1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 195 OF 1990 01. Narhari Bhiva Dhok age major, occupation agriculture,resident of Samdarga, Taluka Ausa, Appellant/ori. District Latur. Defendant No.2 versus 01. Bhairu Pandu Dhok, age major, occupation labourer,r/of Samdarga, now at Ausa,Dist.Latur. 02. Rukminibai w/o Pandu Dhok age major,occup.Labourer, r/of Samdarga,now at Ausa, 03. Pandu Bhairu Dhok, Respondents/ age major, occup.labourer, Nos.1 & 2 are r/of Samdarga,now at Ausa, orig.pltffs. District Latur. No.3 is orig. Deft. No.3. -------------------------------------------------- Shri S.V.Chandole, Advocate holding for Shri V.G.Sakolkar, Advocate for the appellant. Shri Karkare, Advocate, holding for Shri P.L.Joshi for Respondent Nos.1 and 2. Respondent No.3 is served. -------------------------------------------------- 2 Coram : P.R. Borkar, J. Date : July 12, 2010 ORAL JUDGMENT 01. This second appeal is filed by original Defendant No.2, being aggrieved by the judgment and decree passed by the learned Civil Judge, Junior Division, Ausa, in Regular Civil Suit No.29 of 1979 decided on 29.11.1982 as modified by the learned District Judge, Latur in Regular Civil Appeal No.195 of 1982 decided on 19.7.1988. 02. Briefly stated, the facts giving rise to this appeal are as under; Present appellant is the original defendant No.2. Present Respondent Nos. 1 and 2 are the original plaintiffs and Respondent No.3 is the original defendant No.3. Original Defendant No.1 Gangaram Mali is not a party to this second appeal nor was he party to the first appeal that was filed by present appellant (Deft.No.2) before the District Court. Original defendant No.1 did not challenge the decree passed by the learned Civil Judge, Junior Division, Ausa. Respondent Nos. 1 and 2 (ori.plaintiffs) are 3 admittedly son and wife of Respondent No.3 Pandu Dhok. Pandu Dhok had sold his properties by three sale deeds. The first sale deed executed by Pandu Dhok is dated 7.2.1974 (Exh. 33). It is in favour of present appellant- defendant No.2 Narhari. It is stated that 1 hectare 59 R.land out of survey No.12/7 was sold for Rs.2500/= for satisfaction of loan. Thereafter two sale deeds (Exhibits 34 and 35) were executed by Respondent No.3 Pandu on 21.11.1975. Sale deed Exh.34 was in favour of appellant Narhari for Rs.1500/= thereby selling land of 2 acres 2 gunthas out of survey No.12/H of village Samdarga, Taluka Ausa. By second Sale deed on same day separate land admeasuring 2 acres 2 gunthas out of the said survey number 12/H was sold in favour of original Defendant No. 3 Gangaram Mali for Rs. 2000/=. It is mentioned therein that the sale was for satisfaction of lands and for meeting family expenses. Plaintiffs challenged the sale deeds by filing suit. 03. The trial court held that the present appellant (Deft.No.2) and original defendant No.1 failed to prove the legal necessity in alienating the properties and held that the sale deeds in their favour are not binding sofar as shares of present Respondents No.1 4 and 2 (Orig. plaintiffs) are concerned. The trial court also declared that each of plaintiffs No. 1 and 2 has 1/3rd share in survey No.12/H. Accordingly, the trial court decreed the suit for partition and separate possession. 04. As stated earlier, original Defendant No.1 did not file any appeal against the said decree of the trial court. However, original Defendant No.2 filed Regular Civil Appeal No. 195 of 1982 in the District Court, but he did not make Defendant No.1 as party to the said appeal. The District Court discussed the evidence and came to the conclusion that so far as sale deed dated 21.11.1975 (Exh.34) is concerned, as on 21.11.1975 there was legal necessity inasmuch as marriage of daughter of Defendant No.3 Pandu was to be performed and it was performed in first part of the year 1976. As per the discussion in paragraphs 4 of the first appellate court's judgment, present appellant had failed to prove the legal necessity for the sale deed dated 7.2.1974. The learned Judge further observed in paragraph 15 of his judgment that present Respondent No.2 had not only signed the