1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO.688 OF 2007 Shri Muralidhar Kondiba Nanaware ..Appellant (Orig.Deft.No.1) vs. Shri Sanjay Muralidhar Bhilare & ors. ..Respondents (Orig.Plaintiffs) Mr.R.A.Thorat for the Appellant. Mr.Pradeep Gole for the Respondents. CORAM : ANOOP V. MOHTA,J. DATED : 4th July, 2008 P.C. The Respondents-original Plaintiffs suit has been partly decreed. The Appeal preferred by the Appellant-Original Defendant No.1 was dismissed. Therefore, this Second Appeal against the concurrent finding of facts. 2. The operative part of the order/decree dated 2.12.2000 passed by the Civil Judge, Senior Division, Satara is as under: ORDER 1. Plaintiff’s suit is partly decreed. 2. It is declared that the sale-deed dated 2.12.1989 is null and void. 3. Plaintiffs’ claim for possession is hereby rejected. 2 4. Defendant No.1 is directed to pay mesne profit for the use and occupation of the suit property at the rate of Rs.50/- per month from the date of suit till the recovery of the possession. 5. Defendant No.1 is directed to pay the costs of the suit to the plaintiffs and bear his own. 6. Decree be drawn accordingly." 3. There is no challenge made by the Plaintiffs/Respondents with regard to the finding of dismissing their suit for possession. Both the Courts, based on the material evidence available on the record, held that Appellant/Defendant No.1 failed to prove that Defendant No.2 has sold the suit property to him for Rs.31,0000/- for the legal necessity of his family and, therefore, as prayed, the sale deed dated 2.12.1989 has been decreed null and void, the property being of Joint Hindu family. Defendant No.2 has never challenged the impugned judgment and decree passed by the Courts below. The challenge is made even before the lower Appellate Court and in this Second Appeal only by Defendant No.1. By the suit, the challenge was to the Registered sale deed executed by Defendant No.2 in favour of Defendant No.1-Appellant dated 2.12.1989 and declared it to be null and void and further for vacant possession of the suit property along with mesne profit. The suit property comprises of a room on Eastern side of two khans which is part of joint family property consisting 3 of 5 khans as described in the plaint. Defendant No.2, as alleged, addicted to liquor since last 20 years. Defendant No.1 took advantage of this. Defendant No.1 is in possession of the property on the date of sale deed as tenant of Defendant No.2. The lease period is expired. However, Defendant No.1 is still in possession of the property. Both the Courts accepted the case of Respondents/plaintiffs and rejected Defendant No.1 that there was a legal necessity for Defendant No.2 to execute a sale deed. The various entries so relied upon by Defendant No.1, based upon the so-called receipt given by Defendant No.2 for respective payments in the form if irregularly maintained diary. There is a finding given that all those entries are not sufficient to consider the case of Defendant No.1 that those payments were towards the consideration of the sale deed in question. Exhibit "104" is nothing but a notebook maintained for writing grocery articles from grocery shop. There are certain blank pages. These entries are not in the handwriting of Defendant No.1. Defendant No.2 could not identify the handwriting. Even Defendant No.1’s witness could not identify the entries. Defendant No.1 is the maternal uncle of Defendant No.2. Defendant No.1 acted as Advisory in various matters. The submission that whatever amount mentioned in the diary that is totalling into Rs.30,000/- was the consideration of the sale deed was rightly rejected as 4 it is not in compliance with the provisions of Section 34 of the Evidence Act, by further observing that these entries are not sufficient to discharge anyone with liability as there is no other material to substantiate each entry to connect the payment for consideration towards the sale deed. 4. The payment to the extent of Rs.10,000/- towards medical expenses also could not be proved as the Doctors were not examined to support the same except one document which is of dated 28.09.1989. The said witness also not relied as the word "paralysis" was not mentioned in the said certificate. Other certificates were not exhibited about the medical treatment. There are no medical bills produced on record. Neither any material to show what kind of treatment Defendant No.2 was getting from the Doctor. Therefore, the amount to the extent of Rs.20,000/- paid by Defendant No.1 to Defendant No.2 was also remained unproved. Defendant Nos.1 and 2 further failed to prove that the money was borrowed for purchasing chakda in the year 1989. The Court also disbelieved the case of defendants that Defendant No.2 was not addicted to liquor. There is ample evidence on record to show that apart from the plaintiffs version that he was addicted to liquor. Defendant No.2 was not aware of his son-in-law and the expenses incurred for his daughter’s marriage and who 5 incurred the same. He did not even attend the marriage. From the evidence brought on record, there is no coordination between the plaintiffs and Defendant No.2. 5. There was no consent of any kind obtained while executing the sale deed in question. The power to alienate the joint family property for family necessity and/or for benefit of the estate so as to binding the interest of all undivided members of the family where there are adults, minors or widows is permissible provided in every such case legal necessity and such circumstances should be there. Once it is observed by both the courts that Defendant No.1 got executed sale deed under the influence of liquor without paying any consideration, no way supports the case of legal necessity and in this background and reasoning given by the courts below and as there is no perversity the same need no interference. The receipt of some money by Defendant No.2 even if any, that itself cannot be the reason to accept the case of Defendant No.1 as he failed to prove the legal necessity as the basic submission in support of his defence. 6. The facet that DW 1 and DW 3 attesting witnesses of the sale deed in question have categorically stated that one of the term in the agreement, apart from the recital, relating to the payment of Rs.30,000/-, 8 days 6 before the execution of the sale deed is wrongly written in the sale deed. Defendant No.1 himself has admitted that no consideration of Rs.30,000/- was passed on the date of sale deed. This admission of Defendant No.1 itself destroys the case of Defendant No.1 and whole evidence as relied strongly about consideration being paid from time to time, as observed above. In view of this, as the agreement was without consideration, both the Courts below rightly declared the same being null and void. The said transaction therefore is not binding on the plaintiffs, as observed. The plaintiffs, therefore, as observed by the courts below have pointed out the defects in the sale deed and transaction which nullifies the said transaction. 7. Defendant No.1 is in possession of the property. He cannot be evicted without following the due process of law and as he is enjoying the property, the Court has directed to pay the agreed rent of Rs.50/- from the date of the Suit till the recovery of the possession. Therefore, in totality and as there is no substantial question of law involved and as findings so arrived at cannot be said to be perverse and as sale deed itself declared null and void, there is no question of granting any order to the extent of undivided share of Defendant No.2 as sought to be contended in the matter, in the facts and circumstances of the case. Therefore, the 7 authorities so cited are also no assistance to the Appellant. 8. In the result, the Second Appeal is dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]