Exts.A and A/1 which are the registered sale deeds. Exts.B and B/1 which are Haraswacope of Pramod Sah and Babudhan Sah, the appellants no.3 and 4. 17. Now it stands admitted that the plaintiffs – respondents are the four sons of defendant no.1. The only disputed question to be decided is as to whether Dewanti Devi is legally wedded wife of defendant no.1 and is entitled to equal share in the suit property. Therefore, they each have share in the suit property which was inherited by their father the defendant no.1 appellant no.1 Ghurbigan Sah which he got in partition from his brother. The allegation is that defendant no.1 made some transfers of land through Exts.A and A/1. Axts.A and A/1 are dated 26.5.1981. It may be mentioned here that the suit was filed on 10.4.1981. Now, therefore, it is clear that the sale deeds have been executed by the defendant no.1 after institution of the suit. The defendants in the written statement pleaded that the defendant had not sold any land. As karta of joint family he had taken loan in order to meet necessary expenses and in lieu thereof he transferred the lands as mentioned in detail in 10 schedules – A and B of his written statement. According to him he took loan for constructing the house which was in dilapidated condition which he got in partition. He took the said loan of Rs.10,000/- from Satyanarayan Sah 10 -12 years ago and in order to pay interest possession of the lands was given to him. On the contrary it is the case of the plaintiff that there was sufficient produce from the joint lands which are two fasli lands and, therefore, there was no need of taking loan. It may be mentioned here that in the subsequent written statement it was pleaded that the lands were transferred for meeting the expenses of the marriages of his daughters and meeting the expenses of education of the plaintiffs and for construction of the house. 18. As stated above the Exts.A and A/1 produced by the defendants are the registered sale deeds which have been executed and registered after the institution of the suit. From perusal of the sale deed, Ext.A, it appears that the legal necessity mentioned in the sale deed is for purchasing house and meeting the house- hold expenses. So far Ext.A/1 is concerned no reasons have been assigned as to for what purpose the lands have been sold. D.W.4 Satyanarayan Singh who is husband of Dhanbarta Devi has stated that in the year 1975-76 he had advanced Rs.12,000/- to the plaintiffs – defendants for constructing house and in lieu thereof the lands have been sold in the name of dhanbarta Devi. He in his evidence has stated that 15 years ago the second daughter of 11 Ghurbigan was married. This witness is unable to say about the marriage of 3rd daughters of Ghurbigan. Therefore, from his evidence according to him he advanced loan of Rs.12,000/- .D.W.7 has stated that he had taken loan for marriage of his daughter, for construction of the house and for education of the plaintiffs. As stated above D.W.4 said that he had advanced loan of Rs.12000/-. As stated by the D.W.4 much earlier the daughters of Ghurbigans were married. Had the defendant no.1 taken any loan of such huge amount there must have been some documents. But no such documents are brought on record in support of this fact. Moreover, in the sale deeds the fact that the consideration amount had already been paid in 1974-75 has not been mentioned. Further the plaintiff, Lalan Sah has read up to class-VII whereas the plaintiff Baban Sah has read up to Class- IV. The plaintiff Dadan was reading in Class-II and other plaintiff was not going to school. In paragraph no.19 of his evidence the defendant no.1 has stated that 15 years ago he married his first daughter when he had taken loan of Rs.5000/- from Ram Prasad Choudhary. Three years thereafter he got his second daughter married when he took loan of Rs.12,000/- from Satyanarayan Sah. In paragraph 20 he had stated that for meeting the expenses of marriage of his daughter he took loan of Rs.10,000/- from Satyanarayan Sah. It may be mentioned here that the sale deeds in favour of the wife of Satyanarayan Singh have been proved as Exts.A and A/1. The defendants 12 have not produced the alleged sale deed in favour of Ram Prasad Choudhary. It is the case that Scheduel-A of additional written statement have been sold to Ram Prasad Choudhary. 19. From the discussion of the evidences adduced by the defendants-appellants regarding taking loan for meeting expenses of the marriage of the daughters and or for construction of the house or for meeting expenses of studies of of the plaintiffs is concerned there is no supporting documentary evidences. As stated above nothing has been mentioned in the registered documents Exts.A and Ext.A/1 as stated above the plaintiff no.3 only going to school likewise regarding loan of Rs.10,000/- from Satyanarayan Sah no document has been produced. 20. As stated above it is admitted fact that the lands in suit are ancestral lands and the plaintiffs have got share by birth. The properties have been sold during the pendency of the suit. Therefore, the defendant no.1 was required to prove by adducing cogent and reliable evidence in support of the case that the transfer was for legal necessity as mentioned by him. The legal necessity mentioned in Ext.A is that the property was sold for purchasing house and meeting expenses for house hold affairs. There is no evidence adduced by the defendant as to which house was purchased on the consideration amount. The legal necessity pleaded in the written statement is not supported by the documents. Further the suit property about 13 ½ bigha. 