RSA No.2903 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2903 of 1984 Date of decision:29.03.2011 Shamsher Singh deceased through his legal heirs Defendant/Appellant Versus Nafe Singh and another ...Plaintiff/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. G.S.Jaswal, Advocate, for the appellant(s). Mr.R.S.Tacoria, Advocate, for the respondent. -.- JITENDRA CHAUHAN, J. The present appeal has been filed by the defendant No.1/appellant against the judgment and decree dated 8.9.1984 passed by the learned first appellate court allowing the appeal of the plaintiff/respondent against the judgment and decree dated 21.3.1984 passed by the learned trial Court dismissing the suit of the plaintiff for declaration. The case of the plaintiff/respondent Nafe Singh was that defendant No.2-Bharta is his real uncle and he sold the agricultural land measuring 16 kanals comprised in Khewat No.23, Khatoni No.31, Min Rect. No.52 and Killa No.14(8-0), 15(8-0) fully detailed in the head note of the plaint to defendant No.1/appellant Shamsher Singh vide registered sale- RSA No.2903 of 1984 2 deed dated 3.6.1976 without any legal necessity. It was further case of the plaintiff/respondent that the suit land was ancestral qua him and defendant No.2 Bharta Singh and therefore, the said sale-deed was null and void against the reversionary rights and interest of the plaintiff/respondent after the death of defendant No.2 Bharta. The plaintiff further claimed that they were Jats and are governed by Customary Law of Pargana Panipat in Haryana and therefore, Bharta could not sell the ancestral land except for legal necessity. The suit was contested by defendant No.1, who took the stand that the plaintiff/respondent had no locus standi to file the suit in question. He further pleaded that the suit land was self acquired property of defendant No.2-Bharta. He purchased the same from him in good faith for Rs.12,000/-. He also pleaded that defendant No.2-Bharta was a man of good character. The sale was for legal necessity as the defendant No.2/vendor had taken a loan from the Land Mortgage Bank and was unable to repay the same. The entire sale consideration was paid before the Sub-Registrar. However, defendant No.2 Bharta was not examined and given up as unnecessary by the counsel for the plaintiff. The following issues were framed by the learned trial Court:- 1. Whether the suit land was ancestral in the hands of vendor Bharta qua the plaintiff, as alleged? OPP 2. Whether the plaintiff and Bharta vendor are governed by customary law in matters of alienation of agricultural land? OPP 3. Whether sale-deed dated 3.6.76 executed by defendant No.2 Bharta in favour of defendant No.1 is illegal, null RSA No.2903 of 1984 3 and void, ineffective and not binding upon the plaintiff as alleged in the plaint? OPP. 4. Whether the plaintiff has got no locus standi to file the suit? OPD. 5. Relief. The trial court, after considering entire evidence, dismissed the suit of the plaintiff on the ground that the suit land was sold by the defendant No.2./vendor for legal necessity. Feeling aggrieved by the judgment and decree of the learned trial Court, the plaintiff preferred an appeal which was allowed by the learned lower appellate court vide judgment and decree dated 8.9.1984 by holding that the sale deed, Exhibit D1=Exhibit P5 made by the vendor is without legal necessity. However, the learned lower appellate Court maintained the findings on issues No. 1 and 2. Hence the present appeal. Learned counsel for the defendant No.1/appellant, Shamsher Singh, submitted that the sale-deed in question was executed for legal necessity. He further submits that as the land was uneven and of poor quality, the defendant No.2-Bharta (uncle of plaintiff) raised a loan from the Mortgage Bank. However, the defendant No2 could not repay the loan instalments due to his meager income and in these circumstances, he sold his ancestral property to defendant No.1/appellant. Thus, the learned counsel submits that sale-deed in question was executed for legal necessity. It has further been submitted that the vendor i.e. defendant No.1/Bharta specifically told the appellant that he was to start a Dairy after the alienation. Learned counsel also submitted that the vendor purchased a plot in Kishan Pura and raised construction thereon some time after the sale RSA No.2903 of 1984 4 of the property in question. Thus, it is established that appellant made bonafide enquiry about the existence of legal necessity. The learned counsel has lastly submitted that it cannot be said that the defendant misused the money being a fugitive spendthrift on account of his bad habits. There is nothing on record to suggest that the appellant was a bad character. It is well established that the defendant No.2 Bharta sold his ancestral property for legal necessity. On the other hand, learned counsel for the respondent/plaintiff submitted that the sale-deed in question executed by defendant No.2 was without any legal necessity . He had bad habits and wasted the money to meet the expenditure of a vagabond woman. Learned counsel has also submitted that vendee did not make any bonafide enquiry about the existence of the legal necessity. In fact no consideration amount was paid and the amount allegedly shown to have been paid at the time of registration of the sale-deed was taken back thereafter, as the vendor was under the influence of the vendee. I have heard the learned counsel for the parties and perused the record with their able assistance. The learned counsel for the appellant did not raise any substantial questions of law involved in the present appeal. However, at the asking of the Court, the learned counsel has placed on record the following proposed questions of law:- 1. Whether the discharge of bank loan from the sale proceeds makes the sale for legal necessity? 