B.N. Misra, J.
1. The plaintiffs are the appellants. They filed Title Suit No. 13 of 1969 in the Court of the Munsif, Sonepur for declaration of their title over the suit lands and for perpetual injunction against the defendants. The following genealogy described in the plaint shows the relationship of the defendants.
=Bondani (D. 2)
(D. 4) (D.5)
According to the plaintiffs, since a long time there was partition between the late Bipin (husband of defendant No. 3) and Kunja (defendant No. 2), the two sons of Dhaneswar (defendant No. 1). Since then they have been separate in mess and property. The suit lands had fallen to the share of Bipin at the partition and he was possessing the same as his separate property in his own right, title and interest. Bipin was the Karta of the joint family consisting of himself and defendants 3, 4 and 5. They were governed by Hindu Mitakshara Law. On 11-9-1962 the said Bipin as manager of the family sold the suit lands in favour of the plaintiffs for a consideration of Rs. 800 and executed a registered deed of sale and delivered possession of the suit lands to the plaintiffs. Since then the plaintiffs have been in possession of the suit lands. The defendants have no manner of right, title and interest in the said lands. On 6-12-1968 the defendants unlawfully removed paddy crops from the suit lands on account of which the plaintiffs went to the police for help. However as the police did not help the plaintiffs they came to the Court and prayed for declaration of title and perpetual injunction.
2. Defendants 1 to 4 and 6 filed a joint written statement. According to the defendants, the suit lands belong to the late Madanmohan Chaini who died in the year 1957. Thereafter the suit lands devolved upon Sribatsa, Misra and defendant No. 6, the two sons of Madanmohan. The plaint genealogy is admitted. It is denied that the suit lands had fallen to the share of Bipin and were his separate property. The suit lands are claimed to be the joint property of Sribatsa and defendant No. 6. It is denied that Bipin was acting as manager of the family. It is stated that the sale was a benami transaction, no consideration had passed under the sale deed and the suit lands had not been delivered to the plaintiffs. At the instance of the ex-Sarpanch Bipin was influenced to execute a fictitious sale deed in favour of the plaintiffs. It is denied that the plaintiffs are the owners in possession of the suit lands- It is again stated that defendant No. 6 and Sribatsa are the owners in possession of the suit lands. The Guardian ad litem appointed by the Court on behalf of minor defendant No. 5 separately filed a written statement adopting the written statement filed by the other defendants.
3. The main findings of the learned Munsif are:--
(1) that the suit lands had not fallen to the share of Madan Chaini but to the share of Dhaneswar (defendant No. 1), that in the partition between defendant No. 1 and his two sons, the late Bipin and defendant No. 2, the suit lands had fallen exclusively to the share of the late Bipin and that defendant No. 6 and his brother Sribatsa never succeeded to the suit lands on the death of their father;
(2) that the sale deed Ext. 1 executed by the late Bipin in favour of the plaintiffs is not fraudulent or benami, that the consideration amount was fully paid by the plaintiffs to the vendor and that the plaintiffs are bona fide purchasers for value; and
(3) that the plaintiffs are in possession of the suit, lands and they have acquired right, title and interest over the same.
The plaintiffs' suit was accordingly decreed on contest against the defendants with costs.
4. The defendants filed Title Appeal No. 1/8 of 1973/74 in the Court of the Subordinate Judge, Sonepur. In his judgment the learned lower appellate Court agreed with the trial Court that there was partition amongst Madan Chaini and his brothers since a long time, that the suit lands had fallen to the share of Dhaneswar (defendant No. 1) and that in the partition between defendant No. 1 and his two sons, the late Bipin and defendant No. 2, the suit lands had fallen exclusively to the share of the late Bipin. As regards the sale deed Ext. 1, the learned lower appellate Court held that it was invalid and not binding on defendants 3, 4 and 5 as the plaintiffs had failed to prove the legal necessity for the sale. The appeal filed by the defendants was accordingly allowed and the judgment and decree of the trial Court were set aside.
5. Being aggrieved by the judgment and decree of the learned lower appellate Court the plaintiffs have come up in appeal to this Court This appeal was admitted for hearing on the substantial questions of law noted in Grounds Nos. 8 and 9 of the memorandum of appeal. The said grounds are extracted here-under:--
'8. For that in view of the admission by the vendor, who is now dead, in Ext. 1 about the necessity for the sale was for payment of his debts and other legal necessities of the family which is admissible under Section 32, Sub-sections (3) and (7) of the Evidence Act the learned lower appellate Court has acted illegally in not holding that the onus to prove that there was no prior debt of the vendor and there was no legal necessities, was on defendants 4 and 5 who alone were interested in the suit lands in view of the concurrent findings of the Courts below.
