IMPORTANT POINTS
(1) Right of a Karta to sell joint family property is well settled – Karta enjoys wide discretion with regard to existence of legal necessity and in what way such necessity can be fulfilled – Whether legal necessity existed justifying sale would depend on facts of each case.
(2) Onus of proof on stranger-purchaser cannot run counter to principle of reverse burden enshrined in Section 106 of Evidence Act, 1872 and saddle him with liability to prove facts which are within special knowledge of coparceners of HUF.

JUDGMENT

Joymalya Bagchi, J.

1. The appeal is directed against judgment and decree dated 12.01.2007 passed by the High Court of Karnataka reversing the judgment passed by the Principal Civil Judge (Senior Division), Gulbarga [Hereinafter referred to as ‘the Trial Court’] in OS No. 93 of 2000 and decreeing partition and separate possession of half share of the suit land [Land measuring 9 acres 1 gunta in Survey No. 49/2, Bablad Village, Taluk and District Gulbarga, Karnataka] in favour of the plaintiff-respondent no.7 [Hereinafter referred to as ‘Plaintiff’] herein.

2. For clarity, parties are referred as per their status before Trial Court. The plaintiff’s case is as follows:

(i) 1st defendant-Sharanappa [Hereinafter referred to as ‘1st defendant’] is the plaintiff’s father. He had four sons, namely, Kashiraya-plaintiff, Bhimaraya- 2nd defendant [Hereinafter referred to as ‘2nd defendant’], Mahalingappa-3rd defendant [Hereinafter referred to as ‘3rd defendant’] and Ravichandra-4th defendant [Hereinafter referred to as ‘4th defendant’]. They constituted a Hindu Undivided Family [‘HUF’ for short] and 1st defendant was the Karta of the HUF. The suit land belonged to the HUF. 1st defendant was addicted to alcohol and indulged in bad habits. To meet his wayward lifestyle he had sold various parcels of land belonging to the HUF for meagre consideration. When the plaintiff objected, 1st defendant promised he would make fixed deposits in the name of all his sons and will not sell the suit land. He also stated he would settle larger sums in favour of 3rd and 4th defendants, and the suit land shall be divided amongst the plaintiff and the 2nd defendant. 1st defendant did not deposit any money in the name of plaintiff and 2nd defendant but deposited large amounts in favour of 3rd and 4th defendants, and colluded with the latter to execute a sale deed in respect of the suit land in favour of the 5th defendant-appellant [Hereinafter referred to as ‘5th defendant’] on 26.07.1995 without consideration or family necessity. The plaintiff was unaware of the sale transaction till December, 1999 as the possession had not been handed over to the 5th defendant. Upon enquires in December, 1999 the plaintiff came to know of the said sale and was assured by defendant nos.1 and 3 to 5 that the deed shall be cancelled.

(ii) When the defendants failed to cancel the deed and tried to alienate the suit land to other parties, he filed the suit seeking declaration that the sale deed dated 26.07.1995 was null and void. He also prayed for partition and separate possession of the suit land.

3. During the pendency of the suit, 1st defendant-Karta died. 5th defendant contested the suit by filing written statement wherein he inter alia contended 1st defendant had agreed to sell the suit land for a valuable consideration. On 18.06.1994, he received Rs.1,00,000/- out of the said consideration and executed an agreement for sale. The agreement for sale as well as the money receipt was signed by his wife-Siddamma, daughter- Kashibai and 4th defendant-coparcener. On 26.07.1995, 1st defendant obtained the remaining consideration and executed a document which was signed by defendant nos. 3 and 4. Upon payment of the entire consideration, the sale deed was executed showing the sale consideration as Rs.72,000/- for court fee purposes. The sale had been executed by 1st defendant for legal necessity owing to the marriage of his daughter Kashibai. After the sale he was put in possession of the suit land as evident from mutation certificate, land revenue records, etc. The suit was a collusive one and is not maintainable as all the properties of the HUF and other parties had not been joined in the suit.

4. The Trial Court framed eleven issues including the following:

“1. Whether the plaintiff proves that he is entitled to share in the suit land? If so, to what extent?

2. Whether the plaintiff proves that he is in joint possession of the suit property?

………….

6. Whether defendant no.5 prove