(1) SA. 227.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 227 OF 2009 1] Navnath Uttreshwar Dhalgade, Age : 32 years, Occu.: Agriculture 2] Balasaheb Uttreshwar Dhalgade, Age : 29 years, Occu.: Agriculture 3] Kamalabai Uttreshwar Dhalgade, Age : 65 years, Occu.: Household 4] Uttreshwar Mahadev Dhalgade, Age : 70 years, Occu.: Agriculture All No. 1 to 4 R/o Kadaknathwadi, Tq. Washi, Dist. Osmanabad .. Appellants VERSUS 1] Namdev Keshav Dhalgade, Age : 65 years, Occu.: Agri. 2] Manmath Mahadeo Dhalgade, Age : 58 years, Occu.: Agri., 3] Vasudo Uttreshwar Dhalgade, Age : 37 years, Occu.: Agri., 4] Haridas Kisan Bhatlawande, Age : 58 years, Occu.: Agri., 5] Gorakh Uttam Pawar, Age : 45 years, Occu.: Agri., 6] Subrav Uttreshwar Dhalgade, Age : 35 years, Occu.: Agri., All 1 to 6 R/o. Kadaknathwadi, Tal. Washi, Dist. Osmanabad .. Respondents Mr. V.D. Hon, Advocate for the Appellants Mr. S.S. Jadhavar, Advocate for the respondent nos.1 and6 Mr. Vijay B. Jagtap, Advocate h/f. Mr. V.A. Jadhav, Advocate for respondent no.3 ... (2) SA. 227.2009 CORAM : K.U. CHANDIWAL, J. DATED : 30TH APRIL, 2010 PER COURT:- 1] Heard learned counsel for the appellants/plaintiffs. The plaintiffs feel aggrieved by the decree dated 20.6.2000 by the IInd Joint Civil Judge Judge Junior Division, Kallam partly decreeing the suit and dismissing the same in respect of certain agricultural field. The matter was taken before the first appellate Court being Regular Civil Appeal no. 134 of 2000 and the learned District Judge-1, Osmanbad by order dated 29.8.2006 did not find favour with the contention of the plaintiffs, resulted in dismissal of the first appeal and hence the plaintiffs assail both the judgments. 2] Grievance and submissions from Mr. Hon, is that there is no proper appreciation of evidence by both the Courts in respect of the legal necessity by defendant no.3 who was addicted to vices on the material time to dispose of agricultural property in which the plaintiffs have share. The suit challenges the sale deeds executed by the defendant no.3. 3] On analysis of the evidence as is recorded in paragraph 24 by the learned Judge of the first instance, he has elaborately discussed as to under what circumstances the sale deed was executed by the (3) SA. 227.2009 brother of the plaintiff-defendant no.3 in favour of the purchasers. It was a family arrangement creeped in by virtue of Regular Civil Suit no. 3 of 1967 which was a compromise inter-se in relation to the mutation entries between the defendant no.3 and it showed that plaintiff no.5 father had lost interest in the family affairs. The Courts also found that plaintiff no.2 was born on 25.9.1957 established through D.W. 2 Head- master, and the sale deed dated 29.4.1980 is binding upon him and he was estopped from challenging the validity of the sale deed as he was the author of the sale deed and it cannot be said that he was a minor. The Court found that he was 23 years old on the day of execution of the sale deed. These are the findings of facts by the Courts. 4] The observations of the Court of first instance having discussed, does not demonstrate any perversity or illegality in the matter. The law on the point of legal necessity is well recognized in the matter of Smt. Rani and anr. V. Smt. Santa Bala Debnath and others AIR 1971 SC 1028, wherein the Their Lordships have held "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 (4) SA. 227.2009 and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity." The Apex Court has held that "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." Both the Courts found that the loans were advanced to the family for the welfare of its' members, debt was to be repaid cleared and marriage of sister was also to be performed. These aspects certainly constitute legal necessity for the brother to dispose of the property. 5] It can not be said nor it is proved that defendant no.3 was addicted to vices and disposed of the property surrounded with vices and without any legal or reasonable cause. The slumber in challenge shown by the appellants also speaks volumes against them. The Second Appeal does not inspire to project substantial question of law, hence dismissed. No costs. Sd/- (K.U. CHANDIWAL, J.) arp