Bombay HC: An adult member can sell the Minor's undivided interest in joint family property if it is for legal necessity

Hindu Minority and Guardianship Act (1956), Ss.6,8,12 - Minor's undivided interest in joint family property - Sale of minor's share - An adult member can sell the minor's share if it is for legal necessity - S.8 would not be applicable to minor's interest in the joint family property.

So far as Section 6 is concerned, it speaks about the natural guardian of a Hindu minor. However, it specifically excludes a minor's undivided interest in joint family property. Thus, the natural guardian father and, thereafter, the mother cannot be considered as natural guardian in respect of his undivided interest in joint family property. Section 8 lays down the powers of natural guardian. Since section 6 excludes the minor's undivided interest in the joint family property, section 8 also, would not be applicable to the minor's share in the undivided interest in the joint family property. Thus, the provisions of obtaining prior permission by the natural guardian as envisaged under section 8 sub-clause (2) would not arise in respect of a minor's undivided interest in the joint family property. Section 12 of the Act carves out an exception in respect of a minor's undivided interest in the joint family property when it states that the guardian is not to be appointed in respect of his undivided interest in joint family property. It further states that if a minor has an adult member and the property is under the management of the joint family property, no guardian should be appointed for the minor. Thus, an exception is carved out in respect of minor's interest in an undivided joint family property. Thus in view of the said provision an adult member can sell the minor's share if it is for legal necessity. [Para 12]

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

Vishwanath S/O Bhika Kolase & Anr.Vs.Kisan Mahadeo Bahadure & Ors.

Second Appeal No.241 of 1990

4th April, 2003

Coram: V.M. KANADE, J.

                  Citation: 2003(4) ALL MR 1093.

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Whether son can challenge alienation of joint family property by father for legal necessity?

  Once the factum of existence of legal necessity

stood proved, then, in our view, no co-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 co-coparceners along with his father Pritam 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.” {Para 26} 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7037 OF 2021

BEEREDDY DASARATHARAMI REDDY  Vs V. MANJUNATH AND ANOTHER 

Author: SANJIV KHANNA, J.

Dated: DECEMBER 13, 2021.

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Whether burden of proof can be put on plaintiff to prove that there was no legal necessity for transfer of property?

Merely because the burden has been wrongly thrown on the defendants, it cannot be said that the learned First Appellate Court has committed any mistake in law because it has appreciated evidence from both the angles. Plaintiff could not have been asked to place any negative evidence on record to show that, there was no legal necessity. Parties are required to adduce positive evidence and therefore the statement on oath by the plaintiff that defendant No. 1 had no legal necessity to sell the lands was sufficient to hold it accordingly.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 58 of 1995

Decided On: 13.06.2019

Sangnath  Vs.  Babu and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MhLJ 930

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Whether defendant taking plea of legal necessity can lead evidence to show that property was alienated for discharge of antecedent debt?

