Case: K. C. Kapoor Vs. Radhika Devi (Dead) By L. Rs. and Others

1959, defendant No. 2 received Rs. 800/- as consideration for the sale covered by exhibit A-l9.(c) No evidence had been produced to show that defend ant No. 2 had income of his own from which he could have saved enough money to be spent on the Lucknow building.We may add that there is definite evidence in the form of exhibit A-99 to the effect that in 1965 the family of defendant No. 2 consisted of nine souls and that he was then holding a subordinate position in the office of the Director of Health Service, U P., at Lucknow with a salary of no more than Rs. 240 per mensem. It goes without saying that his salary w as to meagre to have sufficed for the maintenance of the family and that any savings therefrom were out of question.Although each of the facts just above taken note of, when considered in isolation, may not enable the Court to raise a p resumption of the sufficiency of the requisite nucleus, collectively they constitute a formidable array and practically a clincher in favour of such a presumption, especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No. 2 had any source of income of his own other then his salary. And then the failure (referred to above) of plaintiff No. I to step into the witness-box is enough for the Court to raise another presumption, namely, that her deposition would not have supported the plaintiffs case. The onus of proof of the issue on the defendant was, therefore, very light and stood amply discharged by the facts noted in that behalf by the trial court, with whose finding on the point the first appellate court concurred. No case at all was thus made out for interference by the High Court with that finding.13. The High Court did not express any dissent from the conclusion concurrently reached by the trial court and the learned District Judge that the disputed sale constituted an act of prudence A on the part of defendant No. 2 and was on that account for the benefit of the family. We find ourselves in full agreement with that conclusion which too is based on full y reliable evidence and follows logically therefrom, as also with the reasons given by the two courts in support thereof. However, we may point to another significant factor which lends strength to that conclusion, the same being that defendant No. 2 was not only the Karta of the family and its sole adult male member at the time of the sale but was also the father of the only other two coparceners for whom he must naturally be having great affection and whose interests he would surely protect and promote, rather than jeopardise, there being no allegation by the plaintiffs that he was a profligate or had other reason to act to their detriment.14. The Lucknow house being the property of the joint Hindu family consisting of defendant No. 2 and his sons and the disputed sale being an act of good management, the latter must be held to be justified by legal necessity, which expression, as pointed out in Nagindas Maneklal and others v. Mahomed Yusuf Mitchella, (1) is not to be str ictly construed. In that case the facts were very similar to those obtaining here and may be briefly recapitulated. The joint Hindu family had several houses, one of which was in such a dilapidated condition that the Municipality required it to be pulled down. The adult coparceners contracted to sell it to a third person. The joint family was in fairly good circumstances and it was not necessary to sell the house which, however, could not be used by the family for residence and would not have fetched any rent. In a suit for specific performance of the contract to sell instituted by the purchaser, the minor coparceners contended that the contract did not affect their interest in the absence of "necessity" for the sale. In repelling the contention, Shah, J., who delivered the leading judgment of the Division Bench, referred to the manner in which the expression kutumbarthe had been construed by Vijnanesvara in the Mitakshara and observed:"The expression used must be interpreted with due regard to the conditions of modern life. I am not at all sure that Vijnanesvara intended to curtail the scope of the word kutumbarthe while explaining it. I do not see any reason why a restricted interpretation should be placed upon the word necessity so as to exclude a case like the present in which defendants Nos. I and 2, on all the facts proved, properly and wisely decided to get rid of the proper ty which was in such a state as to be a burden to the family. I think that the facts of the case fairly satisfy the test."Fawcett., J., who agreed with these observations added a separate short note of his own and rel ied upon the following passage in Hunoomanpersaud Pandey v. Mussumat Babooee Munraj Koonweree, (1)"But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, t he bona fide lender is no. affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be rearded." (Emphasis supplied)Although these remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law, it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical.15. The perimeters of the expression kutumbarthe, as interpreted in Nagindass case (supra) which meets with our unqualified, approval, fully embrace the facts of the present case in so far as legal necessity for the disputed sale is concerned.