Sales of ancestral property require evidence of legal necessity, and the burden lies on the purchaser; lack of evidence invalidates claims of necessity.

JUDGMENT :

Mr. Anant Ramanath Hegde, J. - The dismissal of the suit for partition in O.S.No.176/2017 on the file of the Principal Senior Civil Judge, Gokak, has given a cause of action to plaintiff No.1 to file this appeal.

2. The admitted genealogy of the parties is as under:-

3. Maruti is the propositus and he is the first defendant. His wife Lagamawwa predeceased Maruti. The couple had two sons, Pundalik and Kallappa (second and third defendants) and two daughters, Rukmini and Renuka. Rukmani is the plaintiff and Renuka is defendant No.4. The children and wife of Pundalik have also joined Rukmini in filing the suit for partition. There are seven properties described in the plaint as the suit properties.

4. The suit is contested by 5th and 6th defendant. The said defendants are the purchasers of the property at Sl.No.5 under registered sale deed dated 22.11.2002 which is marked at Ex.P9. The said sale deed is executed by defendant No.1-Maruti. The wife of Maruti-Lagmawwa and the sons, Pundalik and Kallappa have also signed the sale deed as consenting parties.

5. On 28.01.2011, item Nos.1 to 4 properties are sold by defendant No.1 in favour of defendant No.7. Defendants No.2 to 4 have consented for the sale. The consenting parties to the sale did not contest the suit.

6. The trial Court has taken a view that sale is for the legal necessity and consequently, dismissed the suit. Aggrieved by the aforementioned judgment and decree, plaintiff No.1 is in appeal.

7. The learned counsel for appellant-plaintiff No.1 submits that the trial Court committed an error in holding that defendant No.1 has sold the property for legal necessity, in the absence of plea and evidence in this regard. It is also his contention that the properties are admittedly ancestral properties and this being the position, the sale transaction dated 28.01.2011 in respect of item Nos.1 to 4 properties could not have been held to be valid sale as the plaintiffs had acquired right in the property by reason of the birth in the family.

8. The learned counsel for defendants No.5 and 6- the purchasers would urge that the sale transaction in respect of item No.5 property took place on 22.11.2002 and assuming that the properties are the ancestral properties, the sale transaction effected before 20.12.2006 are saved in terms of the Amendment to section 6 of the HINDU SUCCESSION ACT , 1956, and if the properties are held to be the separate properties of Maruti, then also the sale transactions are valid transactions as the plaintiffs cannot question the sale effected by Maruti during his life time. Thus, he would defend the judgment and decree dismissing the suit in respect of item No.5 property.

9. This Court has considered the contentions raised at the Bar. The following point arises for consideration:-

"Whether the trial Court is justified in holding that the alienation of item Nos.1 to 4 properties are for legal necessity"

10. It is to be noticed in paragraph No.3 that plaintiffs have raised the contention that the suit properties are the ancestral joint family properties and item No.5 property was purchased from the income from item Nos.1 to 4 properties. To this plea, there is no contest by the sons of Maruti. Ex.P3 would clearly reveal that the properties at Serial No.1 to 4 are inherited after the death of Dundappa-the father of Maruti. Thus, the plea that the properties are the ancestral properties is very much established. When that being the position, all the children of Maruti acquired right in the properties at Serial No.1 to 4 by reason of birth in the family. Though the trial Court has taken a view that the sale of the year 2001 is for the legal necessity, the evidenc