: 1 : Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.456 OF 1988 SECOND APPEAL NO.456 OF 1988 SECOND APPEAL NO.456 OF 1988 Bapu Krishna Pukale & Ors. ...Appellants V/s. Tatyasaheb Mahadeo Dhamapurkar & Ors. ...Respondents Mr.Vineet B. Naik, Advocate, for the Appellants. Mr.A.A. Kumbhakoni, Advocate, for Respondent No.1. Mr.A.M. Kulkarni, Advocate, for Respondent Nos.3(1) and 3(4) to 3(7). CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 10TH JANUARY, 2008. DATE : 10TH JANUARY, 2008. DATE : 10TH JANUARY, 2008. JUDGMENT :- JUDGMENT :- JUDGMENT :- 1. Heard the learned Counsel appearing for the appellants. Appellants are the original defendant Nos.8 and 9. With a view to appreciate the submissions made by the learned Counsel for the appellants, it will be necessary to refer to the facts of the case in brief. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the Trial Court. 2. The 1st defendant is the father of the plaintiff. Defendant Nos.2 to 6 are the other sons of the 1st defendant. The 7th defendant is the wife of : 2 : the 1st defendant. The Defendant Nos.8 and 9 are the persons in whose favour the 1st defendant father made alienation of the suit property. In the plaint, an averment has been made that sale deeds were executed by the 1st defendant in favour of 8th and 9th defendants under the influence of liquor. It is alleged that there was no legal necessity for the 1st defendant to alienate the property in favour of 7th and 8th defendants. It is stated that 2nd to 6th defendants and the plaintiff were minors at the time of alienations made by the 1st defendant and the said plaintiff was having undivided share in the suit property as the same was an ancestral property at the hands of the 1st defendant. Therefore, a prayer was made in the suit for partition and separate possession and the second prayer was for declaration that the alienations made by the 1st defendant in favour of the 8th and 9th defendants be set aside. 3. The 1st defendant by filing written statement supported the plaintiff. 2nd to 7th defendants have also filed written statements supporting the plaintiff. The said defendants prayed for partition and separate possession of their respective shares. 4. The 8th and 9th defendants filed written : 3 : statement denying the assertion that the sale deeds were executed by the 1st defendant under the influence of liquor. It is alleged that the 1st defendant was facing financial difficulties and was unable to maintain the family and for maintenance of the plaintiff and 1st to 7th defendants, alienations were required to be made by the 1st defendant. 5. The Trial Court held that the plaintiff has failed to prove that the sale deeds were got executed by the 8th and 9th defendants from the 1st defendant by playing fraud and misrepresentation. The Trial Court held that the suit filed by the plaintiff was barred by limitation. 6. An Appeal was preferred by the original plaintiff before the District Court. The District Court confirmed the finding of the Trial Court that the plaintiff has failed to prove that 8th and 9th defendants have got the sale deeds executed by the 1st defendant by practicing fraud and misrepresentation. The Appellate Court held that the 8th and 9th defendants have failed to prove that alienations were made by the 1st defendant for legal necessity. The Appellate Court held that the prayer made by the plaintiff as well as the 1st, 2nd and 7th defendant : 4 : for partition was barred by limitation. The Appellate Court held that the 3rd to 6th defendants were minors on the date of institution of the suit and therefore their claim for partition was within limitation. Therefore, a preliminary decree was passed by the Appellate Court in favour of the 3rd to 6th defendants holding that they are entitled to 1/8th share each. 7. The Second Appeal was admitted on 6th September, 1988 on the following substantial questions of law :- (a). Whether the finding relating to legal necessity in the absence of issue to that effect is proper? (b). Whether in the absence of any issue relating to legal necessity, the finding on legal necessity on the basis of evidence that is on record is legal and correct? 8. The submission of the learned Counsel for the appellants (8th and 9th defendants) is that the Trial Court did not frame any issue regarding the legal necessity and for the first time, the Appellate Court framed a point for determination on the said aspect : 5 : while deciding the Appeal preferred by the original plaintiff. He submitted that the sale deeds contained a recital that the 1st defendant is badly in need of money and therefore it was for the plaintiff and concerned defendants to lead evidence to the contrary. It is submitted that the finding of the Appellate Court on the point framed regarding legal necessity is perverse. It is submitted that the recitals in the sale deeds were more than enough to discharge the burden imposed by law on the 8th and 9th defendants. 9. I have carefully considered the submissions. I have also perused the pleadings and notes of evidence. It cannot be disputed that the burden to prove existence of legal necessity for alienation was on 8th and 9th defendants. Perusal of the evidence of the 8th defendant and the son of the 9th defendant shows that both of them have not deposed regarding the existence of legal necessity. The two witnesses examined by the appellants (8th and 9th defendants) are for proving the execution of the sale deeds. The said witnesses have deposed that the 1st defendant was not under the influence of the liquor at the time of execution of the sale deeds. Obviously, the said witnesses had no knowledge of existence of legal necessity and therefore they have not deposed to the : 6 : same. 10. Except for mere recital in the sale deeds that 1st defendant was in need of money, there is no evidence lead by the appellants i.e. the 8th and 9th defendants for discharging the burden on them. Therefore, the Appellate Court has considered the other factors namely the price mentioned in the sale deeds and the fact that three alienations were made by the 1st defendant in the span of 12 months. While referring to the evidence lead by the appellants, the learned Appellate Court has observed thus:- "They have also adduced the evidence. However, their evidence suffers from paucity and it is nebulous and non-committal." 11. It must be also stated that the Appellate Court has observed that it was not submitted by the Advocates for either parties that the parties were prejudiced as an issue regarding legal necessity was not specifically framed. In fact, perusal of the pleadings and notes of evidence shows that parties were fully conscious of the fact that the issue regarding existence of legal necessity was involved in : 7 : the suit. 12. After having examined the evidence lead by the appellants, I find that there is no flaw in the finding recorded by the Appellate Court on the legal necessity. The finding of the Appellate Court on this aspect is a detailed finding based on the appreciation of oral and documentary evidence on record. In the circumstances, there is no merit in the Second Appeal and the same is accordingly dismissed with no order as to costs. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]