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. After hearing learned counsel for the parties at great length we have no hesitation in recording our disagreement with the High Court on the findings reached by it in relation to both the points canvassed before it, namely, those of estoppel and legal A necessity, and are fully satisfied that it stepped outside the limits of its jurisdiction when it interfered with the conclusions of the fact arrived at by the learned District Judge on the basis of fully acceptable evidence and a correct appreciationare clearly of the opinion that the High Court erred in taking either of these circumstances as a minus point for defendant No. 1. In so far as the written statement is concerned it contains a definite plea in para 15 to the effect that if the disputed property is proved to joint be Hindu family property, its transfer was made by the Karta for legal necessity so that it was binding on the family. Was it then incumbent on defendant No. I to further plead how he proposed to prove the legal necessity? This question was pointedly posed to learned counsel for the plaintiffs during the course of arguments and although his answer was in the affirmative, he could quote neither law nor precedent in support of the same.It may also be pointed out that no objection by the plaintiffs was ever taken at any stage of the trial to any lack of particulars of the legal necessity set up by defendant No. I in paragraph 15 of the written statement. On the other hand they were fully posted about what case they have to meet on the point by reason of the contents of that paragraph itself in which it was specifically asserted that the disputed house was sold by defendant No. 2 "for the purpose of building a more profitable and advantageous house at Lucknow and with a view to dispose of a construction which was old and in perilous condition and which was of no present utility." In view of this averment it was fully open to defendant No. 1 to prove by evidence that putting up a second storey in the Lucknow house constituted legal necessity and, in the process, to establish that the Lucknow house was owned by the said coparcenary. Again, no objection was taken at the evidence stage to the right of defendant No. I to show that the Lucknow house was so owned and thereby to prove the existence of legal necessity for the sale. No fault can thus be found with the case of defendant No. l on the ground of his failure to take a specific plea in the written statement abount the ownership of that house vesting in thewas the High Court right in putting the construction that A it did on the testimony of defendant No. I as DW-3 to the effect that to hi s knowledge defendant No. 2 was the sole owner of the Lucknow house. Obviously all that he meant was that according to such knowledge as he had, the Lucknow house vested in the exclusive ownership of defendant No. 2; and that knowledge, in the circumstances of the case, could be no more than a belief arising from what he was told by defendant No. 2 who had been at pains to stake his claim to the exclusive ownership of all the property under his control, including the property left b y his father. In this connection we cannot lose sight of the fact that defendant No. 1 was a total stranger to the family of the plaintiffs and in the very nature of things could not have had any personal knowledge referable to the actual manner in and the precise source from which either the Lucknow house or, for that matter, the Rae Bareli property was acquired, such manner and source being within the special knowledge of plaintiff No. I and defendant No. 2 only. That part of t he deposition of defendant No. I which the High Court has pressed into service against him, cannot, therefore, form the basis of solution to the question of the ownership of the property.12. In the present case both plaintiff No. l and defendant No. 2 have stayed away from the witness-box and have thus deprived the Court of the only real evidence which could throw light on the source of the consideration paid for the purchase of the Luck- now house. There may be some force in the argument that no duty was cast upon defendant No. 2 to appear as a witness in as much as he was not a contesting party, but than such an excuse is not open to plaintiff No. 1 who was actively contesting the case in the trial Court on behalf of herself and her two grand-children. It is in the light of this significant circumstance that the Court must decide whether or not defendant No. l has been able to discharge the burden of proving that the Lucknow house was purchased with joint Hindu family funds. This important aspect of the matter was completely lost on the High Court although it was an unassailable ground when it formulated the proposition that before a presumption could be raised that a property acquired by a member of a joint Hindu family could be regarded as the property of the family, it must be shown that the family owned other property which could be regarded as a nucleus providing a sufficient source for the later acquisition. Furthermore, in assessing the evidence on that point, the High Court referred only to two facts, namely, that S.D. Misra left immovable property and cash at the time of his death and that property continued to yield some income thereafter, but paid no heed to at least three other important circumstances which had been listed by the trial court in support of the finding that a sufficient nucleus for the purchase had been proved. Those circumstancesThe family received compensation for theeach of the facts just above taken note of, when considered in isolation, may not enable the Court to raise a p resumption of the sufficiency of the requisite nucleus, collectively they constitute a formidable array and practically a clincher in favour of such a presumption, especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No. 2 had any source of income of his own other then his salary. And then the failure (referred to above) of plaintiff No. I to step into the witness-box is enough for the Court to raise another presumption, namely, that her deposition would not have supported the plaintiffs case. The onus of proof of the issue on the defendant was, therefore, very light and stood amply discharged by the facts noted in that behalf by the trial court, with whose finding on the point the first appellate court concurred. No case at all was thus made out for interference by the High Court with thatthese remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law, it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical.After hearing learned counsel for the parties at great length we have no hesitation in recording