Sale of ancestral property is valid if executed for legal necessity, including debt repayment, especially when plaintiffs fail to prove ownership claims.

JUDGMENT :

H.P.SANDESH, J.

This matter is listed for admission. Heard the learned counsel appearing for the appellants.

2. The factual matrix of the case of the plaintiffs before the Trial Court that the plaintiff No.1 who is the wife of Lingegowda and also three daughters have filed the suit for the relief of partition and separate possession claiming that the suit schedule properties are the ancestral and joint family properties and also contend that they are entitled for the relief of partition and separate possession. Defendant No.2 who appeared before the Court has filed the written statement contending that he is the bonafide purchaser of the suit schedule property and he is in possession and enjoyment of the said property and suit is bad for non-joinder of necessary parties and the plaintiffs are not entitled for 1/5^th share as claimed in the plaint. Hence, the suit is liable to be dismissed.

3. The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. PW1 who is the wife of Lingegowda examined herself as PW1 and got marked the documents at Ex.P1 to P47. On the other hand, defendant No.2 examined as DW1 and two witnesses examined as DW2 and DW3 and got marked the documents at Ex.D1 to D22. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the sale was made for the legal necessities and in order to prove that remaining properties are ancestral and joint families properties, no document is placed on record and the Trial Court held that only with an intention to make wrongful gain, in collusion with defendant No.1, the suit is filed for the relief of partition and separate possession and the Trial Court also taken note of admission elicited from the mouth of witness - PW1 who categorically admitted that property was sold for clearing the loan and the same is for legal necessity and hence, dismissed the suit.

4. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred in R.A.No.12/2018. The First Appellate Court also on re- appreciation of both oral and documentary evidence placed on record comes to the conclusion that husband of plaintiff No.1 namely, late Lingegowda along with his son i.e., defendant No.1 had availed the loan from State Bank of Mysuru, Mandya. PW1 stated that loan has been repaid by selling the tractor, but nothing is placed on record to show that the loan was cleared by selling the tractor and also taken note of answer elicited from the mouth of PW1 that her husband was suffering from ill-health and she has spent money for his treatment. The Trial Court further observed that before executing the sale deed in favour of defendant No.2, defendant No.1 has executed an agreement of sale dated 03.11.2005 in favour of defendant No.2 The recitals of said sale agreement which is marked as Ex.D1 that the agreement is being executed a sd fno.1 requires funds for the upbringing of his minor children and for repayment of the mortgage loan at State Bank of Mysuru, Mandya and it is stated that fund is required for domestic needs and also executed the sale deed dated 27.02.2006 in favour of defendant No.2 pursuant to the agreement of sale dated 03.11.2005 and also take note of availing of loan and used of the sale consideration for the treatment of PW1’s husband and detail discussion was made that sale was made for the legal necessity and in order to prove that remaining properties belongs to joint family, nothing is placed on record and both the Courts have taken note of the material on record. The