1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 377 OF 2007 Sheshabai w/o Gangadhar Khanderaya & others Appellants Versus Kamabai w/o Devba Yashwante & others Respondents Mr. S.N. Janakwade, Advocate holding for Mr. P.R. Katneshwarkar, Advocate for the appellants. ==== CORAM: R.M.BORDE, J. DATE : 24th September, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the judgment and decree passed by the Additional District Judge, Biloli in Regular Civil Appeal no. 36/1994 whereby judgment and decree passed by the Jt. Civil Judge, Jr.Dn., Biloli in Regular Civil Suit no. 588/1986 decided on 31-1-1994 came to be quashed and set aside and the first appellate court directed dismissal of the suit. 2 Plaintiffs instituted suit claiming recovery of possession of the suit property and further declaration that the registered sale-deed executed by 2 defendant no. 1 in favour of other defendants on 21-7-1977 be declared as illegal and not binding on the rights of the plaintiffs. Defendant no. 1 is the father of plaintiffs. Property involved in the dispute is admittedly joint family property of plaintiffs and defendant no. 1. It is contended that the property had been alienated by defendant no. 1 without there being any legal necessity and as such sale transaction in respect of the ancestral property does not bind the plaintiffs. It is further contended that sale-deed executed in favour of defendant nos. 2 and 3 is without any consideration and thus is illegal. 3 Defendant no. 1 did not appear and suit proceeded ex-parte against him. Defendant nos. 2 and 3 appeared and resisted the claim by filing written statement. According to them, property has been alienated by defendant no. 1 for meeting the family necessities. Transaction is valid and legal. Defendant nos. 2 and 3 have paid consideration amount to defendant no. 1 who is not making any grievance in that behalf. 4 Considering the evidence led by the parties, trial court granted decree in favour of the plaintiffs holding that the transaction entered into by defendant no. 1 in favour of defendant nos.2 and 3 is null and void. Judgment and decree passed by the trial court was subjected to challenge 3 at the instance of defendant nos. 2 and 3 in Regular Civil Appeal no. 36/1994 which came to be heard and disposed of by the Additional District Judge, Biloli who was pleased to allow the same. 5 I have perused the judgments recorded by the courts below. So far as defendant no. 1 is concerned, he has not participated in the suit. In the absence of evidence of defendant no. 1 in respect of receipt of consideration, it cannot be said that the transaction between defendant no. 1 and defendant no. 2 is without any consideration. Apart from this, it has been established by the defendants by leading evidence of DW 1 Anant who is the secretary of Seva Sahakari co-operative society that defendant no. 1 was indebted to the society as well as had borrowed loan from Land Development Bank. After execution of the sale-deed, defendant no. 1 repaid amount of Rs.1,000/- to the Seva Sahakari society whereas amount of Rs.1004.57/- was paid towards repayment of loan. Thus, on the basis of evidence led by defendants, it can be safely concluded that defendant no. 1 was indebted to the financial institutions and in order to meet the financial liability he has alienated the suit property. What is excepted of defendants is to lead evidence as to existence of the legal necessity for entering into the transaction. It is not necessary for the defendants to prove application of funds received by the seller. Defendants have discharged their burden of 4 proving the existence of legal necessity for entering into transaction of sale by defendant no. 1. The view adopted by the first appellate court cannot be said to be erroneous. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa377.07.odt