1. Second appeal by defendant No.4 against concurrent decree declaring plaintiff's 1/4th share and cancelling sale deed to that extent. (Para 1 )
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HIGH COURT OF BOMBAY
Vibha Kankanwadi, J
Vikrant Patil – Appellant
Versus
Uttam Langade – Respondent
SECOND APPEAL NO.248 OF 1993|CIVIL APPLICATION NO.2312 OF 1993
Advocates:
For the Appellants/Petitioners: V. D. Salunke, R. A. Deshmukh
For the Respondents: S. S. Choudhary, P. D. Suryawanshi
For the Appellants/Petitioners: V. D. Salunke, R. A. Deshmukh
For the Respondents: S. S. Choudhary, P. D. Suryawanshi
The burden of proof to establish legal necessity for the alienation of joint family property by a Karta lies with the purchaser; a mere recital in the sale deed is insufficient without corroborating documentary evidence.
Headnote:(A) Hindu Law - Alienation of Joint Family Property - Legal Necessity - Sale of joint family land by Karta - Burden of proof - The alienee/purchaser is required to establish the existence of legal necessity for the transaction; a mere recital in the sale deed regarding domestic expenses or repayment of loans is insufficient without supporting documentary evidence. (Paras 6, 7)
(B) Evidence - Preponderance of probabilities - While evidence is considered on the preponderance of probabilities, the purchaser of joint family property must ensure the necessity stated by the vendor is existing and legal. (Para 7)
Facts of the case:
The original defendant No. 4 purchased two suit lands from defendant No. 1, who acted as the Karta of a joint Hindu family. The plaintiff, being the son of the Karta, challenged the sale on the grounds that there was no legal necessity for the alienation and that the consideration was inadequate. The Trial Court and the First Appellate Court both ruled in favor of the plaintiff, cancelling the sale deed to the extent of the plaintiff's share.
Findings of Court:
The court found that the purchaser failed to produce any documentary evidence, such as bank records or loan documents, to prove that the Karta was indeed indebted to the government or private persons. Oral testimony without supporting documentation was deemed insufficient to establish legal necessity.
Issues: Whether the purchaser proved that the joint family property was sold to him for legal necessity.
Ratio Decidendi: The court held that the burden of proving legal necessity lies on the purchaser. Mere statements in the sale deed are not enough; the purchaser must provide evidence that the necessity existed. The principle that the alienee need not show how every bit of consideration was used applies only after the legal necessity itself has been established.
Result: Appeal dismissed.
Legal Category Hierarchy
- property law
- practice and procedure
Table of Contents
2. Appellant: sale for legal necessity proved. Respondent: courts correctly held inadequate proof of legal necessity. (Para 4 , 5 )
3. Purchaser failed to prove legal necessity; oral evidence insufficient without documentary proof of loans. Consideration inadequacy not decisive. (Para 6 , 7 , 8 , 9 , 10 )
4. Alienee must prove legal necessity for Karta's alienation; need not show precise application of consideration. (Para 4 , 7 , 10 )
5. Second appeal dismissed with costs; concurrent judgment and decree upheld. Interim relief extended for six weeks. (Para 11 )
6. Who bears the burden of proving legal necessity when property is alienated by the Karta of a Hindu joint family?
The alienee (purchaser) bears the burden to prove that the alienation was for legal necessity. (Para 4 , 6 )
7. Is an alienee required to prove the actual application of consideration for legal necessity?
No, it is sufficient for the alienee to establish legal necessity; precise application of consideration need not be shown. (Para 4 , 10 )
8. Can inadequacy of consideration alone determine absence of legal necessity?
No, inadequacy of consideration is not the point to assess legal necessity; dire need may justify accepting less than market price. (Para 8 )
9. Is oral evidence sufficient to prove a bank loan without producing documentary evidence?
No, when documentary evidence is available, oral evidence cannot be considered; reasons for non-production must be given. (Para 6 )
JUDGMENT :
1. Present appeal has been filed by the original defendant No.4 challenging the concurrent Judgment and decree. Present respondent No.1 is the original plaintiff who had filed Regular Civil Suit No.106 of 1077 before Civil Judge, Junior Division, Kallam District Osmanabad, for declaration, partition and possession. The said suit came to be decreed on 31-01-1983. It was declared that the plaintiff has 1/4th share in the suit lands and the mango trees. It was further decree that the sale deed effected by defendant No.1 on 11-05-1976 in favour of defendant No.4 stood cancelled to the extent of 1/4th share of the plaintiff. The separation of the share was directed to be effected through Collector. The said Judgment and decree passed by the Trial Court was challenged by defendant No.4/present appellant by filing Regular Civil Appeal No.105 of 1983 and the said appeal came to be dismissed on 28-04-1993 by learned Additional District Judge, Osmanabad. Hence, this second appeal.
2. This Court admitted the second appeal on 11-09-2006 by framing following substantial question of law :-
“Whether the present appellant has proved that the property was sold to him for legal necessity.”
3. Heard learned Advocate Mr. V. D. Salunke instructed by Mr. R. A. Deshmukh for appellants, learned Advocate Mr. S. S. Choudhary for respondent No.1 and learned Advocate Mr. P. D. Suryawanshi for respondent No.4.
4. It has been vehemently submitted on behalf of the appellants that both the Courts below have not appreciated the evidence property and failed to consider the contents of the documents which itself indicate the legal necessity. It is not in dispute that defendant No.1 who is the father of plaintiff executed sale deed on 11-05-1976 in respect of land Gut Nos.714 and 719 in favour of defendant No.4. Though there are other two suit lands, but we are not concerned with the same as defendant No.4/present appellant was concerned only with the above said two lands which were sold to him. As per the plaintiff, defendant No.1 was addicted to vices and he had unauthorizedly and illegally sold above said two suit lands without any legal necessity to defendant No.4 and, therefore, the said sale deed is not binding on him. It was stated that the family neither was indebted to anybody nor loan was raised requiring any amount for mitigating the said loan. It was also pleaded that the actual value of the suit lands are more than it has been shown in the sale deed, but the plaintiff had not adduced any proper evidence to show that what was the real value of the suit land. Some statement made by the witnesses that irrigated land in their village would fetch a certain amount, will not amount to evidence in respect of inadequacy of consideration. In fact, the suit was filed in collusion between the plaintiff and defendants No.1 to 3 to give a go bye to rights derived by defendant No.4. This can be seen from the fact that intentionally defendants No.1 to 3 remained absent and the suit proceeded ex-parte against them. This shows that they had the collusive interest with plaintiff as against defendant No.4. When it was contended by the plaintiff that the suit lands were not sold to defendant No.4 for real necessity; defendant No.4 has led evidence to support the contention that there was in fact legal necessity. Payment of consideration has not been challenged by the father defendant No.1. Plaintiff cannot say that father has not received consideration because at this stage he is the rival to his father. Even the sale deeds have not been challenged on the ground of fraud etc. by the executant i.e. the father defendant No.1. Defendant No.4 examined two more witnesses out of which one was the attesting witness and another is the person who had given hand loan to defendant No.1. Both of them have supported the story put forward by defendant No.4. Further, in his cross-examination, plaintiff himself and plaintiff’s witnesses have admitted that a certain amount of
