Tuesday, 28 August 2018

Whether karta of family can sell ancestral property without consent of other coparceners?

In our considered opinion, a case of legal necessity for
sale of ancestral property by the Karta (Pritam Singh) was,
therefore, made out on facts. In other words, the defendants
were able to discharge the burden that lay on them to prove
the existence of legal necessity for sale of suit land to
defendant Nos. 2 and 3. The defendants thus satisfied the
test laid down in Hindu law as explained by Mulla in Article
254 (2) read with Article 241 (a) and (g) quoted above.
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28) Once the factum of existence of legal necessity stood
proved, then, in our view, no coparcener
(son) has a right
to challenge the sale made by the Karta of his family. The
plaintiff being a son was one of the cocoparceners
along with
his fatherPritam
Singh. He had no right to challenge such
sale in the light of findings of legal necessity being recorded
against him. It was more so when the plaintiff failed to prove
by any evidence that there was no legal necessity for sale of
the suit land or that the evidence adduced by the defendants
to prove the factum of existence of legal necessity was either
insufficient or irrelevant or no evidence at all.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3264 OF 2011

Kehar Singh (D) Thr. L.Rs Vs Nachittar Kaur & Ors.

Dated: August 20, 2018
Abhay Manohar Sapre, J.
1) This appeal is filed by the legal representatives of the
original plaintiff against the final judgment and order dated
20.04.2006 passed by the High Court of Punjab & Haryana at
Chandigarh in R.S.A. No. 1734 of 1968 whereby the High
Court allowed the appeal filed by the respondents(defendants)
and dismissed the suit filed by the original plaintiff.
2) In order to appreciate the factual and legal controversy
involved in the appeal, it is necessary to state the facts in
detail infra.
1
3) The appellants are the legal representatives of the
original plaintiff whereas the respondents are the legal
representatives of the original defendants, who were brought
on record during the pendency of this litigation consequent
upon the death of both plaintiff and the defendants.
4) The dispute in this appeal is between the son, father and
the purchasers of the suit land from father. It relates to a
land measuring around 164 Kanals 1 Marla entered in
rectangle No.46 Killa Nos. 8/1, 19/2, 21/2, 22/2, 23, 24 and
rectangle No.52, Killa Nos. 1/2, 2, 3, 4, 5, 6, 7, 8, 12/1, 13,
14, 15, 16, 17, 18, 23, 24, 25 entered in Khata No.6/9
Jamabandi 195758
at present entered in Khata No.2/2
Jamabandi 196263
situated in Village Bhamian Kalan,
Tehsil Ludhiana (hereinafter referred to as "suit land" ).
5) One Pritam Singh(defendant No.1) was the owner of the
suit land. He sold the suit land on 25.04.1960 by registered
sale deed to Tara Singh(defendant No.2) and Ajit
Singh(defendant No.3) for Rs.19,500/.
Both vendees
namely, Tara Singh and Ajit Singh were placed in possession
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of the suit land.
6) On 27.11.1964, Kehar Singh s/o Pritam Singh filed a
civil suit (Case No. 429/325 of 1964) against Tara Singh and
Ajit Singh in the Court of SubJudge
2nd class, Ludhiana.
7) The suit was founded inter alia on the allegations that
the suit land was and continues to be an ancestral property
of the family of which the plaintiff is one of its members along
with his fatherPritam
Singh, that the plaintiff's family is
governed by the custom, which applies to sale of family
property inter se family members, that the plaintiff has a
share in the suit land along with his fatherPritam
Singh as
one of the coparceners, that Pritam Singh had no right to sell
the suit land without obtaining the plaintiff's consent, which
he never gave to his father for sale of the suit land, that there
was no legal necessity of the family which could permit
Pritam Singh to sell the suit land to defendant Nos. 2 and 3,
that the suit land and the rights of the parties to the suit are
governed by the provisions of the Punjab Custom (Power to
Contest) Act, 1920 (hereinafter referred to as “the Act” ).
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8) The plaintiff prayed for a relief of declaration on the
aforementioned allegations that first, the sale made by his
fatherPritam
Singh in favour of Tara Singh and Ajit Singh
vide sale deed dated 25.04.1960 in relation to the suit land
be declared as not binding on the plaintiff; Second, the sale
in question is void and does not convey any right, title and
interest in favour of defendant Nos. 2 and 3.
9) The defendants contested the suit. According to them,
the suit land was not ancestral one; that the parties were not
governed by any custom; that the sale deed in question was
executed for consideration and for legal necessity of the
family; that the sale was made for discharge of family debts
and for improving the farming; that the defendant Nos.2 & 3
are the bona fide purchasers of the suit land for
consideration.
10) The Trial Court framed issues. Parties adduced their
evidence. By Judgment/decree dated 17.12.1966, the Trial
Court decreed the plaintiff’s suit. It was held that the suit
land was an ancestral property and there was no legal