9. For that an alienation by a manager of a joint family made without legal necessity being not void but voidable at the option of other coparceners, the learned lower appellate Court has acted illegally in not holding that the plaintiffs were entitled to the reliefs claimed by them until defendants 4 and 5 get the sale deed Ext. 1 set aside either in whole or in part'
6. Both the Courts below have found that at the earlier partition the suit. lands had fallen to the share of defendant No. 1 and that in the partition between defendant No. 1 and his two sons Bipin and defendant No. 2, the suit lands had fallen to the exclusive share of Bipin, These concurrent findings of fact are accepted.
7. At present the main dispute between the parties revolves round the sale deed Ex. 1. Admittedly this sale deed was executed by Bipin in favour of the plaintiffs. In their written statement, the defendants alleged that the sale deed was fraudulent, fictitious and benami and that no consideration had been paid under the said sale deed. On the basis of the pleadings of the parties, the learned Munsif had framed the following issue:--
'Whether the sale deed executed by Bipin Mishra in favour of plaintiff(s) is fraudulent or benami and without consideration?'
After fully discussing the evidence adduced by both sides on this issue, the learned Munsif found that the sale deed Ext. 1 was not fraudulent or benami and that full consideration money had been paid by the plaintiffs to Bipin. The learned lower appellate Court has not disturbed nor differed from the aforesaid finding of the learned Munsiff. It appears that learned counsel for the defendants for the first time raised the question of legal necessity before the lower appellate Court. In their pleadings both parties had not whispered a word about the presence or absence of legal necessity in respect of the sale. The learned Munsif had not framed any issue as regards legal necessity. It is seen that the defendants had elicited during the cross-examination of P.W. 1, a witness to the sale deed Ext. 1, that at the time of execution Bipin had said that with the purchase-money he would buy a bullock and pay off his debts. Plaintiff No. 1 stated in his evidence that Bipin had incurred loans from some persons (two of them were named by him) and that Bipin had repaid the said loans on the day following the sale. This statement has also been elicited by the defendants during cross-examination of plaintiff No. 1. On the question of legal necessity there is no evidence on the side of the defendants. The learned lower appellate Court without referring to or discussing the evidence of P.W. 1 and plaintiff No. 1 simply rejected the same as worthless.
8. Law is settled that the question of legal necessity is a pure question of fact (See AIR 1936 Pat 275, Darbar Saheb v. Bare Lal Kandarp Nath Sah Deo, AIR 1950 Mad 560, Pethu Reddiar v. Kanda-swami Pillai and AIR 1969 Orissa 134, Binod Naik v. Chandrasekhar Padhi). Presence or absence of legal necessity having not been pleaded by the parties, the learned lower appellate Court should not have allowed the plea of absence of legal necessity to be raised for the first time before it in appeal. In AIR 1977 SC 2282 (Smt. Chander Kali Bail v. Jagdish Singh Thakur) it was held (at p, 2263):--
'..... In Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) it has been pointed out that where a claim has never been made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward. If it could be so even at the trial stage, undoubtedly, such a new question of fact could not be entertained at any appellate stage. This decision has been followed by this Court in Bhagat Singh v. Jaswant Singh, AIR 1966 SC 1861. To the same effect is the view expressed in another decision of this Court in Bachan Singh v. Dhian Dass, AIR 1974 SC 708. Hegde, J. pointed out in paragraph 6 of the judgment that a contention involving determination of questions of fact ought not to have been allowed to be raised for the first time in the second appeal in the High Court.....'
In the present case parties have not stated a word about presence or absence of legal necessity in their pleadings. The defendants have challenged the sale deed on the grounds that it was fraudulent, benami, fictitious and that no consideration had been paid. Having pleaded specific grounds affecting validity of the sale and not having pleaded absence of legal necessity, it was not open to the defendants to take a stand on the question of legal necessity for the first time in appeal. Counsel's contention as to absence of legal necessity involving determination of questions of fact should not have been allowed to be raised for the first time at the appellate stage. The learned lower Appellate Court clearly fell into error in allowing the defendants to raise this plea for the first time at the appellate stage without the same having been advanced in the pleadings. In this view of the matter it is not necessary to consider the other decisions cited at the Bar on the questions -- whether the appellate Court was wrong in putting the onus on the plaintiffs to prove presence of legal necessity when as per the evidence and recitals in the sale deed, the sale was by a father to pay off his antecedent debts and in not taking into consideration the recitals in the sale deed as to the existence of antecedent debts which were admissible Under Section 13 of the Evidence Act. The finding of the learned Munsif that the sale deed was not fraudulent or benami and that full consideration money was paid by the plaintiffs to Bipin has not been disturbed by the learned lower appellate Court and is confirmed.
9. For the reasons stated above, this appeal is allowed. The judgment and decree of the learned lower appellate Court are set aside, and those of the learned Munsif are confirmed. In the facts and circumstances of this case, parties will bear their own costs throughout.