RSA No.163 of 1995 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.163 of 1995 (O&M) Date of Decision: 21.11.2011 Harcharan Singh son of Major Singh son of Piara Singh, resident of Maur, Patiala, Tehsil Barnala, District Sangrur and others. ... Appellants Versus Sarabjit Singh son of Jarnail Singh, resident of Maur, Patiala, Tehsil Barnala, District Sangrur and others. ... Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:Mr. Amarjit Markan, Advocate for the appellants. None for the respondents. ***** 1.Whether reporters of local papers may be allowed to see the judgment? NO 2.To be referred to the reporters or not? YES 3.Whether the judgment should be reported in the digest? YES K. KANNAN, J. (Oral) 1. The contesting defendants, who had purchased the property from the 5th defendant are the appellants before this Court. The 5th defendant's sons challenged the alienation made by the father on 16.05.1986 in respect of the portion of the property stating that the property was the absolute property of the 5th defendant and that in any event, the sale had been made by the 5th defendant for a consideration of `10,000/- for valid necessities. The trial Court as well as the appellate Court have found that it was a matter of admission not merely by the 5th defendant but also by the contesting defendants themselves that the property was ancestral. The trial Court had referred to RSA No.163 of 1995 (O&M) [2] the categoric admission of DW-2 Hari Singh that the suit land was an ancestral property, which Jarnail Singh got from his father Karam Singh. He latter held the property in common along with his brother Major Singh. The trial Court and the appellate Court, therefore, held that in view of the admission and the revenue record showing that the property had been entered in the Jamabandi as belonging jointly to the 5th defendant's father Karam Singh and his brother Major Singh to an extent of 5/12th share, the plaintiffs had established that the property was the ancestral property. The finding of the trial Court and appellate Court as regards the character of property has come through proper appreciation of oral evidence and I find that there is nothing substantial to urge as a proposition of law to dislodge the finding given by the trial Court and the appellate Court regarding the character of property. 2. If the properties were to be taken as the ancestral properties in the hands of the 5th defendant, the father as a Karta had no doubt a right to sell the property to bind the junior members also, so long as the sale could be supported by the legal necessity or family benefit. Legal necessity is understood as such necessity, which is in the nature of a requirement for any debts binding on the family or valid expenses incurred antecedent to the sales. An immediate impending debt would also be relevant to consider whether there was a pressure on the estate that impelled the father to sell the ancestral property. 3. The proof of such necessity is on the purchaser to support his own purchase and in this case, the attempt of contesting defendants was to show that the father was contesting a murder case and he had borrowed some money from the defendant's father Major Singh. It was also contended that the family had borrowed some money for marriage RSA No.163 of 1995 (O&M) [3] expenses of the daughter. The trial Court has found that the sale deed itself did not make any such recital on any debt. The sale deed refers to cash consideration of `10,000/- out of which `4,000/- was said to have been paid before the Registering Officer. The trial Court has observed that the debt, if it had existed is ought to have been recited in the sale deed itself. It has also adverted to the evidence as artificial adduced on the side of the defendants that the scribe was asked to make a recital regarding the debt but he omitted to do so by mistake. The trial Court has, therefore, reasoned that generally speaking the purpose of the sale of land is often incorporated in the sale deed and if it is not so recited and sought to be brought through evidence for the first time, it cannot be given any weightage. The Court has also observed that so called debt for solemnization of the marriage was also not proved to have been the cause for the sale. 4. The learned counsel appearing for the purchasers- appellants contends that a bona fide inquiry by purchasers need not be to the extent of seeing whether the amount, which was borrowed for a necessity, was in fact applied for such necessity. The point is too well established in law that a purchaser needs to satisfy himself about the existence of such necessity. If the proof of necessity existed then, the manner of application of consideration money for such necessity could be a matter of legal inference. In this case, there is not even a reference to necessity in the sale deed. The purchasers were trying to bring a necessity, which was not referred to in the transaction. The trial Court was, therefore, justified and the appellate Court was, therefore, correct in affirming such a view that the necessity had not been proved and the same was, therefore, not binding on the plaintiffs. RSA No.163 of 1995 (O&M) [4] 5. The finding of the Courts that there had been no necessity for the sale could not have, however, in my view, gone to the extent of finding that the sale was void and grant recovery of possession without minding the extent of property that had been sold. The learned counsel appearing for the appellants contends that Major Singh and Karam Singh were 5/12th shareholders of land measuring 242 kanals 9 marlas and on the death of Karam Singh, the 5th defendant had 5/24th share in the entire extent. According to him, the property that was sold was still less than the share, which the 5th defendant had. It must be noticed that the suit was not for partition. The plaintiffs had merely brought a suit for declaration that the particular sale was not valid and they were trying to secure recovery of the whole of the property. The sale can not be become void so as to defeat the purchaser's right to the vendor's share in the property. Law permits an exercise by a member of joint family to file a suit for recovery of possession of the whole of the property leaving it to purchaser to bring his own suit for general partition and seek for allotment of the property sold to be kept in the alienor's share. The purchasers were at any rate, bound to surrender up the whole of the property and if they had not filed their own suit for partition to seek for an allotment, that right alone can be protected for the defendants to bring an appropriate suit framed for the purpose. However, the findings of the trial Court and the appellate Court as to the character of property, and the non-binding nature of the transaction by failure of the proof of the defendants that the property had been, sold for any family necessities, have to be affirmed. The second appeal is dismissed and the propositions of law framed, are found against the appellants. The defendants cannot resist the action for possession without bringing their own suit for general partition in the manner referred to above. With this RSA No.163 of 1995 (O&M) [5] liberty to the defendants, the plaintiffs' suit must succeed and the second appeal is liable to be dismissed and accordingly, dismissed. NOVEMBER 21, 2011 ( K. KANNAN ) Rajan JUDGE