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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
MANISH PITALE, J.
Mr. Vasantrao Gulabrao Thakre & Ors. – Appellants
Versus
Mr. Sudhakar Wamanrao Hingankar & Ors. – Respondents
Second Appeal (Sa) No. 582 of 2006
Decided On : 04-05-2018
Constitution Of India,1950 - Article 65 - Hindu Minority and Guardianship Act, 1956 - Section 8(2) - Aforesaid Act - Section 8(2) - Claim on behalf of the minor - Aforesaid suit property - Appeal now represented through his legal representatives who has challenged reversal of order of trial Court by appellate Court which has decreed suit of respondent question that arises for consideration in this appeal is whether mother of said original plaintiffs could have justifiably alienated suit property in favour appellant without seeking permission of Court as contemplated of Hindu Minority and Guardianship - It was case of said original plaintiffs that aforesaid alienation undertaken by their mother without obtaining such permission was illegal and that they were entitled to possession of suit property Survey mouza Yeoda Taluka Daryapur District Amravati- father of said original plaintiffs had died and their mother was looking after welfare of said plaintiffs- their mother sold aforesaid suit property to appellant by a registered sale-deed- In sale-deed itself details of debts were specifically enumerated and it was stated that sale was being undertaken due to necessity of satisfying such debts –Held, Court has referred to details of encumbrances and debts stated in sale-deed itself- Various amounts stated in sale-deed have been recorded but appellate Court has come to conclusion that amount of debts and amount shown as consideration did not match up and that therefore there was lack of sufficient material to show legal necessity- But a proper reading of recitals in sale-deed shows that details of debts with break up and total are mentioned in sale-deed and amount of consideration was paid by appellant in satisfaction of such debts- appellant has also mentioned about same in his oral evidence and he has also stated in respect of receipts showing return of private loans- In this situation apart from detailed recitals in sale-deed there was oral evidence also given by appellant regarding legal necessity and burden had been discharged by him- In this regard reliance placed on behalf of appellant on judgment of this Court in case through LRs and others through LRs and others (supra) is correct wherein it that recitals of sale-deed are significant when they indicate legal necessity for execution of document and sale of property- In present case sale-deed was executed and suit was filed by respondent - In such a situation burden on appellant to demonstrate legal necessity stood sufficiently satisfied by recitals in sale-deed coupled with documentary evidence in form of receipts for repayment of private loans placed on record which was corroborated by oral evidence of appellant- Therefore appellate Court had clearly erred on this aspect also Counsel for parties on aspect of limitation and applicability present case even if it was held that appellate Court was justified in holding that suit was within limitation insofar as share of plaintiff and defendant were concerned on merits it has been found above that decree granted by appellate Court was not sustainable- Hence aspect of limitation is not being considered and discussed in detail - Appeal dismissed
The original defendant No.1 is the appellant in this appeal, now represented through his legal representatives, who has challenged the reversal of order of the trial Court by the appellate Court, which has decreed the suit of respondent Nos.1 to 4 (original plaintiffs). The question that arises for consideration in this appeal is, whether the mother of the said original plaintiffs could have justifiably alienated the suit property in favour of the appellant without seeking permission of the Court as contemplated under Section 8(2) of the Hindu Minority and Guardianship Act, 1956. It was the case of the said original plaintiffs that the aforesaid alienation undertaken by their mother without obtaining such permission was illegal and that they were entitled to possession of the suit property.
2. The suit property is land admeasuring 0.96 R out of which 1.77 HR land is in Survey No.445 mouza Yeoda, Taluka Daryapur, District Amravati. The father of the said original plaintiffs had died in 1968 and their mother was looking after the welfare of the said plaintiffs. On 30.03.1974, their mother sold the aforesaid suit property to the appellant by a registered sale-deed. In the sale-deed itself, details of debts were specifically enumerated and it was stated that the sale was being undertaken due to the necessity of satisfying such debts.
3. It was the case of the said original plaintiffs that they were minors when the aforesaid sale-deed was executed in favour of the appellant and that upon attaining majority, they were entitled to challenge the same and to demonstrate that their mother could not have executed the same.
4. On this basis, on 14.07.1992, the said original plaintiffs filed Regular Civil Suit No. 55 of 1992 before the Court of Civil Judge, Senior Division, Daryapur for possession of the suit property and for enquiry into the mesne profit. The appellant was arrayed as defendant No.1; while their brother Prabhakar was defendant No.2, their mother was defendant No.3 and their sister was defendant No.4 in the aforesaid suit. On 03.12.1992, the defendant Nos.2, 3 and 4 (brother, mother and sister of the plaintiffs) filed their written statement conceding to the prayers made in suit. The appellant filed his written statement on 20.04.1993, opposing the aforesaid suit. It was stated that the sale-deed was executed by mother of the plaintiffs due to legal necessity and this was evident from the details of the debts given in the sale-deed itself, which demonstrated that the claim made by the plaintiffs was not justified.
5. On the basis of pleadings and evidence placed on record by the parties, the trial Court dismissed the suit holding that the plaintiffs had failed to show that the aforesaid sale-deed had been executed by mother (defendant No.3) without legal necessity. The trial Court placed reliance on the contents of the sale-deed itself to hold that there were encumbrances and that the sale of the land had become necessary to repay such debts and to remove the encumbrances. It was held that after the death of her husband, the mother of the plaintiffs was justified in executing the said sale-deed in order to repay the debts as she had no other source of income.
6. Aggrieved by the dismissal of the suit by the trial Court, the respondent Nos.1 to 4 filed Regular Civil Appeal No. 5 of 1994, before the Court of District Judge, Achalpur (appellate Court). By the impugned judgment and order dated 28.10.2005, the appellate Court partly allowed the appeal and decreed the suit in favour of the respondent Nos.2, 3 and 4, holding that they were entitled to recover the suit property to the extent of their respective shares from the appellant. The appellate Court held that the appellant had failed to discharge the onus of proving legal necessity in the present case and that reliance only on the contents of the sale-deed to prove the same was not justified. It was also held that it was imperative for the mother of the plaintiffs to h
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