1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 204 OF 1990 01. Sakharam Mahadji Rajegore, age about 34 years, occup. agriculture, r/of Shelgaon Bk. Taluka and Dist.Nanded 02. Shri Hari Mahadji Rajegore, aged about 50 years, occup. agriculture, r/of as above. 03. Shri Kishan Mahadji Rajegore, age 35 years, occup.agril. r/of as above. 04. Motiram s/o Bapuji Rajegore, aged 35 years, occup.agril. r/of as above. 05. Tukaram Mahadji Rajegore, Appellants/ori. aged about 49 years, occup. Defendant Nos. agriculture, r/of as above. 2 to 6. versus 01. Datta Vithalrao Rajegore, aged about 14 years, minor, u/g of mother Satyabhamabai w/of Vithalrao Rajegore, aged about 35 years, occup. agri & household, resident of Shelgaon Bk., Taluka and District Nanded. 02. Satyabhamabai w/o Vithalrao Rajegore, aged about 35 yrs. occupation agriculture and household, r/of Shelgaon, Taluka and District Nanded. 03. Vithalrao s/o Datta Rajegore, aged about 45 years, occup. agriculture, r/of Shelgaon 2 Bk., Taluka and District Respondents/ Nanded, now residing at ori.pltffs. & Karadkheda, Taluka & Dist. defendant No.1 Nanded. respectively. ------------------------------------------------------ Shri Milind Patil Beedkar, Advocate for appellants. Shri V.M. Kagne, Advocate holding for Shri S.S.Choudhari, Advocate for Respsondent Nos. 1 and 2. Shri V. R. Sonwalkar, Advocate for Respondent No. 3. ------------------------------------------------------ Coram : P.R. Borkar, J. Judgment reserved on : 07.04.2010 Judgment pronounced on : 09.04.2010 ORAL JUDGMENT 01. This second appeal is filed by original Defendant Nos. 2 to 6 being aggrieved by the judgment and decree passed in Regular Civil Appeal No.251 of 1984 decided by the learned III Additional District Judge, Nanded on 12.4.1990, thereby setting aside the dismissal of suit bearing R.C.S. No. 229 of 1980 by II Joint Civil Judge, Junior Division, Nanded on 10.9.1984 and allowing the appeal and the suit of Respondent Nos. 1 and 2 (original plaintiffs) for partition, declaration that they have 2/3rd share in Gat No. 288 admeasuring 1 hector 34 R, and Gat No.192 admeasuriang 2 hector 90 R situated at village 3 Shelgaon, Taluka Nanded and further declaration that the sale deeds dated 20.5.1980 executed by Defendant No.1 (Respondent No.3) in favour of appellants (defendant Nos. 2 to 6) in respect of the suit lands are not binding on the respondents- plaintiffs to the extent of their 2/3rd share. The partition of house property was also allowed. The appellants are mainly aggrieved because of declaration regarding sale deeds and partition of the suit lands. 02. It is the case of Respondent No.1 Dattatraya and Respondent No.2 Satyabhambai (Plaintiffs No.1 and 2) that they are son and wife respectively of Respondent No.3 Vittharao (defendant No.1). Suit lands bearing Gat Nos.288 and 192 situated at village Shelgaon, Taluka Nanded and a house bearing Gram Panchayat No.98 were the ancestral properties of Respondents. Respondent no.3 Vitthal was mentally weak and was previously admitted in mental hospital for some time and was unable to safeguard his own interest and thereafter Respondent No.2 Satyabhamabai was 4 looking after the management of family properties. In April 1980, Respondent No. 2 along with her minor son Respondent No.1 had gone to village Alegaon at her parental house and on returning back after about fifteen days to Shelgaon, they found that Respondent No.3 was not at the house and was taken to village Kasarkheda. Thereafter, several attempts were made by Respondent No.2 to bring Respondent No.3 back to Shelgaon. She learnt that one Mahadu Rajegore of Shelgaon, who is father of appellant Nos. 1 to 3 (original defendant Nos. 2 to 4), was trying to get the family property of respondents transferred in his name with the help of some persons from Kasarkheda. Anticipating that Respondent No.3 might transfer family properties in the name of Mahadu without legal necessity, Respondent No.2 initially filed present suit along with Respondent No.1 only against Respondent No.3 for partition and perpetual injunction and also sought temporary injunction restraining Respondent No.3 from transferring family properties in the name of third person. In the suit, prayer for partition 5 and separate possession of the shares of respondent No. 1 and 2 was also made. At the same time, Respondent No.1 and 2 had also given public notice in newspaper called "Godatir" not to purchase property from Respondent No.3. 03. Subsequently, pending suit, respondent Nos.1 and 2 learnt about the sale deeds executed by Respondent No. 3 in favour of appellants and, therefore, the appellants were added as parties and declaration was sought that the sale deeds in favour of the appellants were not binding on the shares of respondent Nos.1 and 2. 