Somanath Sahu, the alienor of Ext. D was the manager of the joint family consisting of he himself and his sons, plaintiff and defendants 3 and 4. Plaintiff alleged in the plaint that there was no necessity for the sale in question and the family has not been benefited by the sale. Defendant No. 1 in the written statement never raised specifically that there was any antecedent debt and to discharge that debt sale had been affected. On the other hand, it was averred that there was legal necessity of the family and for the said necessity the sale had been affected. The question that arises for consideration, therefore, is whether in the absence of any pleading with regard to the existence of antecedent debt or that the sale was for discharge of antecedent debt would it be permissible for a party to lead evidence on that score and would it be permissible for a Court to consider that evidence and came to a finding that the sale was for discharge of antecedent debt. The manager of a joint Hindu family has power to alienate for value joint family property, so as to bind the interests of both adult and minor co-parceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate, what would be a legal necessity, had been described by Mulla in Article 243 of the Principles of Hindu Law so as to be within the powers of a Manager of a joint family to make an alienation. When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating co-parcenary property which no other co-parcenar has. He can make a gift of ancestral movable or immovable property as provided under Articles 225 and 226 and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over co-parcenery property than any other manager. Thus the power of sale of any co-parcenery property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the co-parcenery property to discharge a debt contacted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at. Mr. D. Mishra, however, places reliance on a decision of the Karnataka High Court in the case of Fakirappa v. Venkatesh MANU/KA/0086/1977, and contends that no prejudice having been caused to the plaintiff, even if it was not pleaded in the written statement that the alienation was for the discharge of antecedent debt, it would be open for the defendant to lead evidence on that score and the Courts can examine the same and come to their own conclusion. But on examining the aforesaid decision, I do not find anything mentioned therein which supports Mr. Mishra's stand. Further in that case the defendant pleaded in the written statement that the sale deed was executed by the father of the plaintiff for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that, therefore, the sale was binding on the plaintiffs. The aforesaid decision is, therefore, of as assistance to the contention raised by Mr. D. Mishra. Mr. D. Mishra though relies upon the decision of the Supreme Court in the case of Magubai Ammal v. S. Shama Rao MANU/SC/0089/1956, and contends that the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice and, therefore, the plea of antecedent debt can be examined and sustained as in that case. The Supreme Court on examining the provision of Order 6 Rule 2, C.P.C. came to hold that even though no specific pleading had been taken for the sale, the defendant was affected by the doctrine of lis pendens and non-specific issue was raised thereon but the defendants went to the trial with the full knowledge that the question of lis pendens was in issue and had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and, therefore, the absence of specific pleading was treated to be a mere irregularity, but I am unable to apply that ratio to the present case since the plaintiff never knew that the defendants would prove a case of existence of antecedent debt. Such case not having been pleaded in the written statement, it is only at the evidence stage of the defendants some of the witnesses stated about the same. Consequently, the plaintiff had no opportunity to rebut the same and, therefore, it cannot be said that the plaintiff was not-prejudiced in the absence of the specific pleading. I would, therefore, hold that the question of sale being executed for discharge of an antecedent debt not having been pleaded in the written statement, the evidence led on that score by the defendants were without jurisdiction and the Courts had no jurisdiction to come to a finding on that score on the basis of the said evidence. Consequently, the finding that the sale was affected for repayment of an antecedent debt and, therefore, it was for necessity cannot be sustained and is accordingly quashed. No other necessity having been established, it being not established that the sale was for the benefit of the estate and the finding on the question of antecedent debt having been set aside by me, it must be held that the father of the plaintiff had no power to alienate the joint family co-parcenery property under Ext. D while acting as the Manager of the family and the sale deed Ext. D must be held to be invalid and does not confer any title on defendant No. 1.

IN THE HIGH COURT OF ORISSA

Second Appeal No. 31 of 1981

Decided On: 27.08.1990

 Biranchi Narayan Hadu  Vs.  Smt. Krushnapriya Debi and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik, J.

 Citation : AIR 1991 Ori 55

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Whether agreement of sale executed by karta is binding on member of joint family even if it is not executed for legal necessity?

It is submitted by learned counsel for these Defendants that, admittedly the suit property is the ancestral joint family property of Defendant No. 1, therefore Defendant Nos. 2 and 3 are having coparcenary rights therein. They were minor when the agreements were executed. Hence, the burden was upon the Respondent to prove that these agreements were executed for legal necessity. However, no such case is made out or proved. Hence, these agreements cannot be binding on the shares of these defendants. To support this submission, the reliance is placed by learned counsel for these Appellants on the judgment of the Division Bench of this Court in the case of Shrikant Trimbakrao Begade & Ors. V/s. Natthu Maroti Shivarkar (Dead) Through LRs. & Ors. MANU/MH/0520/2017 : 2017(4) Mh.L.J. 590, wherein relying upon Section 243 and 244 of the Hindu Law (Mulla), it was held that, "the burden to prove the legal necessity is always on the purchaser of the joint family property". Here, in the case, according to learned counsel for the Appellants, as no such enquiry was made by the Respondent before purchase of the property to prove the existence of legal necessity for Defendant No. 1 to sell the suit land, the agreements of sale cannot be binding on the share of Defendant Nos. 2 and 3 and also on the share of Defendant No. 4.

61. However, in my considered opinion, this contention is also devoid of merits because, as per the legal position, the transactions entered into by the karta of the Hindu Joint Family are binding on the undivided share of the minors as well as other members of the family, not only when they are executed for the legal necessity but also for the benefit of joint family Here, in the case, on account of these agreements of sale executed by Defendant No. 1 with Respondent, Defendant No. 1 can save the surplus land held by the joint family from the clutches of ULC Act. The entire joint family is thus benefited by this transaction. Hence, these transactions bind not only Defendant No. 1 but also Defendant Nos. 2, 3 and 4, who are benefited thereby.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 66 and 67 of 2003

Decided On: 08.08.2018

Madhavrao Ramchandra More  Vs.  Rajendra Sahakari Griha Nirman Sanstha Maryadeet and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation:2019(1)MhLJ 419

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What are necessary conditions for drawing presumption U/S 90 of Evidence Act?

