1 sa805.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.805 OF 2010 WITH CIVIL APPLICATION NO.1450 OF 2009 Rambhau s/o Krishnath Redekar Applicants/ and another. appellants vs Balaji Hari Bachate Respondents and others. --------- Shri V.S. Tanawade, Advocate, for the appellants. Shri P.B. Rakhunde, Advocate, for the respondents. Quorum: Shrihari P. Davare,J. Date : 24th February 2011. P. C. 01. This second appeal is preferred by the appellants-original Defendant Nos. 2 and 4, challenging the judgment and decree dated 26.9.2006, passed by learned Adhoc District Judge-1, Osmanabad, in Regular Civil Appeal No. 7 of 2001, confirming the judgment and decree dated 8.11.2000, rendered by learned Civil Judge, Senior Division, Osmanabad, in Regular Civil Suit No. 308 of 2000 (Old No. 105/1997). Apparently, there are concurrent findings against the appellants herein. The parties are, hereinafter, referred to as per their original status i.e. Plaintiffs and Defendants. 2 sa805.10 02. Original Plaintiff No.1 Balaji, Plaintiff No.2 Satyabhamabai, Plaintiff No.3 Suman, Plaintiff No.4 Ramesh, Plaintiff No.5 Pandurang and Plaintiff No. 6 Chandrakant, filed Special Civil Suit No.308 of 2000 before the Court of Civil Judge, Senior Division, Osmanabad, for relief of declaration that the sale deeds executed by original Defendant No.1 in favour of other Defendants, are not binding on the plaintiffs, and alternatively, for partition and possession of 5/6th share in the suit properties i.e. Gat Nos.98, 99 and 100 situated at village Mahalangi, Taluka and District Osmanabad. 03. It is the contention of the Plaintiffs that plaintiff No.1 is the son of Plaintiff No.2 and Defendant No.1, whereas original plaintiff Nos. 4 to 6 are the sons of Plaintiff No.3 and Defendant No.1, and Plaintiff Nos. 2 and 3 are co-wives of defendant No.1 However, Defendant Nos. 2 and 3 are the purchasers of the suit property. It is also the contention of the plaintiffs that the lands Gat Nos. 98, 99 and 100 of village Mahalangi, were in all admeasuring 5 H. 5 R. Out of Gat No. 98, certain area was standing in the name of Plaintiff No.2. It is contended by the plaintiffs that all the suit properties are ancestral joint hindu family properties owned by plaintiffs and defendant No.1. 3 sa805.10 04. It is alleged that Defendant No.1 was addicted to liquor and gambling, and to satisfy his unreasonable necessities, he entered into transactions of sale of the suit properties with other defendants. Accordingly, Defendant No.1 executed conditional sale deed on 7.3.1979 in respect of land Gat No.99/56, in favour of Defendant No.5, showing consideration of Rs.5000/=, but only Rs.1000/= were paid before the Sub Registrar. It is also alleged that Defendant No.1 executed conditional sale deed in favour of Defendant No. 4, on 14.12.1981 in respect of southern side 1 H. 22 R. of land Gat No.99, showing consideration of Rs.7000/-, but in fact, only Rs.700/= were paid to Defendant No.1 before the Sub Registrar, so also it is alleged that Defendant No.1 executed sale deed in favour of Defendant No. 3 on 1.8.1980 in respect of northern side portion 1-A from lands Gat Nos. 99 and 100, showing consideration to be Rs.7000/=. Though this sale deed was effected by Defendant Nos. 1 and 6, name of Defendant No. 6 Vitthal Bhimrao Gaikwad is not appearing on 7/12 record. It is further alleged that Defendant No.1 executed sale deed on 5.7.1985 in favour of Defendant No. 2 in respect of southern side portions 1A, 25G, 1A, 10G, 1A, 10G from land Gat Nos. 98, 99 and 100, and although consideration was shown as Rs. 14,000/=, only Rs.7000/= were paid before the Sub Registrar. 4 sa805.10 05. Accordingly, it is the contention of the plaintiffs that the aforesaid transactions are bogus, without consideration, effected by Defendant No. 1 to satisfy his lust and, therefore, are not binding on them. It is the contention of the plaintiffs that income from all the landed property was sufficient to meet the family needs and there was no legal necessity to execute the aforesaid sale transactions and therefore, the said sale deeds are not binding on the plaintiffs. 06. According to the plaintiffs, at the time of execution of aforesaid transactions, original plaintiff No. 1 was minor and, therefore, Defendant no.1 had no right to alienate the aforesaid properties in the absence of partition and hence, the sale transactions are not binding upon the plaintiffs and their shares in the suit properties. It is also the case of the plaintiffs that they had requested the defendants to effect partition, but the Defendants refused to do so, and hence, the plaintiffs filed aforesaid suit for declaration, and alternatively for partition and possession. 