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Girdhar Singh and anr. Vs. Anand Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 59 of 1973
Judge
Reported inAIR1982Raj229; 1982()WLN246
ActsHindu Law; Hindu Minority and Guardianship Act, 1956 - Sections 8
AppellantGirdhar Singh and anr.
RespondentAnand Singh and ors.
Appellant Advocate J.S. Rastogi, Adv.
Respondent Advocate K.N. Tikku, Adv.
DispositionAppeal dismissed
Cases ReferredSmt. Suga Bai v. Hira Lal
Excerpt:
.....can be looked into in respect of a case, which is not made out in the pleadings.;the defendant anand singh had taken the plea of legal necessity in his written statement and an issue was also framed and the parties have led evidence regarding legal necessity and as such the question has to be determined in the present case. the question of legal necessity is a question of fact and has to be determined on the facts and circumstances of each case.;(b) hindu law - sale of immovable property of minors of hindu joint family by natural guardian--existence of legal necessity--proof of;in a case where any immovable property of minor members of a joint hindu family is sold by a natural quardian in order to pay of debts of the father of minor plaintiffs, it is not only necessary to prove..........a suit through their guardian mathura lal on 22-10-1967 with the allegations that their father nand singh died four years ago at village phuleta, tehsil aligarh. the plaintiffs were minor at that time and after the death of nand singh had acquired khatedari rights in the agricultural land left by nand singh and were heirs of other properties left by nand singh. initially the suit was filed against anand singh and mst. chhatra kanwar widow of nand singh, but subsequently, mst. phhol kanwar daughter of nand singh was also added as defendant no. 3 by the order of the court dated 10-9-1964. it was alleged that there was agricultural land in the khate-dari of nand singh in village phuleta. the defendant anand singh and mst. chhatra kanwar in collusion got the agricultural land mentioned.....
Judgment:

N.M. Kasliwal, J.

1. This is a civil appeal by the plaintiffs against the judgment and decree passed by the learned Additional Sessions Judge No. 3, Jaipur City, Jaipur, dated 2-8-1972 confirming the judgment and decree passed by the learned Civil Judge, Tonk dated 10-8-1967 dismissing the suit for declaration and possession.

2. Brief facts leading to this appeal are that the plaintiffs-appellants (minors) filed a suit through their guardian Mathura Lal on 22-10-1967 with the allegations that their father Nand Singh died four years ago at village Phuleta, Tehsil Aligarh. The plaintiffs were minor at that time and after the death of Nand Singh had acquired Khatedari rights in the agricultural land left by Nand Singh and were heirs of other properties left by Nand Singh. Initially the suit was filed against Anand Singh and Mst. Chhatra Kanwar widow of Nand Singh, but subsequently, Mst. Phhol Kanwar daughter of Nand Singh was also added as defendant No. 3 by the order of the court dated 10-9-1964. It was alleged that there was agricultural land in the khate-dari of Nand Singh in village Phuleta. The defendant Anand Singh and Mst. Chhatra Kanwar in collusion got the agricultural land mentioned in para No. 1 of the plaint sold by Mst. Chhatra Kanwar in favour of Anand Singh for an amount of Rs. 7.000/-. The sale deed was got executed on 20th November, 1959 and was registered on 24-4-60. Mst. Chhatra Kanwar had no right to sale and get registered the aforesaid land belonging to plaintiff, which was in the khatedari of their deceased father Nand Singh without seeking permission from a competent court nor Anand Singh had any right to purchase the aforesaid land of plaintiffs from Chhatra Kanwar. The aforesaid sale and the sale deed were unauthorised, illegal and void. The plaintiffs after the death of their father had shifted from village Phuleta to village Sirash. The plaintiffs came to know about the sale in May, 1963 when they went to village Phuleta to took after their properties. The plaintiffs, therefore, prayed that the sale of the above mentioned agricultural land and registered sale deed dated 25-4-1960 be declared void and inoperative and the plaintiffs be given possession over the land mentioned in para No. 1 of the plaint.

