IMPORTANT POINT
Where the Karta of Hindu Undivided Family with his four sons had executed the conveyance of ancestral property, in favour of the plaintiffs, the suit filed by the plaintiffs for possession cannot be dismissed on the ground of lack of legal necessity as the karta has power to alienate for value the joint family property either for necessity or for benefit of the estate.

Headnote:HINDU LAW—Ancestral Property—Alienation by Karta of Hindu Undivided Family—Issue of ‘legal necessity’— Land admeasuring 12 acres owned by, ancestral property, owned by one ‘N’ as ‘Karta’ of HUF and his family members—‘N’ had five sons including one ‘P’—‘N’ and his four sons excluding ‘P’ agreed to sell 9 acres of land out of the ancestral lands to the plaintiffs-respondents—‘P’ protested against the transaction and executed a conveyance deed in favour of appellants for an area admeasuring 2 acres out of 9 acres purchased by plaintiffs—Plaintiffs filed a suit for possession without seeking cancellation of conveyance executed by ‘P’ in favour of defendants—Trial Court decreed the suit holding that transaction between ‘N’ and plaintiffs was for legal necessity—In appeal, lower appellate Court held that in a suit for possession based on conveyance executed by karta and four coparceners, issue of legal necessity was redundant and that defendants were not the bona fide purchasers for value without notice—In second appeal, High Court upheld finding recorded by the trial Court that conveyance executed by ‘N’ in favour of plaintiffs was for legal necessity—Whether on facts and circumstances of the case, lower appellate Court was right in holding that issue of legal necessity was not a ‘fact in issue’ and was therefore not a relevant fact in a suit for possession—Yes—A karta has power to alienate for value the joint family property either for necessity or for benefit of the estate—Defendants claiming through ‘P’ did not sue for partition—They can take appropriate proceedings in accordance with law for specific demarcation of undivided share of ‘P’.
       Held : Nimbaji was the Karta of the Hindu Undivided Family. Lands admeasuring 9 acres and 16 gunthas was an ancestral property of Nimbaji. Nimbaji had five sons. Nimbaji and his four sons agreed to sell their ancestral lands to the plaintiffs. Agreement was reduced into writing. Agreement was registered. Agreement was followed by a conveyance. Conveyance was followed by possession given to the plaintiffs who claim to be forcibly dispossessed. Defendant nos.1 to 5 failed to institute proceedings for general partition. The primary step of defendant nos.1 to 5 was to sue for partition. They failed to take any steps in this regard. No consequential relief was claimed by them for partition and for demarcation for their share. The plaintiffs had instituted the suit for possession on the ground that they were forcibly dispossessed by defendant nos.1 to 5. Since the Karta of Hindu Undivided Family with his four sons had executed the conveyance in favour of the plaintiffs, the suit filed by the plaintiffs for possession cannot be dismissed on the ground of lack of legal necessity. A karta has power to alienate for value the joint family property either for necessity or for benefit of the estate. He can alienate with the consent of all the coparceners of the family. When he alienates for legal necessity he alienates an interest which is larger than his undivided interest. When the Karta, however, conveys by way of imprudent transaction, the alienation is voidable to the extent of the undivided share of the non-consenting coparcener which in the present case was Panditrao. In the present case, Panditrao did not sue for partition. He did not ask for demarcation of his share. Defendant nos.1 to 5 who claim through Panditrao seek possession of a specific portion of the land to be demarcated without filing a suit for partition by metes and bounds. The conveyance by Nimbaji and his four sons is not disputed by the said coparceners. The conveyance executed by Nimbaji and others is true which is different from saying that it is an imprudent transaction. Once it is found that the conveyance executed by Nimbaji and others is true under which the plaintiffs were put in possession and later on disposed, in the suit for possession, in such an event, the issue of legal necessity becomes irrelevant. A mere declaration that transaction was imprudent or was not for legal necessity in such a suit cannot give any right to defendant nos.1 to 5 to get the demarcated portion of 2 acres 2 gunthas of land on the southern side without the said defendants taking appropriate proceedings in accordance with law. (Para 11)
       Defendant nos.1 to 5 are seeking a certain specific portion out of the total area of 9 acres 16 gunthas to be allotted to them coming from the share of Panditrao. However, neither Panditrao nor their successors-in-title, namely, defendant nos.1 to 5 (appellants herein) instituted a suit for partition. In the circumstances, the lower appellate court was right in holding that legal necessity in the present suit for possession was not a “fact in issue”. All the courts below decreed the suit in favour of the plaintiffs. However, it is not in dispute that Panditrao was the non-consenting coparcener; that he had objected to the transaction by Nimbaji right from inception; that in the suit plaintiffs did not seek cancellation of the sale deed by Panditrao and, therefore, it will be open to the appellants herein to take appropriate proceedings in accordance with law for specific demarcation of the undivided share of Panditrao.(Para 15)

Judgement Key Points

Understood. Please provide the legal document content (inside tags or similar) and your specific question or task (e.g., summarize key obligations, identify risks, extract clauses), and I'll analyze it accordingly using the specified referencing format with square brackets for each distinct reference (e.g., (!) (!) ).