13 D.W.6 has admitted that the lands of Ghurbigan are two fasli. The defendant no.1 in his evidence (D.W.7) at para 22 has admitted that the family has got 13 ½ bigha which are cultivated twice in a year and are irrigated lands. It is not the case of defendant that the products from these lands are not sufficient to meet the expenses of the joint family. On the contrary according to the plaintiffs there are sufficient yield from these lands. 21. In view of the above discussion of the evidences it appears that the legal necessity pleaded by the defendant no.1 cannot be accepted for the reasons that there is no supporting documentary evidence. It appears that the defendant is trying to explain the reasons for transfer of the suit land after institution of the suit. But he has failed to do so. The defence regarding loan appears to be not acceptable for the reasons that no documentary evidence has been proved. The oral evidence that much earlier loan was advanced cannot be accepted because those statements are wanting in the sale deed. 22. In view of my above consideration I find no force in the submission of the learned counsel appearing on behalf of the appellants. I, therefore, find that the defendants appellants have failed to prove that the lands were transferred by defendant no.1 for legal necessity. Therefore, learned court below has rightly directed that the lands transferred by defendant no.1 as mentioned in detail in Schedules –A and B of 14 additional written statement be allotted to defendant no.1. In such view of the matter the findings of the learned court below on these points are hereby confirmed. The point no.I is answered against the appellant. 23. Point No.II:- Regarding the fact that Dewanti Devi is a concubine or legally wedded second wife of Ghurbigan the plaintiffs have adduced evidence in negative. The plaintiff witness no.3 has stated that since last 4-5 years Ghurbigan is keeping a woman. Such is the evidence of P.Ws.4 to 7. Therefore, as stated above according to them a woman is living with defendant no.1. On the contrary the defendants have examined the witness in support of the marriage of defendant no.1 with Dewanti Devi. D.W.2 is plaintiff no.3, namely, Dadan Sah who on the date of examination was aged about 12 years has admitted that his father had married Dewanti Devi. D.W.5 Dewanti Devi and D.W.7 Ghurbigan have stated that she is legally wedded wife. Dewanti Devi in her evidence has also stated that Ajay Pandit and Baban thakur had performed the marriage ceremony. She denied that she is a kept. D.W.6 has stated that he had attended the marriage of Ghurbigan and Dewanti Devi. D.W. 8 Nagendra Nath Mishra has stated that his cousin Anirudh Mishra had taken part in the second marriage of Ghurbigan. Therefore, the defendants have adduced cogent evidence which are positive in nature. The witnesses have stated that from wedlock two sons have been begotten. The 15 plaintiff no.3 has admitted the fact of marriage of Dewanti Devi with his father. The plaintiff witnesses have also stated that since last 4 / 5 years Dewanti Devi was living with Ghurbigan. Therefore, there was legal presumption in the eye of law regarding valid marriage. No doubt this legal presumption is rebuttable but the plaintiffs failed to rebut the presumption . On the contrary the defendants have adduced positive evidence which are reliable. The Exts.B series have been produced to show that the two sons have been born from the wedlock. In view of the above discussion I find that the defendants have been able to prove that Dewanti Devi is legally wedded wife of Ghurbigan. Accordingly, the finding of the learned court below on this point is hereby confirmed. The point no.2 is answered in favour of the appellants and against the respondents. Accordingly, I come to the conclusion that the cross objection filed by the plaintiff respondents has got no merit. Therefore, the cross objection is dismissed. 24. During the pendency of this first appeal injunction application was filed by the plaintiff-respondent and by terms of order dated 14.7.1988 the defendants appellants were restrained from selling away the suit land. This Court directed that whenever any one of the parties wants to sell any part of the suit property they shall obtain permission from this Court and also observed that the sale be confined within the limit of the share adjudicated by the court below. In spite of the 16 said order the appellants sold the properties without obtaining permission from the court. Earlier the defendant no.1 executed gift deed in favour of appellants no.3 and 4 on 3.11.1990 in contravention of the injunction order. M.J.C. No.1412/1995 was filed which was ultimately disposed of by order dated 19.7.1996 holding that the properties have not been sold rather it has been gifted. It appears that on 15.5.1995 the appellants no.1,3,4 and Ram Pravesh Sah, the other son of appellant no.1 sold but that fact was not disclosed by the appellants and the respondents had no knowledge. Subsequently on 16.6.1997 the appellants executed another registered sale deed because of the violation made by the appellants M.J.C. No.22/08 was registered on the basis of application filed under Order 39 rule 2A C.P.C. During course of hearing another reply on behalf of the plaintiffs was filed which was reply to the counter affidavit by the contemnors. In this reply it has been mentioned that the appellants have sold 3.72 acres of land prior to 14.7.1988. After 14.7.1988 they had again sold 22 ¼ acres of land. 25. It stands admitted now that all the transfers have been made by the appellants after institution of the suit and some of the transfers have been made during the pendency of the appeal and some transfers have been made after passing injunction order by this Court. Even according to the orders passed