3. The defendant No. 1 filed a written statement taking the plea that apart from the plaintiffs-defendant No. 2 Chhatra Kanwar and a daughter of Nand Singh were also heirs of deceased Nand Singh. The plaintiffs have only 1/2 share in the properties left by Nand Singh and they were living under the guardianship of their mother Chhatra Kanwar in the capacity of members of joint Hindu family and have no separate right in the properties. They live with their mother who was 'karta' of joint Hindu family and in their presence and with their consent for legal necessity the land had been sold for Rs. 7,000/- by registered sale deed. This was done because Chhatra Kanwar needed money for the education and maintenance of plaintiffs and for paying the debts of deceased Nand Singh. The sale was not collusive but was genuine and with consideration and Chhatra Kanwar had right to sell the land. In the additional pleas, it was also alleged that the sale was made for the legal requirement of the family. The amount of Rs. 7,000/- as consideration had been paid to Chhatra Kanwar mother and guardian of plaintiffs and the plaintiffs were not entitled to any relief without the return of the aforesaid amount.

4. Mst. Chhatra Kanwar, defendant No. 2 also filed a written statement and inter alia pleaded that she did not make any sale of disputed land in favour of Anand Singh. She neither took Rs. 7.000/-nor executed any sale deed on 20th Nov. 1959 nor got it registered on 25-4-1960. If Anand Singh had taken any fraudulent proceedings she had no knowledge about it. She had no right to sell any property of the plaintiffs and Anand Singh had no right to purchase the land without, sanction from a competent court. If such sale deed has been prepared by defendant No. 1, the same apart front being fictitious is also void. In the additional pleas, it was further pleaded that Anand Singh was in relation of her deceased husband and he told her that mutation had got to be done of agricultural land in favour of the plaintiffs. Anand Singh, therefore, asked her to put thumb impression on such application. She had pwt her thumb impression on a paper under an impression that it was an application. She was a 'pardanasin', uneducated lady of a village and did not understand worldly matters. If the defendant Anand Singh had got any sale deed prepared, it was done secretly and without independent advise to her. It was also pleaded that such documents had been prepared by practising fraud and by exercising undue influence and as such was void. A plea was also taken that registration of the sale deed made after 4 months of its execution was void and could not be acted upon.

5. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues:--

(1) Did the defendants out of collusion effect the sale of the plaintiff's land in favour of defendant No, 1?

(2) Is the sale unauthorised, illegal and void?

(3) Are the plaintiffs the only heirs of the khatedari land of their father Nand Singh deceased?

(4) Did defendant No. 2 sell the land to defendant No. 1 with the concurrence of the plaintiffs and for legal necessity?

(5) Are the other heirs of Nand Singh deceased necessary party in the suit?

(6) Is the suit of the plaintiffs time barred?

(7) Do the plaintiffs not live under the guardianship of Mathura Lal and so Ma-thura Lal wag not competent to file the present suit?

(8) Is the suit premature?

(9) Is the other property of Nand Singh deceased available to the plaintiffs which is more than half and no relief is admissible to the plaintiffs in the present suit?

(10) Did defendant No. 1 purchase the land from the mother and guardian of the plaintiffs with their consent and for their legal necessities after paying Rupees 7,000/- and so the plaintiffs are not entitled to the possession of the land without restoring the amount of Rupees 7.000/-?

(11) Did Chhatra Kanwar defendant neither receive Rs. 7,000/- nor execute and register the sale deed dated 20-11-1959?

(12) Did Anand Singh defendant No. 1 got the signatures of defendant No. 2 on the application by representing that the land was to be mutated and thus fraudulently got her thumb mark?

(13) Is the registration of the sale deed dated 20-11-1959 on 25-4-1960 illegal and so no title could pass under it and it was inoperative?

