IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) R.S.A. No.2526 of 2004 Gurdev Singh. ....... Appellant through Shri Jai Bhagwan, Advocate. Versus Harmesh Ram and others. ....... Respondents through Shri Amarjit Markan, Advocate. (2) R.S.A. No.2528 of 2004 Gurdev Singh. ....... Appellant through Shri Jai Bhagwan, Advocate. Versus Harmesh Ram and others. ....... Respondents through Shri Amarjit Markan, Advocate. Date of Decision: 10.02.2010 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. By this judgment, the above mentioned two Regular Second Appeals, which have been preferred against judgments and decrees dated R.S.A.No.2526 of 2004 -2- .... 3.3.1998 and 12.3.2003 passed by the Civil Judge (Senior Division), Sangrur (hereinafter referred to as `the trial Court') and the Additional District Judge, Sangrur (described hereinafter as `the first appellate Court'), are being disposed of as common questions of law and fact are involved therein. Isher Ram (now dead and represented by his legal representatives) and Kaveesar Ram, sons of Ram Partap had filed a suit for declaration and permanent injunction against Gurdev Singh, (present appellant), Ram Partap and Jagan Nath (their father and brother). It was pleaded that the sale deed no.520 dated 25.5.1987 executed by Ram Partap in favour of Gurdev Singh in respect of land measuring 16 Bighas Kham, i.e., 5 Bighas 6 Biswas 13 Biswansi Pukhta, which was 2/3rd share of land measuring 8 Bighas Pukhta comprised in khewat no.242, Khatauni No.428, Khasra No.619/4-0 and 625/4-0, situated in village Balian as per jamabandi for the year 1985-86 was null & void, without any legal necessity and not binding on them. It was further pleaded that the suit property was ancestral in nature and the plaintiffs were coparceners therein; that Ram Partap was addicted to vices and was playing in the hands of undesirable persons; that earlier also, Ram Partap had tried to alienate the suit property forcing the plaintiffs to file a suit for permanent injunction; that the said suit was decreed by the Court of competent jurisdiction and Ram Partap was restrained from alienating the suit property on 13.2.1985 except for legal necessity; that Ram Partap was given to profligate habits and was bent upon to dispose of the coparcenary property; that he, in that process, had R.S.A.No.2526 of 2004 -3- .... executed the sale deed in question without any legal necessity because he was about 100 years old and lacked mental facilities; that Gurdev Singh had taken advantage of the same and had played fraud on him in collusion with Bhagwan Singh and Balbir Singh; that the said persons are relatives of Gurdev Singh and had attested the sale deed in question; that one Roop Chand was introduced as son of Ram Partap from his third marriage which was incorrect and in fact, Jagan Nath son of Ram Partap is married to the sister of Roop Chand and the latter is the son of Ram Saran and not the son of Ram Partap; that the plaintiffs were in possession of the suit property and on the basis of the sale deed in question, Gurdev Singh etc. were out to take possession thereof. Thus, the plaintiffs had prayed that the sale deed be set aside and Gurdev Singh etc. be restrained from dispossessing them and from alienating the suit property in any form on the basis of the sale deed in question. Upon notice, Gurdev Singh appeared and filed his written statement defending the sale deed in his favour and pleaded that he was in possession of the suit property. It was further pleaded that a suit was filed by Ram Partap seeking possession of the suit property; that the plaintiffs had filed a written statement therein admitting the fact that 16 Bighas kham land was in possession of Ram Partap, who had sold the same vide the sale deed in question wherein it was mentioned that the possession thereof was already with Gurdev Singh; and that during the pendency of the instant suit, the possession of the suit property was forcibly taken by the plaintiffs. The sale deed in question was stated to be a valid document executed for R.S.A.No.2526 of 2004 -4- .... consideration of Rs.96,000/- and it was pleaded that Ram Partap had no source of income except the suit property and he had sold the same in order to maintain himself. It was next pleaded that after the execution of the sale deed, Ram Partap had applied for lease of a plot of land from Gau Rakshak Mandal, Sangrur for constructing a house, which lease at a monthly rent of Rs.50/- was granted to him and an agreement in that behalf was executed and three months' advance had also been paid and the possession of the said plot was taken by Ram Partap for constructing a house thereon. It was averred that Ram Partap died thereafter, but before his death, he had applied to the Municipal Committee, Sangrur for construction of a house on the plot taken by him on lease and had also submitted a plan for that purpose which was sanctioned vide order dated 30.9.1987. It was further averred that Ram Partap had also entered into an agreement dated 31.8.1987 to purchase 4 Bighas pukhta land from Bakhshish Singh for a total consideration of Rs.65,000/- out of which Rs.15,000/- were paid as earnest money. Ram Partap was also stated to have paid an amount of Rs.3000/- to Roop Chand, his son, for his last rights in case of death. It was, thus, sought to be contended that Ram Partap had alienated the suit property for legal necessity. In his counter-claim, Gurdev Singh had reiterated the averments made in the written statement and