07. Original Defendant No.1 remained absent and therefore suit proceeded exparte against him. However, Defendant Nos. 2 and 4 filed their written statement and denied that Defendant No. 1 did not sell the suit property to them for his legal 5 sa805.10 necessity and therefore, the said transactions are binding upon the plaintiffs. It is also alleged that the plaintiffs and defendant No.1 were in need of money to satisfy their private loan and for marriage of daughter of Defendant no.1 and, therefore, the plaintiffs and Defendant No.1 sold the suit lands to these defendants, and hence, the said transactions are binding upon the plaintiffs and consequently, defendants prayed that the suit being not maintainable, deserves to be dismissed. 08. Moreover, Defendant Nos. 3, 5 and 6 also filed their written statement and resisted the suit claim. They also contended that the plaintiffs and defendant no.1 were in need of money to discharge their private loan and also for marriage expenses of daughter of defendant No.1 and, therefore, the properties were sold to defendants and hence, the sale transactions are binding on the plaintiffs, and therefore, suit is not tenable and hence, they prayed for dismissal thereof. 09. Considering the rival submissions of the parties, learned trial judge framed the issues and after assessing and analyzing the evidence on record, decreed the suit partly, and held plaintiff No.1 to be entitled to recover his 1/6th share in suit properties, after effecting partition between the plaintiffs and defendants, whereas suit for shares of plaintiff Nos. 2 to 6 was dismissed. 6 sa805.10 10. Being aggrieved and dissatisfied by the said judgment and decree of the trial court, two appeals i.e. R.C.A. No.7 of 2001 and R.C.A. No. 11 of 2001 were filed by Defendant Nos. 2 to 6 and Plaintiff Nos. 2 to 6, respectively. However, both the appeals were dismissed by the learned Adhoc District Judge-I, Osmanabad, by the common judgment and order dated 26.9.2006. Feeling aggrieved and dissatisfied by the dismissal of their appeal, Defendant Nos. 2 and 4 have preferred present second appeal, assailing the said dismissal. 11. Learned Counsel for the appellants, canvassed that the plaintiffs have not incorporated all the properties in the suit, for the purpose of partition and they have not claimed partition in respect of all the suit properties. However, considering the beginning of para 1 of the plaint and the properties described therein, and also considering the prayer clauses of the plaint, as well as alternate prayer made by the plaintiffs, apparently there is no substance in the argument canvased by the learned counsel for the appellants. 12. Learned counsel for the appellants, further submitted that the plaintiffs have not made prayer in the suit, in respect of cancellation of the sale deed dated 5.7.1985 and, therefore, the suit without the said prayer, is not maintainable. However, 7 sa805.10 prayer clause (B) of the plaint, wherein declaration has been sought by the plaintiffs that the transactions executed by Defendant No.1 in favour of Defendant Nos. 2 to 5 are not binding on the the plaintiffs, meets the said argument and consequently, there is no substance in the said argument also. 13. Moreover, reasoning given by the trial court in respect of the challenge by Plaintiff No. 1 to the sale transactions executed by Defendant No.1, that plaintiff No.1 attained age of majority in the year 1995, when during the time alienations of the properties had already been effected, and plaintiffs filed suit within the period of three years, challenging the said alienations within the three years after attaining the age of majority, rightly, cannot be faulted with. There is no flaw in the reasoning given by the trial court, as well as the first appellate court, in respect of the legal necessity, holding that mere recital in the sale deed about legal necessity does not mean that the property was sold for legal necessity, but the point of legal necessity is to be properly pleaded and proved by legal evidence on record, but none of the defendants has stated that as to how many daughters defendant No.1 had and when they were married. 14. In the circumstances, having comprehensive view of the matter, the impugned judgments and the decrees rendered by 8 sa805.10 both the courts below do not call for any interference, in the second appeal. Accordingly, no substantial question of law could be formulated, since the present appeal lacks merits, and consequently, present Second Appeal stands dismissed. 15. In view of dismissal of second appeal, civil application does not survive and same also stands dismissed, accordingly. 16. Record and Proceedings be sent back to the concerned court. pnd/sa805.10 (SHRIHARI P. DAVARE, J.)