04. Respondent No.3-original Defendant No.1 failed to appear and contest the suit and, therefore, suit proceeded exparte against him. 05. However, appellants (defendant Nos. 2 to 6) filed written statement at Exhibit 37. They amended the written statement twice, first by application Exh.41 and thereafter by application Exh.57. Amended written statement is at Exh.67. 6 Appellants denied that respondent No.2 was legally wedded wife of respondent No.3 and that respondent 1 was their son. It is also alleged that respondent No.2 had married one Shamrao of village Loni and that marriage was still subsisting. It is alleged that respondent No.1 was born from Shamrao. Respondent No.3 had married one Kondabai and thus the relationship between the respondents was challenged. It is further alleged that Respondent No. 3 purchased property at village Kasarkheda by selling the property at Shelgaon. The appellants are bonafide purchasers for value without notice and so sale deed executed by respondent No.3 in favour of the appellants is binding on respondents. Assuming that the property was ancestral property, tThe transaction was for benefit of estate and legal necessity. The appellants, therefore, prayed that suit be dismissed. 06. The learned trial judge held that the appellants were bonafide purchasers for value without notice and, therefore, sale deeds in their 7 favour are binding on respondents. No issue of lis pendense was considered. It is worth noting that the suit was filed on 6.5.1980 and the sale deeds were executed on 20.5.1980. So, execution of sale deeds was admittedly pending the suit. The first appellate court reversed the finding, by holding that the sale deeds executed by defendant No.1-respondent No.3 in favour of appellants- defendant Nos. 2 to 6 were not binding on respondents-plaintiffs. 07. This second appeal is admitted on 28.6.1990 without framing any substantial question of law. However, following substantial question of law is framed by order dated 6.4.2010. "(1) Whether the sale by defendant No.1 in favour of Defendant Nos. 2 to 6 was for legal necessity or benefit of the estate ? 08. So far as relationship between Respondent Nos. 1 to 3 is concerned, both, trial court and the first appellant court, have concurrently held that Respondent No.2 is legally wedded wife of 8 Respondent No. 3 and Respondent no.1 is their son who was minor when the suit was filed. Both courts have also held that suit properties were inherited by Respondent No.3 from his father and as such, those were the ancestral properties. In this case five sale-deeds by Respondent No. 3 in favour of respective appellants are at Exhibits 90 to 94. By the said sale deeds are executed and registered on the same day i.e. 20.5.1980. Each of the sale deeds is for Rs.`10,000/=. Even the scribe and attesting and identifying witnesses are also the same. It is also clear that various portions of lands were sold by above said five sale deeds. 09. On the other hand, appellants have produced sale deeds at Exhibits 101 and 102 as documents to show that on the same day i.e. 20.5.1980, respondent No.3 purchased properties in his name and in the name of Respondent No.1 who was shown to be one year old through his guardian-father (Respondent No.3). The lands purchased by Respondent No.3 are situated at village Kasarkheda 9 and the seller is one Venkatrao Vitthalrao Shinde of Kasarkheda. By sale deed Exh.101 in the name of Respondent No.1, land admeasuring 2 hector 2 R (5 acres) was purchased for Rs.5000/= It is stated that the land was sold by Venkatrao for development of his another land. It is also mentioned in the sale deed that Rs.5000/= were already paid by Respondent No.3. By sale deed Exhibit 102, Venkatrao sold 2 hectors 53 R (6 acres, 11 gunthas) in the name of Respondent No.3 for Rs.5000/=. It is the case of plaintiffs- respondent Nos. 1 and 2 that the sale deeds (Exhibits 101 and 102) are nothing but eye wash transactions and said sale deeds are neither genuine nor for benefit of the estate. 10. One thing is very clear that this was not a case of legal necessity. It is not that there was some pressure on the estate and for some legal necessity Respondent No.3 was compelled to sell five portions of his lands on the same day for Rs. 10,000/= each and thus raise Rs.50,000/=. The only reason given in the sale deed is "purchase of 10 land at Kasarkheda in the name of Respondent Nos. 1 and 3 and for other expenses". Now, it is very clear from the sale deeds that only amount of Rs. 10,000/- out of total consideration of Rs.50,000/= received from sale of five portions of lands at Shelgaon, was utilized for purchasing new lands at Kasarkheda. So, question arises whether such transaction of excess sale of four parcels of lands for Rs.40,000/= was in the interest or for the benefit of the joint family and would be binding on the members of the joint family. Such transaction cannot be said to be for legal necessity inasmuch as the sale to any one of the appellants was enough to raise Rs.10,000/= for purchase of land at Kasarkheda in the name of Respondent Nos. 1 and 3. 