prayed that a decree of possession qua the suit property be passed against the plaintiffs and in his favour. Ram Partap, who remained alive for about two years after the R.S.A.No.2526 of 2004 -5- .... execution of the sale deed in question, filed a written statement pleading therein that the suit property was sold by him to Gurdev Singh for legal necessity and that he had received the amount of Rs.96,000/- in lieu thereof. Roop Chand was also stated to be his son from his third wife- Jamna Devi. It was averred that the plaintiffs had turned him out of the house and he was reduced to a state of destitution and poverty. The other allegations of the plaintiffs were denied and the averments made by Gurdev Singh in his written statement were supported by Ram Partap. Jagan Nath, another son of Ram Partap, who was arrayed as defendant no.3, had filed his separate written statement reiterating the averments made by Gurdev Singh and Ram Partap. In addition, he pleaded that being a man of very poor means, he was unable to maintain Ram Partap. On the pleadings of the parties, the following issues were framed:- 1. Whether Roop Chand is son of Ram Saran of village Alumna?OPP 2. Whether the plaintiffs are in possession of the suit land?OPP 3. Whether the sale deed dated 25.5.1987 is for consideration and legal necessity?OPD/1 4. Whether Roop Chand is son of Ram Partap and is necessary party? If so its effect?OPDNo.2 R.S.A.No.2526 of 2004 -6- .... 5. Whether the suit for mere declaration is not maintainable?OPD 6. Whether the plaintiffs are entitled to injunction prayed for?OPD 6A. Whether Gurdev Singh defendant no.1 committed fraud on deceased Ram Partap Singh as alleged in para No.11 to the amended plaint? If so its effect?OPP 6B. Whether the defendant/counter claimant Gurdev Singh is entitled to possession of the land mentioned in counter claim as alleged?OPD/Counter claimant defendant No.1. 6C. Whether counter claimant is entitled to injunction as prayed for?OPD-I Counter claimant. 6D. Whether/defendant counter claimant is entitled to alternative relief of joint possession of 2/3rd share as alleged in the counter claim?OPD Counter claimant. 6E. Whether the judgment in civil appeal No.123 decided on 21.4.93 operates res judicata as alleged in replication?OPP 7. Relief. After appraisal of the entire evidence on record, the trial Court, as also the first appellate Court concluded that the sale deed, Exhibit D1, was a fraudulent transaction and that it was not for legal necessity. It was further concluded that there was no question of dispossessing the appellant from the suit property during the pendency of the suit. Accordingly, the suit was decreed and the counter-claim of the appellant, as also his appeals were R.S.A.No.2526 of 2004 -7- .... rejected. Feeling dis-satisfied, the appellant has instituted these two separate appeals, one against the decree having been passed in favour of the plaintiffs and the other the decision rejecting his counter-claim. Learned counsel for the appellant has contended that there was a clear-cut recital in the sale deed, Exhibit D1, in which Ram Partap had stated that he was not being taken care of by the plaintiffs and was being forced to live in the house of Roop Chand, who had set down his cot in the open court-yard and this was creating extreme difficulties for him in the old age and that he wanted to buy a piece of land and construct a house thereon. It was next contended that in view of this recital in the sale deed, the legal necessity stood adequately proved and that once a valid document had been executed for legal necessity, the plaintiffs' claim that the same was a sham transaction was without any merit and the suit deserved to be dismissed. In support of this contention, he placed reliance on a judgment of the Supreme Court in Smt.Rani and another Versus Smt.Santa Bala Debnath and others, AIR 1971 S.C. 1028, wherein it was held as under:- “Legal necessity does not mean actual compulsion; it means pressure upon the estate which in law may be regarded as serious and sufficient. 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 bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in R.S.A.No.2526 of 2004 -8- .... a deed of legal necessity do not by themselves prove legal necessity. The recitals are,however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals goto his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession. xx xx xx xx xx xx xx A sale deed executed by a widow, a limited owner, in respect of joint family property contained recital that sale was for legal necessity. Circumstances proved in suit to set aside sale also corroborated the fact of legal necessity. Eldest son of the widow also participated in execution of the sale deed and it was not proved whether he was minor or major at that time. xx xx xx xx xx xx xx xx R.S.A.No.2526 of 2004 -9- .... Sale could not be set aside as legal necessity was amply proved.” It was next argued by the learned counsel for the appellant that the findings recorded by the Courts below are erroneous as they have tried to trace out the utilization of the sale consideration while assessing the plea of legal necessity. It was contended that once the sale deed had been executed for a valid consideration, whether the vendor utilized the amount for the particular purpose which was mentioned in the recitals as a legal necessity or not, could not be gone into by the Court and further by itself if the amount was not utilized for the said purpose, it cannot be said that