The sale deed executed without legal necessity and consideration does not bind the joint family properties, affirming the plaintiffs' entitlement to a share.

JUDGMENT :

GAURI GODSE, J.

1. This Second Appeal is preferred by the original plaintiffs to challenge the judgment and decree passed by the First Appellate Court. The trial court had decreed the suit granting one-fourth share jointly to the plaintiffs by declaring that the sale deed in favour of defendant no. 2 was not binding on the plaintiffs’ share. Defendants nos. 1, 2 and 3 were declared to have one-fourth share each in the suit property. The First Appellate Court partly allowed the first appeal preferred by defendant no. 2 and modified the trial court’s decree to the extent of the suit properties, which were the subject matter of the sale deed executed in favour of defendant no. 2.

2. Plaintiff no. 1 is defendant no. 1’s daughter-in-law, i.e. wife of defendant no. 1’s predeceased son (“Ramchandra”). Defendant nos. 2 and 3 are the other two sons of defendant no. 1. Plaintiff nos. 2 to 4 are children of plaintiff no. 1 and Ramchandra. The suit for partition and separate possession was filed with respect to Gat Nos. 304, 466, 313, 310, 302 and 467. Defendant no. 2 claims to have purchased four Gat numbers out of the suit properties, i.e. Gat No. 302, 304, 466 and 467. The suit was filed for a declaration that plaintiffs had one-fourth share in the suit properties and for a further declaration that the sale deed in favour of defendant no. 2 was not binding upon plaintiffs’ share.

3. The Second Appeal was admitted on the following substantial questions of law vide order dated 17th January 2019:

(i) In the absence of any evidence whether the Appellate Court was justified in excluding the suit properties Gat Nos. 304, 466, 313, 310, 302 and 467 from the partition by holding those were self acquired properties of Defendant No. 2?

(ii) Whether the Appellate Court was justified in holding that the sale-deed dated 24th February 1982 executed by the defendant no. 1 in favour of defendant no. 2 was valid without recording that finding that the said alienation was for the legal necessity?

4. Learned counsel for the appellants submitted that except for defendants nos. 2 and 5, the rest of the defendants admitted the suit claim. He further submitted that defendant no. 2 failed to prove that he purchased the suit properties from his own independent income and that they were his self-acquired properties.

5. Learned counsel for the appellants further submitted that defendant no. 1 filed his written statement and contended that the sale deed in favour of defendant no. 2 was a hollow sale deed without any consideration and that it was executed only for the purpose of payment of tax. He submitted that defendant no. 1’s pleadings were supported by his oral evidence. Learned counsel for the appellants further submitted that, admittedly, the suit properties were joint family properties of defendant no. 1 and his sons. He further submitted that once the joint family of defendant no. 1 and his sons was not in dispute, the suit properties could not have been accepted as independent properties of defendant no. 2 only based on the sale deed and in the absence of supporting evidence that the sale deed was executed for legal necessity and that it was executed on payment of consideration from the independent income of defendant no. 2. Learned counsel for the appellants relied upon the findings recorded by the trial court.

6. Learned counsel for the appellants submitted that admittedly, out of the suit properties, only Gat Nos. 302, 304, 466 and a certain portion of Gat No. 467 was purchased by defendant no. 1. However, he failed to produce any evidence to support his claim of having an independent source of income. He further submitted that defendant no. 1 contended that he had never received any consideration as stated in the sale deed. Thus, in the absence of any proof of payment of consideration amount, defendant no. 2 was not entitled to claim any exclusive right in the suit properties, which were the subject matter of the sale deed executed in favour of def