 This Court in Paramesh Sarmah & Ors. Vs. Islamali & Ors. (supra), held in para-9 as under:

"9. The condition on which the execution of a document may presume for:-

'(1) That it must have been existed for 30 years or more; (2) It must be produced in court from proper custody. (3) The document must be in appearance free from suspicion and doubt; (4) It must be in a handwriting of a person and should not be anonymous. Generally there is no presumption about recitals in ancient document, but in special circumstances a recital of consideration, legal necessity, etc., may be presumed under S. 90...................."

23. In Bipin Ch. Kalita Vs. Sarama Kalita & Ors. (supra), this court in para-21 held as under:

"The gravamen of the authorities referred to above, is that the presumption comprehend in Section 90 of the Act, is relatable to the writings, execution and the attestation of the document, the contents thereof, being subject to proof in accordance with law. Unerringly, the approach of a court in the matter of presumption under Section 90 of the Act has to be essentially to effectuate the purpose thereof and not to render it nugatory. Though, a court is endowed with a discretion to draw a presumption as enumerated in the section, the exercise thereof, has to be informed with objectivity to further the legislative intendment. Unless, the attending facts and circumstances on the face of the document renders its existence, execution and attestation impossible, a rebuttable presumption is raised in favour of the genuineness and authenticity thereof, casting a burden on the other side to establish the contrary."

IN THE HIGH COURT OF GAUHATI

RSA 107/2014

Decided On: 18.07.2018

 Nepurjan Bibi Choudhury Vs. Musabbir Ali Choudhury and Ors.

Hon'ble Judges/Coram:

Mir Alfaz Ali, J.

Citation: AIR 2018 Gauhati 151

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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.

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 father Pritam

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.

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Whether Mahant of temple has authority to execute lease deed on behalf of temple?

 As has been observed above that since lease deed Ex. PW-2/A was void ab initio, no right over suit property, if any, could be claimed by plaintiff on the basis of the same. Though plaintiff, while leading oral evidence as well as placing reliance on lease deed available on record, made an endeavor to prove on record that pursuant to execution of aforesaid lease deed, she was put into possession of the property and as such she could not be evicted from the suit land without following due procedure of law, but in the instant case, once plaintiff failed to prove on record that 'Mohatmim' had any authority to execute lease deed or he was authorized to alienate the property of the temple or trust or he alienated the property for the legal necessity and for benefit of trust/temple, learned trial Court wrongly concluded that plaintiff's right over the suit land, on the basis of lease deed, has not been terminated lawfully. Since, it stands duly proved on record that 'Mohatmim' Ramanuj had no authority to alienate property, lease executed on his behest in favour of plaintiff has/had no force and it creates/created no rights in favour of plaintiff. 

Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri. Reference in this connection may usefully be made to page 931 of Mayne's Treatise on Hindu Law (11th Edition), where the position is stated as follows:-

"It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity; for, to fix the rent, though adequate at the time in perpetuity. in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty on the part of the manager. In Talaniappa Chetty v. Streemath Deivasikamony (1917) 44 I.A. 147. Lord Atkinson observed: "Three authorities have been cited which establish that it is a breach of duty on the part or a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent. However adequate that rent may be at the time of granting, reason of the fact that, by this means, the debutter estate is deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased."

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular Second Appeal No. 331 of 2005

Decided On: 21.07.2017

 Urmil Gupta Vs. Commissioner

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2017 HP183

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Whether burden of proof to prove legal necessity is on purchaser of property?

There is no debate before us that the impugned sale can be upheld if it is for legal necessity and not otherwise. It is admitted position that burden in this respect lies on the purchasers i.e., defendants who are the respondents before us.
Accordingly, We record our findings on the points for determination framed supra. The material on record does not show any inquiry conducted by the respondents before us about the legal necessity felt by Trimbakrao for the sale of kh. No. 10 ad-measuring 20.69 acres of mouza Kheda, Tah. Warora Distr. Chandrapur on 20.10.1951 vide sale-deed at Ex. 44. Such an inquiry into alleged legal necessity should have been prior to the obtaining the sale-deed Ex. 44 and evidence about it can not be adduced for the first time in a suit filed by the appellants' vide Special Civil Suit No. 33 of 1971. It also follows that here the sale of kh. No. 10 is not proved to be of an agricultural land which could not have been cultivated profitably or then to avoid any legislation. In any case, such a sale in present facts can not be construed as one for legal necessity. The burden to prove the existence of the legal necessity always continued on the purchaser respondents,
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 28/1991 in First Appeal No. 133/1976

Decided On: 31.03.2017

 Shrikant and Ors. Vs. Natthu Maroti Shivarkar and Ors.