The trial court after recording the evidence of the parties, held that the sale in question was effected by defendant No. 2 in favour of defendant No, 1 for Rs. 7,000/- for the legal necessities of the joint family, its maintenance and for the betterment of the estate as recited in the sale deed Ex. 1. It was also held that there was no collusion between defendants Nos. 1 and 2 and Anand Singh defendant No. 1 had proved that he had purchased the land in question after making a payment of Rs. 7,000/- to defendant No. 2 in the presence of the Sub-Registrar. It was held under issue No. 3 that the plaintiffs were only heirs to the extent of 1/2 share in the khate-dari land of their father Shri Nand Singh. Issues Nos. 5, 7 and 8 were not pressed and as such were decided against the defendant No. 1. Under issue No. 6. It was held that the suit was within limitation. Under issue No. 9, it was held that it was not a crucial issue. The alienation by a manager for legal necessity was binding on the estate of the minors and so it was hardly of any consequence whether any property was left for the plaintiffs to the extent of their share or not. Issue Nos. 11' and 12 were decided against the defendant No. 2. Under issue No. 13, learned trial court held that defendant No. 2, the executants of document Ex. 1 cannot take advantage of his own fraudulent conduct of keeping the document with him after execution for more than 4 months and not presenting it for registration within the prescribed time. It was thus held that though the registration of the sale deed was in contravention of Section 23 of the Registration Act, but since it was due to the fraudulent conduct of defendant No. 2, Mst. Chhatra Kanwar (its executants), she would be precluded from taking advantage of her own conduct specially when the plaintiffs have not based their case on the basis of faulty registration. In view of the aforesaid findings given by the trial court, the plaintiffs' suit was dismissed.

6. Aggrieved against the judgment and decree of the trial court, the plaintiffs filed an appeal which came up for consideration before the learned Additional District Judge No. 3, Jaipur City, Jaipur. Learned Additional District Judge affirmed the decision of the trial court and dismissed the appeal. Hence this second appeal by the plaintiffs.

7. It was contended by Mr. Rastogi, learned counsel for the plaintiffs that issues Nos. 4 and 10 regarding legal necessity have been wrongly decided by the tower courts. It was contended that the burden of proving legal necessity was on Anand Singh vendee and there were number of circumstances proved on record, which proved beyond any manner of doubt that there was no legal necessity at all to sell the land. In this regard, it was pointed out that Mst. Chhatra Kanwar was an illiterate, 'pardanasin lady and there was no adult male member in the family to give an independent advice to her. No evidence has been produred to show that there were any debts left by deceased Nand Singh, which were to be paid. Though there is evidence of Anand Singh that Kanhaiya Lal and Phool Chand owed some money from deceased Nand Singh but they have not been produced nor any document has been produced to show that these persons were owing money from Nand Singh. In any case, it has not been proved that there was any necessity for the payment of such debts and there was no other alternative left except to sell the land. It was contended that the tower appellate court had wrongly arrived at the conclusion that the sale money out of Rs. 7,000 was utilised for the purchase of other agricultural land at Sirash. The sale deed Ex. A-l is of 26-6-61 in respect of agricultural land purchased at Sirash for Rs. 1950, but this money was paid out of the compensation money received by Chhatar Kanwar and the plaintiffs in lieu of abolition of their Jagir. It was also pointed out that no independent evidence was led to prove the execution of Ex. 1 and for the payment of the consideration. D.W. 4 and D.W. 5 produced in this regard being 'Hallias' of defendant No. 1 were highly interested witnesses. It was argued in the alternative that even if for arguments sake there was necessity to maintain the family, this could have been done by selling small portion of land and not 51 bighas and 48 biswas as done in the present case. Reliance has been placed on Ram Dayal v. Bhanwar Lal, AIR 1973 Raj 173 (FB), Shah Nanu Lal v. Hari Dass, ILR (1968) 18 Raj 969. Nirmal Singh v. Satnam, AIR 1960 Raj 313, Bithaldas v. Chandratan, AIR 1955 Raj 39, Birad Raj v. Dhingarmal, (1954) ILR 4 Raj 200.