our disagreement with the High Court on the findings reached by it in relation to both the points canvassed before it, namely, those of estoppel and legal A necessity, and are fully satisfied that it stepped outside the limits of its jurisdiction when it interfered with the conclusions of the fact arrived at by the learned District Judge on the basis of fully acceptable evidence and a correct appreciationffs Nos. 2 and 3 being minors that question does not arise in their case and it is only in relation to the half share of plaintiff No. I in the disputed property that it calls for ait is true that defendant No. I had made enquiries regarding the title of defendant No. 2 to the property in dispute and the latter had made an unequivocal representation that he alone was the owner thereof, but then it was only after the lady ha d been consulted and had told her son to go ahead with what he thought proper as he was the owner of the property that receipt exhibitwas executed. Till then defendant No. I was not fully satisfied about the title of defendant No. 2 and had not only raised the question with defendant No. I at Lucknow but even after the assurance given by the latter in communication exhibitinsisted on the municipal records being produced for his inspection. The inquiry into the title was, th erefore, very much in progress when defendant No. 2 consulted his mother in the presence of defendant No. 1. This was presumably done to ally the lurking suspicion in the mind of defendant No. 2 as to the title to the entire property vesting in defendan t No.contention suffers from two important infirmities. Under section 3 of the 1937 Act, plaintiff No. I would have succeeded to a half share only if S.D. Misra had died intestate. So the question would be whether or not S.D. Misra left a will. The concession made before the High Court on the point of inheritence of a half share by plaintiff No, I was obviously based not on any facts within the knowledge of defendant No. 1 but on the circumstance that nobody had talked of any will by S.D. Misra. Whether or not such a will was made was a fact specially within the knowledge of plaintiff No. I and, as stated earlier, that she remained absent from the witness box so that the Court is left in the dark as to what was the actual state of affairs. The onus of proof of the allegation that she was the owner of a half share in the property at the time of the sale was on her and she was duty bound to depose to facts which would make section 3 a foresaid applicable to her case. Her failure to depose to the existence thereof must result in a finding that she has failed to prove the issue., even if it be assumed that plaintiff No. I succeeded to a half share in the p roperty of S.D. Misra, there was no impediment in the way of her relinquishing that share in favour of her son either immediately after her husbands death or at any other point of time prior to the disputed sale. This aspect of the matter canno t be lost sight of in view of the fact that on S. D. Misras death all his property was mutated in favour of his son to the exclusion of plaintiff No. 1 and was all along being dealt with by him as its sole and absolute owner without any objection whatsover having been raised by her at any point of time to such exclusion orthe above situation defendant No. I was fully justified in A accepting her word on the point of ownership, the said section 3 notwithstanding.e above discussion of the evidence has been entered into by us merely to show that the finding given by the learned District Judge on the point of estoppel was eminently reasonable and that the short ground on which the High Court turned the tables on defendant No. I was untenable. That finding of the District Judge being a finding of fact and being based on good evidence, it was not open to the High Court to interfere with it in a secondcombined reading of paragraphs 14 and 16 of the written statement, hower, furnishes a complete answer to the contention. The representation said to have been made by plaintiff No. I is set out in paragraph 14 while the plea that she was estopped from contesting the sale is taken in paragraph 16. It is true that the plea last mentioned is linked with "the active consent and approval of plaintiff No. I and not in so many words with the said representation. It can also not be disputed that defendant No. I did not specifically state that he purchased the disputed property in the belief that the representation was true and that he would not have entered into the transaction but for that belief. Thus undoubtedly the written statement is inartistically drafted and leaves much to be desired, but then pleadings are not to be construed in such a hypertechnical manner and what is to be seen is whether the allegations made in paragraphs 14 and 16 gave sufficient notice to the plaintiffs of what case they had to meet. In this connection we may refer to the significant fact that no objection to the lack of particulars was taken at the stage when issues were framed or later when statements of parties counsel were recorded on a subsequent occasion or during the course of arguments addressed to the trial Court, the District Judge and the High Court. even though the issue of estoppel was hotly contested before all three of them. All these circumstances unmistakably indicate that the case put forward by defendant No. I was throughout understood by the plaintiffs to be that it was the belief induced in him by the representation of plaintiff No. l which made him accept the tit le of defendant No. 2 as bein exclusive. In this view of the matter it is too late in the day for the plaintiffs to raise the contention under consideration and we have no hesitation in rejecting it asthis connection the High Court observed that not only defendant No. I did not plead in his written statement that the Lucknow house was the property of the coparcenary but that he also stated in the witness box asthat to his knowledge defendant No. I was the so le owner of that house.