Hon'ble Judges/Coram:
B.P. Dharmadhikari and Swapna Joshi, JJ.
Citation 2017(4) MHLJ 591

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What is importance of recitals while considering legal necessity for transfer of property?

Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was entered inter. The recitals may be used to corroborate other evidence of the existence of legal necessity. The weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially, when he withholds evidence in his possession."

 Judgment relied upon by Shri Parchure, learned counsel and reported at MANU/SC/0388/1997 : (1997) 9 SCC 701 (Sunder Das and others.vrs. Gajananrao and others) shows that alienator Karta joined the suit by his son filed after eleven and half years to set aside the alienation on the ground of absence of legal necessity. In the mean while, purchaser had spent huge amount to effect substantial construction. Recitals in sale deed recorded that it was for legal necessity and seller a upper division clerk in civil Court was well aware of the Court proceedings. Plaintiffs did not lead evidence to rebut the fact stated in recital. Evidence on record demonstrated that house sold was dilapidated and dead burden to family. Seller father (karta) was also in debts and not having any vices or immoral conduct. Thus in these facts, suit was held to be instituted to extort more money from the purchaser and dismissed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 28/1991 in First Appeal No. 133/1976

Decided On: 31.03.2017

 Shrikant and Ors. Vs. Natthu Maroti Shivarkar and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari and Swapna Joshi, JJ.

Citation 2017(4) MHLJ 591

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Whether recitals made in sale deed will prevail over averments made in objection petition?

In re : whether sale was for legal necessity, and thus binding :

83. It was submitted that sale was for legal necessity for benefit of estate. It has been averred in the objections preferred by the purchasers that sale was made by Hamid Ali Khan, defendant No.1, for payment of land revenue. Thus it was contended that the payment of land revenue has enured for the benefit of the entire estate. Thus sale would be valid and binding on co-heirs. Except making the aforesaid bald statement, nothing has been placed on record to indicate that the sale was for payment of land revenue. On the other hand, when we peruse the sale deed, recital of it makes it clear that the sale was effected by Hamid Ali Khan for his ‘personal necessity’. He had not executed the sale deed for payment of land revenue as its recital is otherwise which would prevail. Nor the sale deed had been executed in the fiduciary capacity acting on behalf of co-sharers rather he has claimed in the sale deed that he was the exclusive owner of 68 acres 10 guntas area of property and was in possession thereof. He had sold the land for a consideration of Rs.2000 in view of his personal necessity. The sale was made after taking permission from the Deputy Collector Division, Distt. West, Hyderabad. Thus, the sale deed negates the aforesaid bald averment made in the objection petition. Even otherwise under the Mohammedan Law, it was not open to Hamid Ali Khan, defendant No.1 to act in fiduciary capacity to sell the property and bind shares of others. It is not mentioned in sale deed that Hamid Ali Khan had sold for any legal necessity or for the benefit of the entire estate. The recital in sale deed has the evidentiary value and Bala Mallaiah and his successors are bound by what has been mentioned therein. Thus, no case is made out on the basis of the aforesaid submission also to make an interference.

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
Dated: 21 MARCH 2017

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Whether legal necessity can be proved by statement of deceased recorded before tenancy court?

Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that

under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically

mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
 Kisan Ramchandra Kokane

V
 Anjani w/o Laxman Kapase,


 CORAM: T.V. NALAWADE, J.
 DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom

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When alienation of property of joint hindu family will be for legal necessity?

Another contention of plaintiff Deodatta is that there was no legal necessity for his father Shankarrao to execute the sale deed. In this connection, plaintiff submits that Shankarrao embarked upon new ventures without any experience in different trades and suffered losses. He submits that family of Shankarrao was not a trading family. The income from agricultural land and other sources was enough to maintain the joint family, but to satisfy his desires and needs, he, on his own, recklessly entered into grain business, distribution of films and American futures. According to him, the sale was not independent, but correlated to earlier Aywarharik debts and since it was not for antecedent debts, sale was not binding on the plaintiff. Shri Deshpande, learned Counsel placed reliance on the following authorities in support of this challenge:

"(i) The Benares Bank Ltd. v. Hari Narain and others (MANU/PR/0021/1932 : AIR 1932 Privy Council 182).
(ii) Sabhachand Navalchand v. Sambhoo Gyanoba Bhoj (MANU/MH/0123/1936 : ACJ 1936 Bombay Law Reporter 118).
(iii) Ganesh Prasad Singh and another v. Sheogobind Sahu and others (MANU/BH/0195/1937 : AIR 1938 Patna 40).
(iv) Sankaranarayanan and another v. The Official Receiver, Tirunelveli and others (MANU/TN/0297/1977 : AIR 1977 Madras 171)."