sale deed (Exh.34) but had remained present throughout the process of execution of the 5 sale deed and was party to the same and as such was aware of the transaction. It is, however, observed that it is not clear whether she was de-facto guardian of plaintiff No.1 (present Respondent No.1) 05. In paragraphs 18 and 19 of his judgment, the learned District Judge drew following conclusions. "18.Thus, after having reviewed the evidence thoroughly, I have no difficulty in reaching the conclusion that the single transaction on 21st of November 1975, made through exhibit 34, was not only surrounded, but actuated by the necessity, a legal and family necessity of actuated by the necessity, a legal and family necessity of raising the funds for the marriage of the daughter of the family of Respondent-Defendant No.3 and also that the respondent Plaintiff No.2 had supported the alienation. We need not go into the minor and delicate shades of interpretation of law regarding the consent of a lady standing in the position of Respondent-Plaintiff No.2 vis-a-vis the present complexion of the joint family after the enforcement of the Hindu Code and her right in that behalf. 19. Thus to conclude in the light of the above discussion and analysis of the evidence and the implication of law, I am inclined to feel and, therefore, rule that been the decree of partition awarded by the learned Judge in the trial Court in respect of the piece of land to the extent 6 of 2 acres and 2 gunthas fully detailed out in exhibit 34 shall have to be deleted or eliminated. The decree for partition for rest of the land deserves to be endorsed. The balancing position as the parties stand in prevents me from burdening one set of parties with the costs suffered by the other. " 06. This second appeal is admitted on 8.6.1990 without framing any substantial question of law. However, from the facts of the case, following can be considered to be substantial question of law. "Whether the first appellate court committed error in not specifically declaring that the sale deed Exh.34 is binding on the plaintiffs ? 07. It is abundantly clear from the observations of the learned District Judge quoted above that he wanted to declare that the sale deed Exh.34 in favour of the appellant is binding on the plaintiffs and that the same was executed by Respondent- Defendant No.3 for legal necessity. However, in the final order that was passed, the learned District Judge did not make it clear whether the portion of 2 acres and 2 gunthas in respect of which he allowed the appeal, was the one which was sold to original Defendant 7 No.1 Gangaram Mali or the one that was sold to present appellant (Defendant No.2). It may be noted that as per the sale deeds dated 21.11.1975, two separate portions admeasuring 2 acres 2 gunthas each were sold to Defendant No.1 and Defendant No.2. So, there were two separate sale deeds. It may also be noted that the sale deed executed by Respondent No.3 Pandu in favour of original Defendant no.1 was not the subject-matter of the appeal and it does not appear that the learned District Judge referred to the same in his judgment. 08. In the facts and circumstances of the case, it is rightly argued by learned counsel for the appellant that things may be made clear. It be declared that sale deed Exh.34 in favour of the appellant by Respondent No.3 is binding on Respondent Nos. 1 and 2. So far as sale deed dated 7.2.1974 (Exh.33) is concerned, there are concurrent findings of fact by both, the trial court and the first appellate court, to the effect that the said sale deed was not for legal necessity. Since it is a concurrent finding of fact, I do not wish to interfere in the same. 8 09. In the result, this second appeal is partly allowed. It is made clear that the sale deed (Exh.34) executed by Respondent No.3 in favour of present appellant is binding on Respondent Nos.1 to 3 and as such the land sold under the said sale deed to present appellant shall not be the subject matter of the partition. Appeal is dismissed so far as earlier sale deed dated 7.2.1974 is concerned. pnd/sa195.90 (P.R.BORKAR, J.) 9