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PUNJAB & HARYANA HIGH COURT
M.R.Sharma, J.
Jawala Singh
Versus
Lachhman Das
Second Appeal No. 1356 of 1969,
Decided On : OCTOBER 1, 1973
HINDU LAW - COPARCENARY PROPERTY - ALIENATION BY FATHER - NECESSITY - BURDEN OF PROOF - SALE BY FATHER FOR NECESSITY - VALIDITY - SALE BY FATHER WITHOUT NECESSITY - VALIDITY AGAINST FATHER'S SHARE ONLY.
Fact of the Case:
Udey Chand, the father of Lachhman Das, made four sales of coparcenary property. Lachhman Das challenged these sales on the ground that they were not for valid necessity and were not binding on him. The lower appellate court held that the first sale, for Rs. 1,500/-, was for necessity, but that the second sale, for Rs. 16,000/-, was not. The court also upheld the third and fourth sales, for Rs. 3,000/- and Rs. 500/-, respectively, as being for valid necessity.
Finding of the Court:
The High Court held that the first sale was for necessity, as the alienees had placed on record evidence of a Taccavi loan advanced to Udey Chand by the Revenue Department, which he had repaid shortly after the sale. The court also held that the second sale was not for necessity, as the alienees had not led any cogent evidence to show that they had made bona fide enquiries or that actual necessity existed. However, the court held that the sale was binding against Udey Chand's share of the property, as a Hindu father has greater powers of alienation of the joint family property for valid necessity than a brother.
Issues: 1. Whether the first sale was for necessity. 2. Whether the second sale was for necessity. 3. Whether the second sale was binding against Udey Chand's share of the property.
Ratio Decidendi: 1. The burden of proving legal necessity for an alienation of coparcenary property lies on the alienee. However, the alienee may discharge this burden by proof of actual necessity or by proof that he made proper bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to its existence. 2. A Hindu father has greater powers of alienation of the joint family property for valid necessity than a brother. 3. A sale by a Hindu father of coparcenary property without necessity is not binding on the other coparceners, but it may be binding against the father's share of the property.
Final Decision: The High Court allowed the appeal in part. It upheld the lower appellate court's decision that the first sale was for necessity and that the third and fourth sales were for valid necessity. However, it modified the lower appellate court's decision that the second sale was not binding on Lachhman Das, and held that the sale was binding against Udey Chand's share of the property.
, J.
1. This judgment will dispose of R. S. As. Nos. 1356 and 1520 of 1969.
2. Udey Chand had made the following four sales:-
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1. On 24-9-1956 for Rs.1,500/- in respect of land measuring 13 Kanals 1 Marla in favour of Jawala Singh Ajmer Singh and Jagrup Singh, defendants Nos. 2 to 4.
2. On 16-2-1958 for Rs.3,000/- in respect of and measuring 60 Kanals 5 Marlas in favour of Gopal Singh defendant No.5.Vide sale-deed Exhibit D-3.
3. On 6-2-1962 for Rs.500/- in respect of land measuring 10 Kanals 6 Marlas in favour of Manohar Lal defendant No.6 vide sale-deed Exhibit D-2.
4. On 10-7-1967 for Rs.16,000/- in respect of 32 Kanals in favour of Jawala Singh Ajmer Singh and Jagrup Singh defendants Nos.2 to 4 vide sale-deed Exhibit D-8.
These sales were challenged by Lachhman Das respondent who was the son of Udey chand on the ground that the property sold formed part of the property belonging to the Hindu coparcenary and the sale being for no valid necessity was not binding on Lachhman Das, who was entitled to receive possession of this property.
3. Regarding sale of land measuring 13 Kanals 1 Marla made on September 24, 1956, in favour of Jawala Singh, Ajmer Singh and Jagrup Singh, the learned Lower Appellate Court has held that though the land belonged to the Hindu coparcenery, yet the alienees had failed to prove necessity for this sale. In the sale deed Exhibit D-6, it was recited that the vendor needed this money for purchasing some other land. The learned Lower Appellate Court observed that the vendees failed to make an enquiry whether the statement made by the vendor was bona fide or not. It also observed that if Udey Chand wanted to sell land belonging to the corparcenary, it was incumbent upon him to get the consent of Lachhman Das, A Hindu father acting as the Karta of the family does not have to seek the consent of his sons for making alienations of joint property for necessary purposes. Again, it is not necessary for the alienee to conclusively establish that the necessity recited in the sale-deed was established. In Smt. Rani V/s. Smt. Santa Bala Debnath, AIR 1971 SC 1028, it was held that the onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to its existence. The recital made in the deed was merely a representation and if the same does not turn out to be true it would be proper for the Courts to draw an inference that the alienee did not make any proper enquiry about the existence of the necessity but this does not mean that he cannot adduce other evidence of necessity. In the instant case, the alienees placed on record a copy of the ledger account (Exhibit D. 9) of loans advanced by the Revenue Department to the land-owners, which shows that Udey Chand had been advanced Taccavi loan of Rs.2000/- which he paid back on October 14,1956 i.e. about 20 days after making the sale in dispute. In this view of the matter, it cannot be said that there was no necessity for this sale. The learned counsel for Lachhman Dass respondent has relied upon Ram Parkash V/s. Radhe Shyam, AIR 1963 Punj 338,in which it has been held that necessity for the alienation itself should be shown by the alienee. There is no quarrel with this proposition but once an alienee places on record evidence from which an inference of legal necessity can be raised then the burden shifts on those who challenge the alienation to show that in fact there was no necessity for the sale. The peculiar facts of this case are that Lachhman Das did not produce Udey Chand, his own father, as his witness. Consequently, an inference can be drawn against him that if Udey Chand had been cited as a witness he would have deposed about the existence of legal necessity. I therefore, hold that the sale dated September 24,1956, for a sum of Rs.1,500/- in favour of Jawala Singh, Ajmer S
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