57. In reply, learned Senior Counsel for respondent Chimotes placed strong reliance on the decision in Venkatesh Dhonddev Deshpande v. Sou. Kusum Dattatraya Kulkarni and others (MANU/SC/0409/1978 : AIR 1978 SC 1791) and would submit that house sold by Shankarrao was for legal necessity and it is equally binding on his legal heirs too.

58. From the evidence brought on record, it can be seen that suit house was ancestral. In 1936, after Shankarrao attained majority, house came to his management. In 1949, he entered into business of cinema and grain shop. It further appears from the evidence that Shankarrao was also dealing in business of American futures. It is also apparent that Shankarrao was required to borrow loan from time to time as he was unsuccessful in businesses. The question is whether loans borrowed by Shankarrao were for the joint family as a Karta or in his individual capacity to satisfy his own desires ? Here it would be relevant to look into the debts with which sale deed is actually concerned. As stated above, agreement to sell was executed on 24/1/1951 when the house was attached in execution of decree filed by Krishna Keole. To get the sale postponed, Shankarrao executed agreement to sell of house in favour of Wasudeo and Ramchandra Chimote. Accordingly, he received Rs. 2000/- from Chimotes, paid the same to Krishna Keole and got the sale postponed. On 9/7/1951 he paid remaining amount of Rs. 6200/- to Krishna Keole in full satisfaction of the decree. He executed sale deed on that day in favour of Chimotes, received Rs. 6200/- and paid to Krishna Keole. Thus, from the sale deed, it is clear that to satisfy the debts received from Krishna Keole, Shankarrao being in need of money was required to sell the house so as to satisfy the decree in favour of Krishna Keole.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 77 of 1995 in First Appeal No. 22 of 1980, 

Decided On: 30.08.2016

Prabhatai and Ors.
Vs.
 Chimote & Sons and Ors.

Hon'ble Judges/Coram:B.P. Dharmadhikari and Indira Jain, JJ.

Citation: 2017(2) MHLJ 83 Bom

Read full judgment here: click here

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How to ascertain legal necessity by conduct of parties?

Learned counsel for the respondent placed
reliance on cases reported as 2010 (5) Mh.L.J. 713
(Ramchandra vs. Vasant), A.I.R. (33) 1944 Oudh 92 (Sant
Bakhsh Singh v. Lachhman Prasad) and the decision
given of this Court, other Hon'ble judge in Second Appeal
No.287/1989 (between Suryakant Manikrao Deshmukh
and Mahavir Sahebrao Maske). In those cases also when
the question of legal necessity was involved, the suit
involving setting aside of the sale, made by father and
father did not turn up to give evidence, presumption was
drawn that there was legal necessity. In the present
matter also there is evidence that the plaintiffs and
defendant No.1 are living together and they are benefited
by the consideration. As there is no evidence, the
inference is not possible that defendant No.1 was addicted
to bad vices and the sale proceeds were not utilized for
the family. If they are living together there was some
reason for the sale and the reason given by the defendant
No.2 is that the land was not giving sufficient income and
so they started business at Ambajogai. Thus necessary

probability was created by the defendant No.2 in his
favour on the point of legal necessity and the District
Court has not committed any error in holding that thisburden is discharged by the purchaser. In the result, the
point is answered against the appellants and the appeal

is dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 125 of 1992

 Shridhar s/o Bajirao Pawar,

V
 Bajirao s/o Dhondiba Pawar,

 CORAM: T.V. NALAWADE, J.

 DATE : 22 JULY 2016
Citation: 2016(6) ALLMR 280

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When recital of sale deed is relevant for ascertaining legal necessity?

Recitals in a deed of legal necessity do not by
themselves prove legal necessity. The recitals are,
however, admissible in evidence, their value varying
according to the circumstances in which the
transaction was entered into. The recitals may be used
to corroborate other evidence of the existence of legal
necessity. The weight to be attached to the recitals
varies according to the circumstances. Where the
evidence which could be brought before the Court and
is within the special knowledge of the person who
seeks to set aside the sale is withheld, such evidence
being normally not available to the alienee, the recitals
go to his aid with greater force and the Court may be
justified in appropriate cases in raising an inference
against the party seeking to set aside the sale on the
ground of absence of legal necessity wholly or partially,
when he withholds evidence in his possession.
The learned counsel for the original plaintiff,
present respondent submitted during arguments that
recitals in the document may be relevant but they are not
conclusive proof of existence of legal necessity. There is
no dispute over this proposition in view of observations
made in the cases cited supra. Ordinarily the Court will
look for some more evidence which could be independent
even when there is recital of legal necessity in the
document. However, when due to efflux of time
independent evidence is not available the recitals in the
sale deed necessarily assume greater importance.
Similarly as already observed, when evidence on inquiry
about legal necessity is lost due to delay in action, the
recital assumes greater importance. In that case if there is
evidence of reasonable belief of the purchaser that would
be sufficient.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989

Kisan Ramchandra Kokane

V

 Anjani w/o Laxman Kapase,

 CORAM: T.V. NALAWADE, J.
 DATE : 20th JUNE 2016.
Citation:2016(6) MHLJ115,AIR 2017 (NOC) 64 Bom

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What is basic concept of legal necessity?