JUDGMENT

Kapadia, J.—The short question which arises for consideration in this civil appeal is : whether on the facts and circumstances of the case the lower appellate court was right in holding that the issue of legal necessity even if decided in favour of defendant nos.1 to 5 (appellants herein) was not a “fact in issue” and was therefore not a relevant fact in a suit for possession.

2. The facts giving rise to this civil appeal are as follows.

Land admeasuring 12 acres 16 gunthas in Survey No.218 situated within Chikhli Municipal Limits, District Buldhana, was owned by Nimbaji and his family members. It was an ancestral property. Nimbaji had five sons. One of his sons was Panditrao (defendant no.6). Nimbaji and his four sons excluding Panditrao agreed to sell 9 acres 16 gunthas out of the above ancestral lands to the plaintiffs (respondent nos.1 to 4 herein). The agreement was reduced to writing. It was registered on 18.3.75. It was followed by a conveyance dated 31.3.75. Panditrao was neither a party to the writing agreement nor to the sale deed. He did not consent. He protested against the transaction. Panditrao had entered into an agreement with defendant nos.1 to 5 on 5.11.74. It was an unregistered agreement. It was followed by a conveyance executed by Panditrao in favour of defendant nos.1 to 5 on 29.3.75. The transaction between Panditrao and defendant nos.1 to 5 was confined to an area admeasuring 2 acres and 2 gunthas of land out of 9 acres and 16 gunthas purchased by the plaintiffs. In the suit, defendant nos.1 to 5 claimed southern portion to be in their possession.

3. Plaintiffs contended that the agreement executed by Panditrao in favour of defendant nos.1 to 5 dated 5.11.74 was a fabricated antedated document, engineered to defeat the plaintiffs’ agreement with Nimbaji (karta) dated 18.3.75 under which plaintiffs were put in possession of the land admeasuring 9 acres and 16 gunthas on 18.3.75 and, therefore, though the defendants’ conveyance dated 29.3.75 is before the conveyance in favour of the plaintiffs dated 31.3.75 the plaintiffs were entitled to possession of the whole land admeasuring 9 acres and 16 gunthas. Accordingly suit for possession was filed by the plaintiffs on the basis of the conveyance deed dated 31.3.75. The plaintiffs, however, did not seek formal cancellation of the conveyance executed by Panditrao in favour of defendant nos.1 to 5 dated 29.3.75.

4. On the other hand, defendant nos.1 to 5 contended that their agreement dated 5.11.74 was genuine and first in point of time; that they had valid title to the land admeasuring 2 acres and 2 gunthas and that they were not aware of the agreement executed by Nimbaji in favour of the plaintiffs dated 18.3.75. The said defendant nos.1 to 5 further contended that the sale dated 31.3.75 by Nimbaji and the four coparceners was not for legal necessity and was, therefore, not binding on the sons of Nimbaji including Panditrao and consequently the conveyance executed by Panditrao in favour of defendant nos.1 to 5 dated 29.3.75 was good in law as Panditrao was a coparcener who had transferred his undivided share to defendant nos.1 to 5 in accordance with law.

5. Considering all the evidence on record and after hearing both sides, the trial court held that the agreement executed by Panditrao in favour of defendant nos.1 to 5 on 5.11.74 was fabricated and antedated; that there was no partition between Panditrao and his brothers and Nimbaji as alleged by defendant nos.1 to 5; and that the transaction between Nimbaji and the plaintiffs was for legal necessity. Consequently, the trial court decreed the suit in favour of the plaintiffs upholding conveyance dated 31.3.75 executed by Nimbaji in favour of the plaintiffs.

6. Aggrieved by the aforestated decision, defendant nos.1 to 5 went in appeal to the Additional District Judge, Buldhana, vide Regular Civil Appeal No.82 of 1986.

7. By judgment and order dated 12.3.1990 the lower appellate court came to th

Click Here to Read the rest of this document

2007 Supreme(SC) 96

Cases Referred (3)