1 sa 202.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 202 OF 2011 Piraji S/o Jija Kachkure .. Appellant Versus 1. Smt. Dhondabai W/o Aavchitrao Shinde and others .. Respondents Shri S. S. Wagh, Advocate for the Appellant. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by the original defendant No. 1. The plaintiffs had filed a suit for partition and separate possession. The Trial Court decreed the suit holding that the plaintiff Nos. 1 to 3 have 1/24th share, whereas the plaintiff No. 4 and defendant Nos. 1 to 3 have 7/24th share in the suit property i. e. land gut No. 90 and house No. 29. So also the sale deed dated 04.09.2001 executed by the defendant No. 1 in favour of defendant No. 2 was declared void to the extent of share of plaintiffs and defendant No. 4. Aggrieved thereby the defendant No. 1 preferred an 2 sa 202.11 appeal before the District Court. The District Court also dismissed the appeal confirming the judgment and decree of the Trial Court. Aggrieved thereby the defendant No. 1 has filed the present second appeal. 2. Shri Wagh, the learned counsel for the appellant/original defendant No. 1 strenuously contended that the property to the extent of 56R was sold to the defendant No. 2 vide sale deed dated 04.09.2001 for the legal necessity. Admittedly, the defendant No. 1 was the eldest male member in the family and therefore, was the Karta. The suit land and the house property were the ancestral properties of the joint family. When their father died, the defendant No. 1 was aged 15 years. Except one sister, other brothers and sisters were younger to defendant No. 1 and the defendant No. 1 was in fact the Karta and the manager of the family who had the responsibility of the whole family as there was no other property and no other source of income, the inference will have to be drawn that from time to time the defendant No. 1 had taken the loan for the purpose of performance of the marriage of the sisters and for maintenance of the family. So also for digging the well in the land of the family. As there was no other source of income the only probable 3 sa 202.11 and natural inference would be that the defendant No. 1 had taken loan from time to time. The learned counsel further contended that the Courts have given a perverse finding in as much as the Trial Court had recorded that the present appellant admitted that he had not obtained consent of his brother or mother while executing the sale deed. In fact, he had denied the same. So also the deposition of the D.W. No. 1 Piraji has been misread. It is read as if it is contrary to the written statement. According to the learned counsel leaving aside this 56R land, the remaining land can be equally divided amongst the members of the family. The learned counsel further contended that the property was sold to the brother of the wife of the defendant No. 1 from whom he had taken loan. Taking into account the relationship the record of loan was not maintained. 3. With the assistance of the learned counsel, I have gone through the judgments. The fact that the suit property is joint family property is not disputed. The only bone of contention is whether the sale deed dated 04.09.2001 executed by the defendant No. 1 in favour of defendant No. 2 was for legal necessity or not. The Courts have discussed the various circumstances. When the father of plaintiffs and the appellant 4 sa 202.11 had died, the appellant was only 15 years of age. One sister is elder to the defendant No. 1 and the other brothers and sisters though were younger, their marriages were performed by about 1987. The property was sold in the year 2001. Unless, it is shown that the said sale of the property was for legal necessity, the said sale cannot be binding on the share of plaintiffs. The Courts have discussed the evidence and the circumstances on record. No particulars are given as to when the marriages of the sisters have taken place. So also no particulars are given as to when the well is dug. The defendant No. 3 Dhuraji in his written statement took the plea that he raised the loan for digging the well. No document is produced of any such loan been taken for digging the well. There is no proof to show that the defendant No. 1 has spent amount for digging the well. No particulars of other expenditure are given. The Court below has also discussed one of the circumstance about the age of the defendant No. 2 i. e. the purchaser. If his age is taken as is shown, then at the time of death of the father of appellant, he would be 10 years of age. However, all the circumstances are taken into consideration and the Courts have found that in the year 2001, there was no such legal necessity to sale the said property to the defendant No. 2. The said finding is finding of fact based on evidence. Both the 5 sa 202.11 Courts have concurrently on evaluation and appreciation of evidence have come to the conclusion about the fact that the said sale was not for legal necessity or that the defendant could not prove the sale of the suit land for any legal necessity. The legal necessity could not have been just inferred, the same will have to be proved. 4. Both the Courts below have taken a possible and plausible view based on evaluation of evidence. The same does not give rise to any substantial question of law. As such, the second appeal is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Mayl 11