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necessity to sell the suit land.
11) Defendant Nos.2 & 3 felt aggrieved and filed first appeal
(C.A. No.31 of 1967) before the first Appellate Court. By
judgment/decree dated 11.06.1968, the first Appellate Court
partly allowed the defendants’ appeal and modified the
judgment/decree of the Trial Court.
12) It was held by the first Appellate Court that the suit land
was an ancestral property of the family; that the parties to the
suit are governed by the custom; that defendant Nos.2 & 3
were able to prove legal necessity for the family partially to
the extent of Rs.7399/;
and lastly, the reversioners of
Pritam Singh would, therefore, be entitled to get possession of
the suit land after the demise of Pritam Singh on payment of
Rs.7399/and
the sale in question would not be binding on
their reversionary interests.
13) Defendant Nos. 2 and 3 (purchasers of the suit land) felt
aggrieved and filed second appeal before the High Court.
During the pendency of second appeal, the Punjab Custom
(Power to Contest) Amendment Act, 1973 came into force
5
w.e.f. 23.01.1973.
14) The High Court, by order dated 22.04.1974, allowed the
second appeal and dismissed the suit in view of the law laid
down by the High Court of Punjab & Haryana in the case of
Charan Singh vs. Gehl Singh, 1974 PLR 125 wherein it was
held that the Amendment Act of 1973 was retrospective in
nature and, therefore, in the light of the amendment, the
plaintiff had no right to challenge the alienation made by his
father under the custom prevailing at the relevant time.
15) The plaintiff felt aggrieved and filed appeal in this Court.
This Court disposed of the said appeal along with other
appeals involving the similar point (See Darshan Singh vs.
Ram Pal Singh & Anr., AIR 1991 SC 1654). It was held by
this Court that the Amendment of 1973 made in the Act is
retrospective in nature and that the law laid down by the
High Court of Punjab & Haryana in the case of Charan Singh
(supra) is correct and does not need any reconsideration. It
was also held that since the High Court while deciding the
second appeal did not examine the question involved in the
6
appeal in the context of principles of Hindu Law, the matter
has to be remanded to the High Court for deciding the second
appeal afresh in the light of the principles of Hindu law. This
is how the matter was remanded to the High Court for
deciding the second appeal afresh.
16) On remand, the High Court asked the parties as to
whether they want to lead any additional evidence to enable
the High Court to decide the appeal, as directed by this
Court. The parties stated that they do not want to lead any
additional evidence and the High Court could decide the
appeal on the basis of evidence already adduced.
17) By impugned order, the High Court allowed the appeal
filed by the defendants and dismissed the suit. It was held
that the suit land was an ancestral property of the family;
that Pritam Singh being a Karta had a right to sell the suit
land; that there did exist a legal necessity of the family for
which the suit land was required to be sold by Karta; that
there were two debts (Taccavi loan and one private loan) on
the family and secondly the family had an agriculture land
7
which needed improvement; that with a view to discharge the
loan liability and to undertake the improvement on the land,
the KartaPritam
Singh sold the suit land for valuable
consideration; that these facts were duly mentioned in the
sale deed in question; that the sale was, therefore, bona fide,
legal and made for valuable consideration. It is, therefore,
binding on the plaintiff.
18) The plaintiff felt aggrieved and filed the present appeal
by way of special leave in this Court.
19) Heard learned counsel for the parties.
20) The main question, which now survives for consideration
in this appeal, is whether the High Court was justified in
holding that the sale made by defendant No.1Pritam
Singh in
favour of defendant Nos. 2 and 3 was for legal necessity and,
if so, whether it was legal and valid sale.
21) So far as the nature and character of the suit land is
concerned, it was held to be ancestral land and since no
challenge was made to this finding, it is not necessary to
examine this question in this appeal.
8
22) Mulla in his classic work "Hindu Law" while dealing
with the right of a father to alienate any ancestral property
said in Article 254, which reads as under:
“Article 254
254. Alienation by father – A Hindu father as such has
special powers of alienating coparcenary property,
which no other coparcener has. In the exercise of
these powers he may:
(1) make a gift of ancestral movable property to the
extent mentioned in Article 223, and even of
ancestral immovable property to the extent
mentioned in Article 224;
(2) sell or mortgage ancestral property, whether
movable or immovable, including the interest of
his sons, grandsons and greatgrandsons
therein,
for the payment of his own debt, provided the
debt was an antecedent debt, and was not
incurred for immoral or illegal purposes(Article
294).”
23) What is legal necessity was also succinctly said by Mulla
in Article 241, which reads as under:
“Article 241
241. What is legal necessityThe
following have been
held to be family necessities within the meaning of
Article 240:
