Abdul Wasid (dead) through LRs Hanifa Begum vs Munni Bai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(MP) 533

IN THE HIGH OF MADHYA PRADESH
Anil Sharma, J.
Abdul Wasid (dead) through LRs Hanifa Begum and others
v. Munni Bai and others
Second Appeals No.174 and 395 of 2005 (Gwalior) : against the judgment and decree of Additional District Judge, Chanchoda Camp, Guna, passed in Civil Appeal No.33-A of 2004;
Decided on 1.10.2012.

Advocates:
D.K. Agrawal for appellants;
Rajendra Sagoria for respondents.

Headnote:(1) Hindu Law -- Karta of Hindu Undivided Family -- has every right to sell the property for payment of debts -- aforesaid sale without pleading and proof of legal necessity on the part of purchaser not illegal -- suit for declaration and permanent injunction by other members of Hindu undivided family dismissed.
       Held : The plaintiffs have failed to prove that defendant No.1 has purchased undivided share of HUF property. Learned lower appellate Court has not committed any illegality in upholding the sale of disputed property without pleading and proof of legal necessity on the part of purchaser. The legal necessity has been mentioned in the sale-deed Ex.P-1 and as a Karta of the family, Permanand was having every right to sell the propertyfor payment of debts as mentioned in the sale-deed Ex.P-1 itself. (2003)10 SCC 310 and 2006(2) Vidhi Bhasvar 1 (SC) followed.
       (2) Limitation Act, 1963 -- Ss.65, 6, 7 and 8 -- Civil P.C., 1908 -- O.6 R.17 and O.6 R.2 -- decision cannot be based on grounds outside pleadings -- amendment in plaint must be for the same -- but, application of amendment not acceptable after expiry of the period of limitation. 1996(I) MPWN 101 (SC), (2009)10 SCC 84, AIR 1993 SC 957 and AIR 2009 SC 3115 followed. 1992 RN 277 and 2012(2) MPHT 317 relied on. [Para 11
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JUDGMENT

1. This judgment shall dispose of Second Appeals No.174 of 2005 and 395 of 2005 filed against the judgment and decree dated 13.12.2004 passed by learned Additional District Judge, Chanchoda Camp, Guna District Guna in Civil Appeal No.33-A of 2004 which was filed against the judgment and decree dated 21.7.1998 passed by learned First Civil Judge Class II, Guna in Civil Suit No.288-A of 1996.

2. The brief facts of the case are that Sampat Bai (plaintiff No.1), Heera Lal (plaintiff No.2), Bharon Lal (plaintiff No.3) and Gajanand (plaintiff No.4) filed a suit for declaration and permanent injunction mainly against defendant No.1 Abdul Wasid. Plaintiffs No.2, 3 and 4 were minors at the relevant time, therefore, they were represented through Smt. Sampat Bai. Originally, the suit was filed against Abdul Wasid and Permanand defendants No.1 and 2 respectively. Defendant No.1 Abdul Wasid is appellant in Second Appeal No.174 of 2005 and defendant No.2 Permanand is respondent No.1 in the said appeal. Sampat Bai has died on 18.2.1990, therefore, she was represented by her two daughters namely Munni Bai and Smt. Binna Bai. During pendency of first appeal, defendant No.2 Permanand also died, therefore, he represented by his two daughters and a son namely Pishta Bai, Sunita Bai and Kewal Chand respectively.

3. Plaintiffs filed the suit alleging that the plaintiffs and defendants are joint family members and defendant No.2 being only male member of the family, was also manager and Karta-Dharta of the family. Plaintiff No.1 Sampat Bai jointly with one Moolchand purchased total 2.944 hectares land on 29.7.1976 for consideration of Rs.35,000/- from one Ramniwas Sharma. The consideration was paid by Sampat Bai by selling her land situated at Chaudhary Mohalla, Guna and ornaments of Permanand’s wife and herself generated the income. The land was purchased in the name of Permanand, and Moolchand purchased the land in the name of his four sons namely Man Singh, Hariom, Devi Singh and Ram Babu. Sampat Bai and Moolchand were having equal share and were owner of 1.472 and 1.472 hectares of land bearing Survey No.401 and 402 which is referred as ‘disputed land’. One Shyamlal was growing vegetables on the land since 1976 for plaintiff No.1 Sampat Bai and thus, the plaintiffs are in possession of the disputed land. Due to habit of drinking of defendant No.2 Permanand, Sampat Bai was managing affairs of family and also loking after welfare of Permanand’s wife and children. On 24.12.1982, defendant No.1 Abdul Wasid came to plaintiff No.1 Sampat Bai and informed that defendant No.2 Permanand lost the land in gambling and he i.e. Abdul Wasid has purchased the land. The plaintiff came to know that Permanand sold the land to defendant No.1 Abdul Wasid on 3.11.1982 in drunken condition, when she asked Permanand, he replied that the land has not been sold but mortgaged because, he lost heavy amount in gamble. The disputed land was of the ownership of the joint family of the plaintiff No.1 and defendant No.2, therefore, the land could not be sold by Permanand alone. On 4.1.1983, Abdul Wasid snatched keys of the house and threatened to take possession from the plaintiffs, therefore, the plaintiffs filed the suit for declaration and permanent injunction.

4. Defendant No.1 Abdul Wasid in his written statement denied the allegations of the plaint and pleaded that the land in dispute was sold by defendant No.2 to defendant No.1 Abdul Wasid for consideration of Rs.20,000/- and defendant No.1 Abdul Wasid is in possession of the disputed land from the date of purchase. Permanand not only executed the registered sale-deed in the office of Registrar but he has also executed an affidavit for the mutation of the name of defendant No.1. It is further contended that the suit is barred by Benami Transaction Prohibition Act, therefore, the suit is not maintainable. The land in dispute has been mutated in the name of defendant No.1 and hence, plaintiffs are not entitled for an

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