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1981 Supreme(Ori) 154
Orissa High Court
B. N. MISRA, J.
Kangalu Padhan - Appellant
Versus
Dhaneswar Mishra - Respondents
Second Appeal No.84 of 1977
Decided On : 24 December 1981
S. Mohanti and A.S. Naidu, for Appellants; P.K. Misra, for Respondents.
A plea of absence of legal necessity for an alienation by a manager of a joint family cannot be raised for the first time in appeal if it was not pleaded in the written statement and no issue was framed on it by the trial court.
Headnote:
HINDU LAW - JOINT FAMILY - ALIENATION BY MANAGER - LEGAL NECESSITY - BURDEN OF PROOF - SALE DEED - RECITALS - ADMISSIBILITY - EVIDENCE ACT, 1872, SECTIONS 13 AND 32.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and perpetual injunction over suit lands, claiming that they had purchased the lands from Bipin, the Karta of a joint family, and that the sale was valid and binding. The defendants, Bipin's family members, contested the sale, alleging that it was fraudulent, benami, and without consideration, and that Bipin lacked the legal necessity to sell the lands.
Finding of the Court:
The trial court found that the sale deed was not fraudulent or benami, that full consideration was paid, and that the plaintiffs were bona fide purchasers for value. The lower appellate court, however, held that the sale deed was invalid and not binding on the defendants as the plaintiffs had failed to prove the legal necessity for the sale.
Issues: 1. Whether the sale deed executed by Bipin in favor of the plaintiffs was fraudulent or benami and without consideration? 2. Whether the plaintiffs had the burden of proving the legal necessity for the sale? 3. Whether the recitals in the sale deed regarding antecedent debts were admissible as evidence of legal necessity?
Ratio Decidendi: 1. The court held that the defendants could not raise the plea of absence of legal necessity for the first time in appeal, as it was not pleaded in their written statement and no issue was framed on it by the trial court. 2. The court held that the onus of proving the absence of legal necessity was on the defendants, as the sale deed recited the existence of antecedent debts, which were admissible as evidence under Section 13 of the Evidence Act. 3. The court held that the lower appellate court erred in rejecting the evidence of the plaintiffs' witnesses regarding the legal necessity for the sale without discussing it.
Final Decision: The appeal was allowed, the judgment and decree of the lower appellate court were set aside, and those of the trial court were confirmed.
Judgement
JUDGEMENT :- The plaintiffs are the appellants. They filed Title Suit No.13 of 1969 in the Court of the Munsif, Sonepur for declaration of their title over the suit lands and for perpetual injunction against the defendants. The following genealogy described in the plaint shows the relationship of the defendants. According to the plaintiffs, since a long time there was partition between the late Bipin (husband of defendant No.3) and Kunja (defendant No.2), the two sons of Dhaneswar (defendant No.1). Since then they have been separate in mess and property. The suit lands had fallen to the share of Bipin at the partition and he was possessing the same as his separate property in his own right, title and interest. Bipin was the Karta of the joint family consisting of himself and defendants 3, 4 and 5. They were governed by Hindu Mitakshara Law. On 11-9-1962 the said Bipin as manager of the family sold the suit lands in favour of the plaintiffs for a consideration of Rs. 800 and executed a registered deed of sale and delivered possession of the suit lands to the plaintiffs. Since then the plaintiffs have been in possession of the suit lands. The defendants have no manner of right, title and interest in the said lands. On 6-12-1968 the defendants unlawfully removed paddy crops from the suit lands on account of which the plaintiffs went to the police for help. However as the police did not help the plaintiffs they came to the Court and prayed for declaration of title and perpetual injunction.
2. Defendants 1 to 4 and 6 filed a joint written statement. According to the defendants, the suit lands belong to the late Madanmohan Chaini who died in the year 1957. Thereafter the suit lands devolved upon Sribatsa Misra and defendant No.6, the two sons of Madanmohan. The plaint genealogy is admitted. It is denied that the suit lands had fallen to the share of Bipin and were his separate property. The suit lands are claimed to be the joint property of Sribatsa and defendant No.6. It is denied that Bipin was acting as manager of the family. It is stated that the sale was a benami transaction, no consideration had passed under the sale deed and the suit lands had not been delivered to the plaintiffs. At the instance of the ex-Sarpanch Bipin was influenced to execute a fictitious sale deed in favour of the plaintiffs. It is denied that the plaintiffs are the owners in possession of the suit lands. It is again stated that defendant No.6 and Sribatsa are the owners in possession of the suit lands. The Guardian ad litem appointed by the Court on behalf of minor defendant No.5 separately filed a written statement adopting the written statement filed by the other defendants.
3. The main findings of the learned Munsif are :-
(1) that the suit lands had not fallen to the share of Madan Chaini but to the share of Dhaneswar (defendant No.1), that in the partition between defendant No.1 and his two sons, the late Bipin and defendant No.2, the suit lands had fallen exclusively to the share of the late Bipin and that defendant No.6 and his brother Sribatsa never succeeded to the suit lands on the death of their father.
(2) that the sale deed Ext.1 executed by the late Bipin in favour of the plaintiffs is not fraudulent or benami, that the consideration amount was fully paid by the plaintiffs to the vendor and that the plaintiffs are bona fide purchasers for value; and
(3) that the plaintiffs are in possession of the suit lands and they have acquired right, title and interest over the same.
The plaintiffs" suit was accordingly decreed on contest against the defendants with costs.
4. The defendants filed Title Appeal No.1/8 of 1973/74 in the Court of the Subordinate Judge, Sonepur. In his judgement the learned lower appellate Court agreed with the trial Court that there was partition amongst Madan Chaini and his brothers since a long time, that the suit lands had fallen to the share of Dhaneswar (defendant No.1) and that in the partition between defen