2. Whether the non-mention of legal necessity in the sale- deed is fatal to the interest of vendee and sale in his RSA No.2903 of 1984 5 favour can be set aside on this ground? 3. Whether the vendee should make enquiries regarding existence of legal necessity and thereafter use of sale consideration for said legal necessity? 4. Whether the plaintiff who has also sold the land falling to his share can challenge the sale on the ground of legal necessity? 5. Whether the vendee is required to mention in sale-deed and pleadings the legal necessity of his vendor and cannot otherwise prove it by way of evidence or admissions of the plaintiffs? The only question to be determined for this Court is whether the sale-deed in question, Exhibit D1=Exhibit P5, was executed for legal necessity? The vendee is required to prove two things:- (i) That the vendee made bona fide enquiries regarding existence of legal necessity. The legal necessity depends upon the requirement to sell the land by the vendor and it vary from case to case? (ii) That in fact there exists actual necessity to sell the land, which can be termed as `legal necessity'? To satisfy himself, the vendee has to believe the representation made by the vendor. No vendor would allow detailed enquries regarding his personal affairs of necessity to sell the land by the proposed vendee. As per the statement of Shamsher Singh, the appellant/vendee, DW1, the vendor i.e. Bharta took the loan from the Land Mortgage Bank, RSA No.2903 of 1984 6 Panipat. As the income of the vendor was meager, he could not repay installments of the said bank. It has also come on record that the defendant No.2 had taken loans from other persons as well. The statement of this witness further reveals that the suit land was uneven; banjar and of poor quality and the vendor Bharta was to start a business of dairy after the alienation. The present suit was filed after four years. A vendee is not supposed to chase a vendor for such a long period to see as to whether the vendor actually spent the money for stated purpose. The proposed vendee has only to see the existence of legal necessity. The vendee is to show that he has made bonafide inquiries. In the circumstances, it is established that the appellant made bonafide enquiry or believed that the vendor was selling the suit land for paying the loan taken from the bank, starting the dairy and on construction of house. As regards the contention of learned counsel for the appellant that the sale deed in question was for legal necessity, it is well proved on record that a loan was due against the vendor i.e. defedant No.2 Bharta. It has also come on record the land was uneven and of inferior quality as is made out from the Jamabandi, Exhibit P3 for the year 1961-62. The entry in Jamabandi regarding raising of loan sufficiently indicates that there was a necessity to alienate the suit property. Moreover, Dharam Singh, DW2, who is one of the attesting witnesses of the sale deed in question, also deposed that land was uneven and the Sub-Registrar himself called the Bank people and got deposited the amount with the Bank. Besdies this, the plaintiff also admitted in his cross-examination that the defendant No.2 Bharta took loan from the bank on the suit land. These circumstances clearly prove that the vendor had necessity to alienate the suit property. RSA No.2903 of 1984 7 There is recital in the sale-deed, Exhibit D1=P5 that the land in sale in question is infertile. On the same day i.e. 3.6.1976, the said Bharta-vendor executed another sale-deed in favour of Jagbir Singh. The said sale-deed of even date was also challenged by the present plaintiff/respondent Nafe Singh in Civil Suit No. 362 dated 9.6.1980 decided on 16.12.1983. That sale was also held to be for legal necessity vide judgment Exhibit D2 and decree-sheet Exhibit D3. In this case, Bharta, defendant No.2 was given up by the plaintiff vide statement of counsel for the plaintiff on 18.10.1980. He was the best person to explain the existence of legal necessity or as to where he had invested the sale consideration received by him. It is proved that the entire sale consideration was paid before the Sub-Registrar at the time of registration of the sale-deed. So the mouth of the vendor was shut at the very initial stage and he was not called to explain this material aspect. He was necessary and proper party, who was arrayed as defendant No.2 but later on given up by the plaintiff for the reasons best known to him. The suit was filed after four years. The proposed vendee has only to see the existence of legal necessity. The vendee is to show that he has made bona fide inquiries. In the circumstances, this Court feels that the learned trial Court has rightly observed on the basis of totality of the facts and circumstances that the vendor had sold the land to the appellant for legal necessity, who is bonafide purchaser for consideration. It is not established that the vendor suffered from any vice and the sale amount was not property utilised. The plaintiff has failed to produce any evidence on this aspect of the matter. In view of the above, the present appeal is allowed. The judgment and decree passed by the lower appellate court is set aside, RSA No.2903 of 1984 8 whereas the judgment and decree passed by the learned trial Court is maintained. The suit of the plaintiff is dismissed. There is no order as to costs. 29.3.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No