11. Now, it is well settled that Karta of the family, including father, can sell the property for legal necessity or for benefit of the family estate. It is well settled that legal necessity does not mean actual compulsion; it means pressure upon the estate which in law may be regarded as 11 serious and sufficient. In present matter, it is not the case proved by evidence that there was any legal necessity such as, need to raise funds for maintenance of family or marriage of unmarried daughters or for satisfying debts etc. Present case definitely does not fall within "legal necessity". So, we have to examine whether it falls under category of sale for benefit of family estate. 12. The Supreme Court in the case of Bal Mukund vs. Kamla Wati AIR 1964 SC 1385 has held that for a transaction to be regarded as one which is of benefit to the family, it need not necessarily be only of a defensive character. Sale of such property and that too on advantageous terms and to invest the sale proceeds in a profitable way would certainly be regarded as beneficial to the family. However, in Bal Mukund's case, the manager of the family had not found it difficult to manage the property in issue at all, with the result that the family was incurring losses. 12 13. In the case of Prasad vs. V. Govindaswami Mudaliar AIR 1982 SC 84, it is laid down that if the transaction was such as a prudent owner would like to effect, it will be considered to be for the benefit of the estate. So, it has to be proved the act of disposal of property by the manager was a prudent act and it was for the benefit of the family. 14. In the present case, the first appellate court has discussed the evidence in details and rightly observed that the sale of one parcel of land by Respondent No.3 to one of the appellants was sufficient to purchase property at Kasarkheda and there was no necessity to sell properties to other four appellants. The court has also observed that so far as appellant Nos. 4 and 5 (defendant Nos. 5 and 6) are concerned, the sale deeds in their favour in respect of land Gat No. 288 clearly indicate that the consideration amounts were already received by the seller (Respondent No.3) prior to execution of the sale deed. Not only that, appellants No. 4 and 5 were 13 also put in possession of respective lands. Under the circumstances, there was no necessity to enter into further sale transactions and execute sale deeds in favour of remaining appellants (defendant Nos. 2 to 6). We find discussion to that effect in paragraphs 14 onwards of the judgment of the appellate court. 15. It is worth noting that present appellant Nos. 1 to 3 are brothers inter-se and sons of Mahadji Rajegore against whom allegations are made in the plaint originally filed. It was mentioned in paragraphs 3 and 4 of the original plaint that Respondent No. 3 (original defendant No.1 Vitthalrao) was mentally weak and gets attacks of insanity at intervals. He had to be admitted in mental hospital about 10 years prior to filing of the suit. It is further averred in para 4 that Respondent No.3 was unable to safeguard his own interest and that of Respondent Nos. 1 and 2 and, therefore, Respondent No.2 was required to look after the management of the lands. Then in para. 5, there is a statement regarding Respondent Nos. 14 1 and 2 having gone to village Alegaon and that after their returning back to Shelgaon, Respondent No. 3 (defendant no.1) was not found at home. In paragraph 8 of the plaint, it is stated that on enquiries, Respondent Nos. 1 and 2 learnt that Respondent No.3 had been estranged from Respondent Nos. 1 and 2 by the adversaries of the plaintiffs and they had hatched plan to get all suit lands transferred in the name of one Mahadu Rajegore (father of appellants No.1 to 3) with help of some influential persons from village Kasarkheda. In paragraph 9 of the plaint, it is stated that Respondent No.3 was completely under thumb of said Mahadu Rajegore and there was every likelihood of Respondent No.3 executing sale deeds in respect of the properties. The record shows and the District Court also observed that even though Respondent Nos. 1 and 2 had obtained order of temporary injunction from the court, the same could not be served on Respondent No. 3 till execution of the sale deeds by him. The District Court observed that this was nothing, but a trick played by the purchasers/appellants. 15 We find discussion in details of the entire evidence in paragraph 10 onwards of the judgment of the District Court. 16. After carefully going through the entire judgment of the first appellate court, so also of the trial court and the position of law which is correctly discussed by the learned appellate judge, in my considered opinion, this is not a case wherein any interference by this court in the second appeal is required. The sales by Respondent No.3 in favour of the appellants were not for legal necessity or benefit of estate. 17. In the result, second appeal fails and the same is dismissed. pnd/SA204.90 (P.R.BORKAR, J.)