(a) payment of government revenue and of debts
which are payable out of the family property;
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(b) Maintenance of coparceners and of the members
of their families;
(c) Marriage expenses of male coparceners, and of the
daughters of coparceners;
(d) Performance of the necessary funeral or family
ceremonies;
(e) Costs of necessary litigation in recovering or
preserving the estate;
(f) Costs of defending the head of the joint family or
any other member against a serious criminal
charge;
(g) Payment of debts incurred for family business or
other necessary purpose. In the case of a manager
other than a father, it is not enough to show
merely that the debt is a preexisting
debt;
The above are not the only indices for concluding
as to whether the alienation was indeed for legal
necessity, nor can the enumeration of criterion for
establishing legal necessity be copious or even
predictable. It must therefore depend on the facts of
each case. When, therefore, property is sold in order
to fulfil tax obligations incurred by a family business,
such alienation can be classified as constituting legal
necessity.”
(see Hindu Law by Mulla “22nd Edition”)
24) The High Court, after taking note of the aforementioned
legal principles of Hindu law, dealt with this question on facts
in para 12, which reads as under:
“12. In the light of the aforesaid legal position, now it
10
has to be examined as to whether the defendants have
discharged their onus to prove the existence of the legal
necessity at the time of the impugned sale deed.
Defendant Tara Singh, while appearing as DW 13 has
stated that amount of Rs.5,500/was
paid by him as
earnest money, Rs.500/was
spent for payment of
Taccavi loan and registration of sale deed and Rs.934/was
paid to the vendor, about 34
days prior to the
registration of the sale deed, for payment of Taccavi
loan an amount of Rs.12,566/was
paid at the time of
registration of the sale deed. DW 1 Shri Gopal, who was
an Assistant in the DC office, Ludhiana has stated that
Pritam Singh vendor was granted loan of Rs.3,000/in
the year 1995 and he did not pay a penny from the said
loan till 20.11.1964. DW 2 Ram Dass, a tubewell
mechanic has proved that Pritam Singh had spent
Rs.4,000/for
installing a tubewell in the year 1963.
DW 9 Sat Pal, Additional Wasil Baqa Nawis, Ludhiana
has proved that the vendor Pritam Singh had taken
various loans from the department for purchase of seeds
bag. Rs.500/for
repair of house and Rs.2,500/for
purchasing pumping set. This witness further stated
that Pritam Singh had purchased a Rehri for Rs.1,025/from
him in the year 1961. DW 11 Dalip Singh has
proved that Pritam Singh had borrowed a sum of
Rs.3,000/from
him in the year 1959 by executing a
pronote. This witness has also stated that Pritam Singh
had performed marriage of his 5 children.”
25) In our considered opinion, the approach, reasoning and
the conclusion arrived at by the High Court on the question of
legal necessity as to whether it existed in this case while
selling the suit land by Pritam Singh or not does not call for
any interference as the same was rightly dealt with by the
11
High Court while appreciating the evidence on record.
26) It has come in evidence that firstly, the family owed two
debts and secondly, the family also needed money to make
improvement in agriculture land belonging to the family.
Pritam Singh, being a Karta of the family, had every right to
sell the suit land belonging to family to discharge the debt
liability and spend some money to make improvement in
agriculture land for the maintenance of his family. These facts
were also mentioned in the sale deed.
27) In our considered opinion, a case of legal necessity for
sale of ancestral property by the Karta (Pritam Singh) was,
therefore, made out on facts. In other words, the defendants
were able to discharge the burden that lay on them to prove
the existence of legal necessity for sale of suit land to
defendant Nos. 2 and 3. The defendants thus satisfied the
test laid down in Hindu law as explained by Mulla in Article
254 (2) read with Article 241 (a) and (g) quoted above.
12
28) Once the factum of existence of legal necessity stood
proved, then, in our view, no coparcener
(son) has a right
to challenge the sale made by the Karta of his family. The
plaintiff being a son was one of the cocoparceners
along with
his fatherPritam
Singh. He had no right to challenge such
sale in the light of findings of legal necessity being recorded
against him. It was more so when the plaintiff failed to prove
by any evidence that there was no legal necessity for sale of
the suit land or that the evidence adduced by the defendants
to prove the factum of existence of legal necessity was either
insufficient or irrelevant or no evidence at all.
29) We are, therefore, of the considered opinion that the
reasoning and the conclusion arrived at by the High Court is
just and proper. We, therefore, concur with the view taken by
the High Court calling for no interference.
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30) In view of the foregoing discussion, the appeal fails and
is accordingly dismissed.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[SANJAY KISHAN KAUL]
New Delhi;
August 20, 2018

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