2013 Supreme(Bom) 2235

In the High Court of Bombay at Nagpur
S.B. SHUKRE, J.
Sou. Parvati & Others
Versus
Sk. Rasul & Another
Second Appeal Nos. 328 of 1994 & 90 of 2009
Decided on : 11-11-2013

Headnote:HINDU LAW - Sale of joint family property. - Where financial position of joint family of plaintiff was sound therefore in absence of any legal necessity, sale of joint family property, null and void. - No doubt deceased defendant No. 2 in his written statement had contended that since he was in need of money for agricultural purposes and also for repayment of loan, which he had taken from the Society, he had sold suit land No. 1 to defendant No. 1 for consideration of Rs. 4,500/- and that he had also received the said consideration amount. In his deposition before the trial Court vide Exh. 78, deceased defendant No. 2 initially also stated that he had sold suit land No. 1 for consideration of Rs. 4,500/- to defendant No. 1 because he was in need of money for paying the debts of the Bank. But, later on, when he was cross-examined thoroughly by counsel for the plaintiffs, he gave certain important admissions. He stated that there was no necessity for him to sell suit land No. 1 to defendant No. 1 as his financial position was good and that defendant No. 1 got executed from him the sale deed when he was under the influence of liquor. He further admitted that he used to consume every day liquor to the extent of 100 ml.

       Aforestated admissions were required to be considered by both the Courts below very minutely also for the reason, apart from legal reasons, that it was the case of the plaintiffs that financial condition of the joint family of plaintiffs and defendant No. 2 was good and there being no legal necessity existing for sale of suit land No. 1, the transfer of suit land No. 1 by defendant No. 2 to defendant No. 1 was not legal and binding upon the plaintiffs. The evidence led by the plaintiffs‘ side had also sufficiently established the fact that defendant No. 2 was a spoilt man, who wasted his time, energy and property on liquor.

       The trial Court with such nature of the case and evidence on record indeed scrutinized the said admissions of deceased defendant No. 2 threadbare under a magnifying glass, when it found that these admissions received much support from the other attending facts and circumstances of the ease. The trial Court particularly found that the sale deed of suit land No. 1 vide Exh. 82 was a registered document and as such had its own importance in the eyes of law. It found that nowhere in the body of the sale deed at Exh. 82 was there any mention about the fact that defendant No. 2 had sold the suit land to defendant No. 1 to meet any legal necessity of his joint family or for making payment of outstanding loan amount of the society There were no recitals to this effect in the sale deed and, therefore, the aforestated admissions given by deceased defendant No. 2 assumed great importance.

       HINDU LAW - Sale of joint family property by "karta". - In absence of any legal necessity for sale of joint family property, sale of same by `karta’ of joint family, null and void. - In the instant case, it can be seen from perusal of record of case that the finding of fact regarding absence of legal necessity returned by trial Court is the result of elaborate consideration of the evidence brought on record by both the sides and particularly the admissions given by deceased defendant No. 2 in his cross-examination taken on behalf of the plaintiffs. While doing so, the trial judge had also considered the background facts and circumstances of the case. However, this finding of the trial Court has been reversed by the appellate Court and it appears that the appellate Court only relied upon the of deceased defendant No. 2 as appearing in his examination-in-chief and also his specific contentions raised in his written statement. The appellate Court did not consider the other attending facts and circumstances of the case and also ignored the admissions given by deceased defendant No. 2 in his cross-examination taken on behalf of the plaintiffs. The first appellate Court ought to have considered the statements in cross-examination as well, for, when a Court considers oral evidence, it must consider all the statements made in the examination-in- chief cross-examination and re-examination, if any, and not a few of them selectively. It is a different matter that the Court accepts or rejects all or some of the statements as being reliable or unreliable, as the case may be, but must it consider them all. The reason is that under Section 3, Indian Evidence Act, 1872, oral evidence means and includes all statements permitted or required to be made before the Courts in relation to matters of fact under inquiry. When it is said that Court is under a legal duty to consider oral evidence, it must consider all statements in examination-in-chief as well as cross- examination of the witness in view of well defined meaning of `oral evidence’ under Section 3, Indian Evidence Act, 1872. This has not been done in this case and, therefore, it must be said that the whole process of scrutiny of evidence available on record and particularly the evidence of deceased defendant No. 2 undertaken by the first appellate Court, in the facts and circumstances of this case, was flawed and also perverse.

       Civil Procedure Code, 1908 - Section 96 - Evidence Act, Section 3 - Oral evidence in appeal. - While considering oral evidence in appeal, Court, must consider all statements made in examination in Chief, Cross-examination and re-examination. - The trial Court, while dismissing regular civil suit found that the sale deed executed in respect of suit land No. 2 was for legal necessity of joint Hindu family of plaintiffs and defendant and that it was binding on the plaintiffs. It also observed in para 23 of its judgment that "In (sic when) the alienation made by manager of the joint family is challenged by other coparcener, then in such circumstances, as per the provision of Article 268 of Hindu Law, a suit for partition and separate possession is required to be filed". It then went on to hold that since the suit was filed by the appellants/ plaintiffs only for declaration and possession, plaintiffs, "in the light of aforesaid provision of Hindu Law" ought to have filed a suit for partition and separate possession.