Meaning of legal necessity is given in para 241
of the Hindu Law by Mulla. This para shows that legal
necessity includes family debts incurred for family
business or other necessary purpose. It is mentioned that
in case of manager, who is other than the father, it is not
enough to show merely that the debt is pre-existing debt.
It is also made clear that seven instances mentioned in
this paragraph are not the only indices of legal necessity
and it is duty of Court to ascertain as to whether there
was legal necessity from the facts of that case. One
illustration shows that for maintenance of coparceners

and of the members of their family the property can be
sold. Under Hindu law, Karta of joint Hindu family has the
power to make alienation of the joint Hindu family
property for legal necessity. Father, Karta, has such power
and it can be said that in view of the meaning of legal
necessity given in para 241 his powers are larger than the
powers of other Karta. As the Karta is required to take
care of all the members of the Hindu joint family, Hindu
law has given him discretion and he is to arrive at decision
as to whether there is legal necessity. He is also having
jurisdiction to decide in what way such legal necessity can
be fulfilled, either by mortgage or sale. Such use of
discretion is however subject to the scrutiny of the Courts.
Para 243 from the same book shows that the purchaser is
expected to make inquiry with regard to legal necessity
but he is not expected to keep follow up to ascertain as to
whether the proceeds were really applied for legal
necessity.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 125 of 1992

 Shridhar s/o Bajirao Pawar,

V
 Bajirao s/o Dhondiba Pawar,

 CORAM: T.V. NALAWADE, J.

 DATE : 22 JULY 2016
Citation: 2016(6) ALLMR 280

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When suit filed by several quondam minors for setting aside alienation of property by guardian will not be barred by limitation?

Hence, in view of our above discussion, the limitation to file the

present Suit is governed by Article 60 of the Act and the limitation is 3 years from the date of attaining majority. When once we arrive at a

conclusion that Article 60 of the Act applies and the limitation is 3

years, the crucial question is when there are several plaintiffs, what is

the reckoning date of limitation? A reading of Section 7 makes it clear

that when one of several persons who are jointly entitled to institute a

Suit or make an application for the execution of the decree and a

discharge can be given without the concurrence of such person, time

will run against all of them but when no such discharge can be given,

time will not run against all of them until one of them becomes

capable of giving discharge.

32. In the case on hand, the 1st plaintiff was 20 years old, the 2nd

defendant was still a minor and the plaintiffs 3, 4 and 5, who are

married daughters, were aged 29, 27 and 25 respectively, on the date

of institution of the Suit in the year 1989. As per Explanation 2 of

Section 7, the manager of a Hindu undivided family governed by

Mithakshara law shall be deemed to be capable of giving a discharge

without concurrence of other members of family only if he is in

management of the joint family property. In this case, plaintiffs 3 to 5

though majors as on the date of institution of Suit will not fall under

Explanation 2 of Section 7 of the Limitation Act as they are not the

manager or Karta of the joint family. The first plaintiff was 20 years

old as on the date of institution of the Suit and there is no evidence

forthcoming to arrive at a different conclusion with regard to the age

of the 1st plaintiff. In that view of the matter, the Suit is instituted well

1within three years of limitation from the date of attaining majority as

envisaged under Article 60 of the Act.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3486 OF 2016

 NARAYAN .Vs BABASAHEB & ORS.

Citation:2016(4) ALLMR481 SC,(2016)6 SCC 725,2017(1) MHLJ
29 SC

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When property inherited by father can not be treated as ancestral property?

The whole argument of the learned counsel is placed on a wrong premise that there is a presumption of existence of joint family property for a joint family. The incident of joint family for Hindus is the normal rule and the presumption does not extend beyond the fact that thee exists a joint family. However, if an issue was to be brought before the Court, of whether the father was competent to execute the sale, the impeaching plaintiff as a son shall prove two aspects: (i) that the property is ancestral and (ii) that the sale was without necessity. Both must exist and if only one is admitted to be shown, the case will fail.

