Learned counsel for the appellants submitted that the sale of the suit property was for legal necessity. She submitted that there was a recital in the sale deed that the sale was effected for repayment of the loan of a bank. The trial Court ought to have held that there was a legal necessity for the sale. Mere recital in the sale deed which is executed just few years prior to the suit about the existence of legal necessity is not the proof of the legal necessity. The recital of legal necessity in the sale deed can at best be used to corroborate any substantive evidence of legal necessity adduced by the parties. The weight of the recitals in the sale deed may increase as time passes and other evidence of legal necessity vanishes in oblivion by passage of time. But that is not the case here. For the purpose of proving that the respondent no.5 was
indebted to bank the appellants could have easily examined an officer of the bank to prove the debt and/or produced the extract of the loan account of the respondent no.5 duly certified under the Banker's Books Evidence Act. None of these things was done. The burden of proving the necessity was on the appellants which they have failed to discharge. The Courts have accordingly held that the appellants have not proved the legal necessity. The said finding of fact is a possible finding of fact based on appreciation of evidence and not open for challenge in the second appeal.1
Bombay High Court
Shrikrishna S/O Panditrao vs All on 19 August, 2008
Bench: D.G. Karnik
Citation; 2009(3) MHLJ 139 Bom
1. This appeal is directed against the judgment and order dated 7.2.2006 passed by the District Judge, Parbhani dismissing Regular Civil Appeal no. 60 of 2003 filed by the appellants.
2. Respondents 1 and 2 are the sons and respondent no.3 is unmarried daughter of respondent no.5. Respondent no.4 is the wife of respondent no.5 and mother of respondents 1 to 3. By a sale deed dated 8.3.1996 respondent no.5 sold the suit agricultural land to the appellants. The respondents 1 to 4 filed a suit bearing Regular Civil Suit no. 124 of 2000 challenging the alienation, and for partition of the suit property alleging that the suit property was a joint family property of which the respondent no.5 was only a karta and he had no right to sell the suit property. Appellants contested the (3)
suit contending that the sale was made for legal necessity. The trial Court decreed the suit holding that the legal necessity was not proved and that the respondents 1 to 4 had 1/5th share each in the property and passed a decree for partition and separate possession of their share. The appeal filed by appellants-purchasers was dismissed by the lower appellate Court. Aggrieved appellants are in appeal.
3. Learned counsel for the appellants submitted that the sale of the suit property was for legal necessity. She submitted that there was a recital in the sale deed that the sale was effected for repayment of the loan of a bank. The trial Court ought to have held that there was a legal necessity for the sale. Mere recital in the sale deed which is executed just few years prior to the suit about the existence of legal necessity is not the proof of the legal necessity. The recital of legal necessity in the sale deed can at best be used to corroborate any substantive evidence of legal necessity adduced by the parties. The weight of the recitals in the sale deed may increase as time passes and other evidence of legal necessity vanishes in oblivion by passage of time. But that is not the case here. For the purpose of proving that the respondent no.5 was (4)
indebted to bank the appellants could have easily examined an officer of the bank to prove the debt and/or produced the extract of the loan account of the respondent no.5 duly certified under the Banker's Books Evidence Act. None of these things was done. The burden of proving the necessity was on the appellants which they have failed to discharge. The Courts have accordingly held that the appellants have not proved the legal necessity. The said finding of fact is a possible finding of fact based on appreciation of evidence and not open for challenge in the second appeal.
4. Learned counsel for the appellants then submitted that the suit was not for partition of the whole of the suit property inasmuch as the family owned one more property which was sold by the respondent in the year 1988 and that was not included in the suit for partition. Respondent nos. 1 to 3 who are minors, were not borne in the year 1988 when the previous alienation was made. They got share in the joint family property on their birth. They had no share in the property which was alienated prior to their birth in the year 1988. Sale made in the year 1988 was made by respondent no.5 as sole surviving coparcener and therefore respondents 1 to 4 have (5)
rightly not included that property in the suit for partition. In the circumstances the contention that as the properties sold by the respondent no.5 in the year 1988 were not included in the suit, it was a suit for partial partition and as such not maintainable has no merit.
5. No other point was urged. No question of law, much less a substantial question of law, arises in this appeal. The appeal is accordingly dismissed. (D.G. KARNIK),
JUDGE
arp/1988/570
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