1982 Supreme(MP) 61

R. C. Shrivastava, J.
Gullu v. Bhagchand
S. A. No. 215 of 1972 (G); Decided on 22-1-1982.

Headnote:(1) Civil P. C., 1908 -- S. 100 -- finding as to legal necessity decided on appreciation of evidence -- no interference in second appeal called for.

        (2) Hindu Law -- regal necessity -- proof of -- fact of indebtedness admitted by plaintiffs own witness -- seller who is father of plaintiff, Li"Ving jointly, not examined -- legal necessity proved as the debt may be inferred to be family debt.

        (3) Evidence Act, 1872 -- S. 114 -- adverse inference -- when may be drawn -- seller not examined to rebut legal necessity duly established by purchaser adverse inference should be drawn.

        (4) Evidence Act, 1872-- S. 114 -- adverse inference -- when may not be drawn-- non-examination of witness closely related to the opponent -- adverse inference cannot be drawn.

        (5) Hindu Minority and Guardianship Act, 19S6 -- S. 8 (2) -- previous permission of Court -- when necessary -- provision not applicable to the joint interest of minor in family property.

        The learned counsel for the appellants has raised only two contentions before me. Firstly, according to him, the alleged legal necessity is not proved and, secondly, the appellants 2, 3 and 4 being minors, the sale could not validly be affected without the permission contemplated by section 8 (2) of the Hindu Minority and Guardinship Act.

        Held: As regards the first contention, it has been concurrently held by both the lower Courts that the sale-deed was executed for the legal necessity of repayment of a debt owed to the Cooperative Bank. That finding is based on appreciation of the evidence on record. It is significant that evidence was adduced on behalf on the respondent No.2 to prove the existence of that legal necessity but the appellants bad no courage to bring the respondent No. 1 (father of the appellants 1 to 4 and husband of the appellant No.5) in the witness-box to rebut that evidence. The learned counsel for the appellants has urgent that accounts of the Bank should have been produced to prove the existence of the alleged loan and, as that was not done, it should not be held to have been established. This contention loses significance in view of the fact that despite there being evidence on record to prove the existence of the loan and despite want to knowledge thereof on the part of the appellant No.5 (PW 1) and despite the appellants own witness Ganpat (PW 3) having stated that the respondent No. 1 was indebted to the bank, the plaintiffs did not examine the respondent No.1, who, according to the evidence on record, has been Li"Ving jointly with them, in order to rebut the evidence. The evidence adduced on behalf of the appellants did not at all go to rebut the evidence as to existence of the loan. To the circumstance, adverse inference should be drawn that the testimony of the respondent No. 1, if examined by the plaintiffs, would have been highly detrimental to them. He could, of course, not be examined by the respondent No.2 due to apprehension that, being so closely related to the appellants, he might depose in their favour. In the circumstances, it would not be proper to draw adverse inference for non-production of the accounts of the bank in order to prove the existence of the debt. The existence of the debt is amply proved by the other evidence on record and, in the circumstances of the case, it is quite reasonable to infer that it was a family debt. The concurrent finding that the sale was effected for the legal necessity of repayment of that debt does clot call for any interference in second appeal.

        As regards the other contention of the learned counsel for the appellants, under section 8 (2) of the Hindu Minority and Guardianship Act, previous sanction of the Court is necessary then the immovable property belongs exclusively to the minor. It does not apply to the joint interest of the minor in family property. This Courts decision in Sugga Bai and others versus Smt. Hiralal and others, 1969 JLJ 227, may be referred to in that connection. Thus, the second contention of the learned counsel for the appellants also fails. 1969 JLJ 221 relied on. Appeal dismissed.