Without any discussion, I am prepared to accept that the father was selling the property without any necessity. If the matter would therefore require consideration of whether the property was ancestral, then it must be understood that the expression is legally loaded. The ancestral property is just not a property coming to a person from a father or grand father. The manner of such devolution is crucial. The property coming from grand father to father on intestate succession will be understood in legal parlance applicable to Hindus as unobstructed heritage. There is another form of devolution as obstructed heritage, which occurs when there is any form of transfer of right otherwise then under natural succession. Consequently, the property obtained by a Hindu male by sale or gift will be taken as property obtained by that person as an obstructed heritage and that property shall be separate property in his hands even vis-a-vis his own son. Consequently, the property that was obtained by the plaintiff's grandfather Shankar by way of Hiba from his father will be separate property and on his death after the Hindu Succession Act, the property inherited by his son namely, the 2nd defendant along with his own brothers and sisters will be the property taken as having devolved on them by the operation of Section 8 of the Hindu Succession Act. Hence the property inherited by father would partake the character of separate property, as held by the Hon'ble Supreme Court in Chander Sen's case (supra). This decision was cited and proved in later decision of the Supreme Court in Yudhishtir Vs. Ashok Kumar, AIR 1987 SCC 558. If the property was, therefore, held by the father on succession along with his own brothers and sisters, that property cannot be said to be ancestral property in his hands vis-a-vis his son, the plaintiff, merely by  the fact that he did not earn the same but got it on succession from his father. The normal understanding of an ancestral property as that which has come from the ancestor and to be treated as such qua his own son will have to be understood and reinterpreted in the light of the change of law that came about by the advent of the Hindu Succession Act, 1956.

Punjab-Haryana High Court

Rajesh Kumar And Anr vs Gurmeet Singh And Anr on 7 December, 2015

                      

  RSA No. 2660 of 2015 (O&M)

Citation;AIR 2016(NOC)273(P&H)

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How to appreciate evidence of legal necessity in case of sell of ancestral property of Hindu joint family?

The   learned   District   Judge   has   considered   this   aspect   in
paragraphs   15   and   16.   After   considering   the   evidence   on   record,   the
learned   District   Judge   observed   that,   no   doubt,   there   was   outstanding
amount of loan of Tagai.   However, there was no pressing demand for
recovery of said loan.   There was neither any attachment nor any notice for
sale of the suit land.   At the most, it can be said that there was dues and
the said dues are from 1954­55.   The liability was not pressing liability.   In
the case of Smt. Rani and another (supra), the Apex Court has held that
legal necessity does not mean actual compulsion. It means pressure
upon   the   estate   which   in   law   may   be   regarded   as   serious   and
sufficient.  The onus of legal necessity may be discharged by the alienee by
proof of actual necessity or by proof that he made proper and bonafide
enquiries about the existence of the necessity and that he did all that was
reasonable to satisfy himself as to the existence of the necessity.  Perusal of
the recitals in the sale deed shows that the property was sold for meeting
private expenses.  It, however, does not refer to either Govt. debt or debt

obtained privately.  No material is produced on record by the defendant No.
2 as regards the legal necessity at the time of the execution of the sale deed
dated 08/04/1969.   No material is also produced by defendant No. 2 to
show that he had made proper and bonafide enquiries and he did all that
was reasonable to satisfy himself as to the existence of the necessity.   If the
tests laid down by the Apex Court in the case of Smt. Rani and another
(supra) are applied to the present case, I do not find that the learned
District Judge committed any error in holding that the defendant No. 2 did
not establish expenses of legal necessity.  
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.103 OF 1990
 Basheer s/o. Amir Patel

VERSUS
 Dnyaneshwar S/o. Bhikarchand
    
                  CORAM : R.G.KETKAR, J.
DATE OF JUDGMENT : 24th NOVEMBER,2014.
Citation; 2015(5) MHLJ 853

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When legal necessity is not proved in suit for specific performance of contract?

As to question nos.(a) and (b), the following facts are not in

dispute:

(I) That the defendant Ramchandra the deceased was the

father who had three sons and wife and admittedly the suit

property was the joint family property held by him with his

children and wife. The three sons were adults and admittedly

had interest in the undivided suit property. Ramchandra had

obtained loan on the suit property from Nasik District Land

Development Bank for sinking well but suffered loss and could

not repay the loan. As on the date of the agreement of sale

Ex.51 dated 1st August, 1981 the outstanding loan amount

against him was Rs.14300/.

