1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 199/2007 (Pravin Ramrao Patil & 2 ors. Vs. Vishwanath Narayanrao Bhakre & anr.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 7 th FEBRUARY, 2008. Heard Shri Gordey for the appellants. The appellants are the original plaintiffs. A suit was filed by the plaintiffs for a declaration that the sale deed executed by the defendant no. 2- the father of the plaintiff nos. 1 and 2, and the husband of the plaintiff no.3, on 22/12/1994 in favour of the defendant no.1, be declared as null and void. The suit property is a small room which, according to the plaintiffs, was their ancestral property. According to the plaintiffs, the defendant no.2 was in the habit of consuming liquor and gaming on Worli-Matka and in that process, he often used to sell the household articles without obtaining consent of his wife and his children. In the aforesaid background, the plaintiffs sought a declaration of cancellation of the sale deed executed by the defendant no.2 in favour of the defendant no.1. The defendant no. 1/respondent no.1 denied the claim of the 2 plaintiffs and further denied that the defendant no. 2 had sold the suit room for consuming liquor and for gambling. It was pleaded by the defendant no. 1 that he was a tenant in the suit room since the year 1952 at a monthly rent of Rs. 37/- and the defendant no.2 had lost in the litigations filed before the Rent Control Authorities. It is in this background, the defendant no.2 had ultimately sold the suit room to him as the rent of the suit room was very less and the marriage of the sister of the plaintiff nos. 1 and 2 was also to be performed. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and held that the suit property was the ancestral property. The trial Court, however, held that the plaintiffs had failed in proving that the defendant no.2 sold away the suit property to the defendant no.1 for fulfilling the habits of consuming alcohol and for gambling. The trial Court further held that the plaintiff no.2- Vivek and the plaintiff no.3- Kokilabai had given their consent for the sale of the property by the defendant no.1. The Court further observed that the plaintiffs had failed to prove that the sale deed of the suit room was executed for illegal and immoral purposes and the same was not binding on the plaintiffs. According to the trial Court, the evidence of P.W.1- Pravin showed that besides the suit room, they were also 3 having other properties which were jointly owned by them. In view of the aforesaid findings, the trial Court dismissed the suit of the plaintiffs. The appellate Court upheld the findings recorded by the trial Court. The appellate Court held that the plaintiff nos. 2 and 3 were major at the time of execution of the sale and they could have prevented the defendant no.2 from entering into the transaction by taking legal steps. But, they had not done so for a long period and the present civil suit was filed after a considerable time. The trial as well as the appellate Court weighed the evidence of the plaintiff with that of the defendants to hold that the plaintiffs had utterly failed in proving that the suit property was sold by the defendant no.2 for consuming alcohol and for gambling. The first appellate Court further observed that though the father of the plaintiff nos. 1 and 2 had sold certain other properties prior to the sale of the suit property to the defendant no.1, surprisingly, the plaintiffs had not taken any action against those vendees but had preferred to file a suit only against the defendant no.1 who was, admittedly, a tenant in the suit property for a long and the litigation filed by father of the plaintiff nos. 1 and 2 against the defendant no.1, had been lost. The reasons recorded by both the trial as well as appellate Courts are extremely just and 4 proper. Both the Courts have concurrently recorded the findings of fact that the property was not sold by the Karta of the family for satisfying his vices of consuming alcohol and gambling as pleaded by the plaintiffs. The Courts have further rightly considered the previous litigations between the defendant no.2 and the defendant no.1 who was, admittedly, a tenant in the suit property and was paying monthly rent of Rs. 37/- only. The Courts have also considered the fact that the plaintiff nos. 2 and 3 were major at the time of execution of the sale deed and could have as well challenged the sale immediately or could have instituted a suit prior to the sale of the property so as to restrain the Karta from selling the same to the defendant no.1. The burden of proving that the Karta of the family was addicted to vices, lay absolutely on the plaintiffs and they had failed to discharge this burden. In this view of the matter, the judgments passed by both the Courts cannot be faulted with. Since no substantial question of law arises for consideration in the instant second appeal, same is dismissed with no order as to costs. JUDGE RMP