the sale was not for legal necessity. He urged that the appellant was a bona fide purchaser for consideration and, therefore, the suit of the plaintiffs was liable to be dismissed. To support this contention, he relied upon a judgment of this Court in Prem Singh and others Versus Dharam Singh, 2005(1) P.L.R. 334 (P&H), wherein a learned Single Judge while analysing various judgments of the Supreme Court, has observed as under:- “The alienation of joint family property by Karta for value is valid if the same is for legal necessity or for the benefit of the estate, without consent of other adult members. This principle is recognized in para 242 in well-known treatise on “Principles of Hindu Law” by Mulla (Sixteenth Edition). In para 244 of the said treatise, it is stated that burden is on a purchaser to prove that there was a legal necessity in fact or that he made a proper and bona fide enquiry as to existence of such necessity R.S.A.No.2526 of 2004 -10- .... and did all that was reasonable to satisfy himself as to existence of such necessity. Such burden is discharged once the vendee shows that there was a bona fide transaction and the vendee had made enquiries about the legal necessity of the vendor. A vendee is not required to show actual use of money by the vendor. The vendor may not actually use the money at all.” Learned counsel for the appellant then submitted that this Court ought to interfere in the findings recorded by the Courts below as the same are perverse and the provisions of Section 100 of the Code of Civil Procedure,1908 warrant interference if a substantial question of law arise in that regard. To support this submission, he relied upon Kulwant Kaur and others Versus Gurdial Singh Mann (Dead) by Lrs. and others, (2001) 4 S.C.C. 262 (S.C.) and Ajit Singh Versus Kirpal Singh, 2003(1) R.C.R. (Civil) 602 (P&H). On the other hand, learned counsel for the respondents strongly resisted the contentions of the learned counsel for the appellant and submitted that the sale deed was a sham transaction as the same was never proved in accordance with law and even the passing of sale consideration was not proved. He further submitted that the entire evidence on record does not show the passing of sale consideration and the only two witnesses who were produced in support of the execution of the sale deed, i.e., DW1- Jawahar Lal Goel, Deed Writer and DW5-Bhagwan Singh, only testified that the document was executed. He contended that the combined reading R.S.A.No.2526 of 2004 -11- .... of the testimony of both these witnesses does not establish that any amount was paid to Ram Partap for the execution of the sale deed and, therefore, the said document is shrouded with suspicious circumstances as DW5- Bhagwan Singh was the uncle of the appellant, whereas the other attesting witness,namely, Balbir Singh was his relative. He next contended that in the sale deed, a recital had been made regarding the handing over of the possession of the suit property to the appellant which was not established because of the fact that Ram Partap had earlier filed a suit for possession against the plaintiffs admitting their possession and even the revenue records speak of this fact. Learned counsel for the respondents argued that the recital which is contained in the sale deed could not be said to prove legal necessity in view of the settled proposition of law that legal necessity can be construed only in the eventualities which have been delineated in paragraph 243 of the Principles of Hindu Law, which is to the following effect:- “243. What is legal necessity.- The following have been held to be family necessities within the meaning of para 242:- (a) payment of Government revenue and of debts which are payable out of the family property(a); (b) maintenance of coparceners andof the members of their families (b); ( c ) marriage expenses of male coparceners(c), and of the daughters of coparceners(d); R.S.A.No.2526 of 2004 -12- .... (d)performance of the necessary funeral or family ceremonies (e); (e) costs of necessary litigation in recovering or preserving the estate(f); (f) costs of defending the head of the joint family(g), or any other member (h) against a serious criminal charge; (g) payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt(i).” Learned counsel for the respondents further argued that in view of the fact that the sale was not for one of the contingencies contemplated in the Principles of Hindu Law, the sale deed cannot be said to be for legal necessity as it was never made for betterment of the ancestral property and not for the benefit of the coparceners. To support this argument, he placed reliance on Nirmal Singh and another Versus Satname and others, AIR 1960 Rajasthan 313 ; Hem Raj and Ors. Versus Mehtab Singh and Ors., 1983(II) All India Land Laws Reporter 315 (P&H); Manohar Lal and another Versus Dewan Chand and others, 1985(1) P.L.R. 689 (P&H) (F.B.); B.Ranga Rao Versus G.Venkata Krishna Rao, 1995(3) R.R.R. 273 (A.P.) and Ram Jiwan Versus Heera Lal, 2001(4) R.C.R. (Civil) 278 (P&H). With some vehemence and with reference to the evidence on record, it was pointed out by the learned counsel for the respondents that the possession continued to be with the plaintiffs and that Ram Partap was a R.S.A.No.2526 of 2004 -13- .... wayward person and that is the reason why they had to file earlier suit seeking him to restrain from alienating the ancestral property, which was decreed and he was restrained from doing so and that since the legal necessity