It is the case of the appellants that

Ramchandra agreed to sell the suit property to them (plaintiffs)

for clearing the entire loan liability over the suit property and

that is why he entered into an agreement of sale with the

appellants and he alone executed the agreement Ex.51. Clause

5 of the Ex.51 shows that appellants had agreed to make

payment of the entire outstanding loan. Ramchandra alone had

put his thumb impression on the agreement while his two sons

Dattu and Shankar had signed as attesting witness to the

agreement while the third son Yeshwant had not signed the

agreement so also Ramchandra's wife.

(II) Clause 4 of the agreement in all details show the nature

of the property as the ancestral property. Clause 12 of the

agreement shows the names of three adult sons Dattu, Shankar

and Yashwant and the last sentence therein shows that

signatures of the other adult members of the family will be

obtained on the sale deed. There is nothing in the agreement

Ex.51 to show that though it was drafted by an Advocate with

15 clauses and 5 pages as to the amount of total loan liability

with interest on the date of agreement of sale. Clause 2 of the

agreement shows that the amount of Rs.5000/was

written later

on in hand writing as Rs.7300/and

payment to be made in the

bank again was written in hand writing as against the entire

agreement which was typewritten.

Further clause 12 shows

that money was required for expenditure on agriculture and

family maintenance but again the words 'for agreement of the

loan of the bank' were put in hand writing. It is thus clear that

Ex.51 does not support the case of the appellants that they knew

about the entire loan liability of Rs.14300/on

the date of the

agreement before agreeing to purchase the suit property for

discharging the loan liability of the defendant. The appellants

remain satisfied, or to put in other words did not insist for

signatures of his two sons Dattu and Shankar along with

Ramchandra as the persons agreeing to sell the joint family

property, with their signatures as attesting witnesses only when

the appellants were fully aware that the property was ancestral

property and was held by defendant Ramchandra jointly with his

adult sons and his wife. These taletelling

documentary

evidence on the contrary shows that the appellants knew that

the two sons Dattu and Shankar and the third son Yashwant did

not at all want to sell the suit property under Ex.51. In other

words the appellants can be posted with the knowledge that

Ramchandra and his family members with adult sons did not

have any deliberations jointly nor was any unanimous decision

by them to agree to sell the suit property for the legal necessity

to the appellants by Ex.51. The appellants can also be posted

with further knowledge that there was no authority in the

defendant Ramchandra to agree to sell the suit property under

Ex.51. The appellants did not at all explain as to why the

appellants did not insist for signatures of Dattu and Shankar on

the agreement rather than having them as attesting witnesses on

Ex.51, which they learned that the suit property was joint family

property.

(III) It is then seen from the record that the amount of

Rs.5000/was

paid by the appellants on 3rd September, 1981 to

the bank directly and the receipts are duly proved on record.

But then there is no evidence on record to show that the said

amount of Rs.5000/deposited

with the bank directly was

besides the amount of Rs.7300/or

out of Rs.7300/only.

The

only inference in the light of the above facts and evidence that

can be drawn is that the appellants had paid the amount under

the agreement to the defendant Ramchandra by way of loan and

obtained the agreement Ex.51 from him and none of the other

coparceners

i.e. three sons had agreed to sell the suit property

and that on the contrary even those two sons did not want to

sign the agreement nor wanted to sell the suit property. It must

therefore be held that the agreement Ex.51 was unilaterally

executed by defendant Ramchandra without any authority from

the other adult coparceners

so as to bind them. The submission

made by the learned counsel for the appellants that respondent

acting as Karta of the family was entitled to agree to sell the suit

property to the appellants for legal necessity in order to save the

suit field from being auctioned in view of the pressure from the

bank does not appeal to me. The authority in the Karta would

not be absolute particularly when as pointed out earlier except

Ramchandra none agreed to sell the suit property and on the

contrary there was a resistance from the sons. In my opinion, the above legal position is apt in the fact

situation present in this case. It is anxious to note that though

the appellants fully knew that the suit property was ancestral

property and three sons and wife of Ramchandra had interest

therein and when it was the case of the appellants that the

property was sold out for legal necessity none of the sons were

even joined as a party to the suit which is an indicator of the fact

that the appellants very well knew that he would not be able to

make any claim against all the three sons and would be able to

claim only against the defendant Ramchandra, who alone was

the defendant.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.563 OF 1992

WITH

CROSS OBJECTION (ST). NO.22235 OF 2009

IN

SECOND APPEAL NO.563 OF 1992

Shri Kashinath Rajaram Kasabe and Ors. .. Appellants

Vs.

Shri Ramchandra Tukaram Kasabe,

CORAM: A.B.CHAUDHARI, J.

PRONOUNCED ON: 8TH OCTOBER, 2014

Citation; 2015(1)ALLMR753

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