does not stand established in so far as the sale deed in question is concerned and passing of consideration has also not been proved, the alleged sale deed deserved to be set aside and it has rightly been discarded by the Courts below. Learned counsel for the respondents pointed out that reliance has been placed by the appellant on Exhibit D12 to claim possession as a tenant, but a perusal of this document shows that he has not been shown as a tenant and only his father has been stated to be in cultivating possession and had he been a tenant, he would have been shown in column no.9 thereof. In any eventuality, learned counsel for the respondents, contended that the subsequent proof in the shape of judgment dated 3.9.1986 (Exhibit P2) which was pursuant to the suit filed by Ram Partap seeking possession of the suit property, the decree, Exhibit P3, copy of jamabandi, Exhibit P5, khasra girdawaris, Exhibits P6 & P7, amply shows that the plaintiffs are in possession of the suit property. I have thoughtfully considered the rival contentions/ submissions/ arguments and have perused the impugned judgments and the relevant record. In my opinion, the following two questions arise for the consideration of this Court:- 1. Whether the sale deed in question is a valid document and R.S.A.No.2526 of 2004 -14- .... was executed for consideration? 2. Whether the sale was for legal necessity? There is no dispute that the suit property was coparcenary. On an earlier occasion, the plaintiffs had filed a suit against Ram Partap seeking an injunction that he should be restrained from alienating the coparcenary property without legal necessity which was decreed. Ram Partap then filed a suit for possession which suit was dismissed and the possession of the plaintiffs was found as a matter of fact. In any eventuality, the very fact that a suit for possession was filed, shows that the possession of the plaintiffs stood established. The appellant, by way of counter-claim, had pleaded that he had been dispossessed during the pendency of the suit. No evidence was led by him to establish this fact. In such an eventuality, this Court is left with no other option but to conclude that in so far as the possession of the suit property is concerned, it continues to be with the plaintiffs. Now, the next question is regarding the validity of the sale deed in favour of the appellant. It transpires from the perusal of the entire evidence on record that the appellant has failed to show that any consideration was paid to Ram Partap in lieu of the sale of the suit property, which crates a suspicion regarding the execution of this document. The suspicion is further strengthened by the fact that DW5-Bhagwan Singh, who is the only attesting witness, who has been produced, has stated that the amount of Rs.96000/- was to be paid to Ram Partap before the Sub Registrar at the time of registration. Apart from this solitary statement, R.S.A.No.2526 of 2004 -15- .... there is no other evidence to show that such amount had been paid to Ram Partap. If the testimony of DW5 is to be seen further, then it is to be noticed that he was not present before the Sub Registrar and whether the said amount was paid or not, cannot be conclusively established from his statement. He pleaded ignorance about the person from whom the stamp papers were purchased for the execution of the sale deed, even though the same were purchased on the same day and he merely stated that the sale deed had already been scribed when he reached and that the same was read over to him by the scribe, but on further cross-examination, he stated that the sale deed had been read over by the scribe to Ram Partap, but he could not state as to what was told by Ram Partap to the scribe. This witness further deposed that he remained with the scribe for half an hour during which the sale deed was completed, i.e., signatures were put,but he did not remember anything else about the contents of the sale deed. No person from the office of Sub Registrar was produced, who could testify that the sale consideration had been paid in the presence of the Sub Registrar. The appellant has also not made any attempt to show from where he had obtained the sale consideration. The evidence in this regard, therefore, remains short of the one from which a positive conclusion could be derived. Therefore, I am of the opinon that the sale deed does not inspire any confidence and it is apparently a sham transaction as passing of sale consideration was not proved. This factor assumes more significance when the nature of the suit property was concededly coparcenary. The plaintiffs were making attempts for restraining Ram Partap from alienating it, who R.S.A.No.2526 of 2004 -16- .... was out to do so. It is also apparent that the parties were at loggers head. If the recitals in the sale deed regarding the same being for legal necessity are to be accepted, then it cannot be said that the sale was not for legal necessity. But, this question is academic because of the fact that the sale has been held to be invalid for other reasons. Legal necessity as contemplated under the Principles of Hindu Law also means the maintenance of coparceners which includes a Karta also. In the given set of circumstances, if the Karta in his old age has been abandoned by the family to fend for himself, then it cannot be said that he is precluded from disposing of the coparcenary property for maintaining himself. But, in view of the fact that in the foregoing paragraphs, this Court has already