8. On the other hand, it was contended by Mr. Tikku, learned counsel for respondent Anand Singh that the question about legal necessity was a question of fact and the same having been determined in his favour by both the tower courts, could not be interfered in second appeal. It was also contended that in the plaint the plaintiffs had not said a single word that the sale was made without legal necessity and the wily ground taken was that the sale was made without seeking permission from a competent court. In these circumstances, it is contended that there was no necessity at all to go into the question of legal necessity as such case was not pleaded at all in the plaint. It was further argued that apart from the oral evidence led by the defendant Anand Singh to prove legal necessity, there was ample corroboration about the legal necessity from the recitals made in Ex. 1. The case regarding collusion between Chhatra Kan-war and Anand Singh is not even supported by Chhatra Kan-war herself, on the contrary she had taken the plea that neither any sale deed was executed by her nor she was paid any consideration of Rs. 7,000. Such plea taken by Chhatra Kanwar had no legs to stand and was decided against her by both the courts below. In case of legal necessity, it was not necessary for the vendee to prove that there was any compulsion for selling the land and it was enough for the vendee to prove that he had made proper enquiries and the transaction was bona fide. Reliance is placed on Smt. Rani v. Smt. Santa Bala, AIR 1971 SC 1028. It was also argued that in a case of alienation of undivided interest in a property belonging to joint Hindu family by the mother as natural guardian, the provisions of Section 8 of the Hindu Minority and Guardianship Act, do not apply and as such there was no necessity to obtain any sanction from any court in case of such alienation. Reliance is placed on In re Krishnakant Manganlal, AIR 1961 Guj 68, Smt. Sugga Bai v. Hira Lal, AIR 1969 Madh Pra 32 and Sunamani Dei v. Babaji Das, AIR 1974 Orissa 184.

9. I have given my careful consideration to the arguments advanced by learned counsel for both the parties and have thoroughly perused the record. A perusal of the plaint shows that plaintiffs had nowhere alleged that the sale in question was made without legal necessity. The only allegation made in the plaint was that the plaintiffs after the death of their father had shifted to village Sirash from village Phulata. After the plaintiffs had come to Sirash, the defendants in collusion got the sale made in Rs. 7,000 on 20th November, 1959 and the same was got registered on 25-4-60 in Tehsil Aligarh. In para No. 4 of the plaint, it was alleged that the defendant No. 2 had no right to sell the land without seeking permission from a competent court as the land in question was in the khate-dari of deceased Nand Singh and belong to minor plaintiffs. The defendant No. 1 Anand Singh has however, in his written statement took the plea that the sale was made for the maintenance and education of the plaintiffs and to pay of the debts of deceased Nand Singh etc. It cannot be disputed that the burden to prove legal necessity lies on the defendant vendee, but at the same time, it is necessary for the plaintiffs who want to challenge such sell to at least allege in the plaint that such sale was without legal necessity. Pleadings in civil cases have an important consideration and it is well settled that no evidence can be tooked into in respect of a case, which is not made out in the pleadings. Be that as it may, in the present case, the defendant Anand Singh had taken the plea of legal necessity in his written statement and an issue was also framed and the parties have led evidence regarding legal necessity and as such the question has to be determined in the present case. The question of legal necessity is a question of fact and has to be determined on the facts and circumstance of each case, As regards the debts outstanding against Nand Singh deceased, I agree with the contention of Mr. Rastogi that no evidence has been led to prove the debts of Kanhaiya-lal and Phool Chand. Only P. W. 3, Shiv Raj Singh has proved his own debt of Rs. 200. Even he has not stated that this amount of Rs. 200/- was paid to him after the alleged sale. No document has been produced on record to show that any debt of Kanhaiyalal and Phool Chand was outstanding against deceased Nand Singh. Even Anand Singh D. W. 2 in examina-tion-in-chief made a bald statement that the land was sold for paying of the debts but did not give any details of such debts. He had not said that any amount out of Rs. 7000/- was paid to any creditor of deceased Nand Singh, Even in the cross-examination, he stated that when Nand Singh died then debts were outstanding against him but he did not know how much was the amount of debt. He stated in a casual manner that there were debts of Kanhaiyalal, Phool Chand and Thakur Padam Singh. From such evidence, it can-riot be proved at all that the land was sold in order to pay any debts outstanding against deceased Nand Singh. In a case where any immovable property of minor members of a joint Hindu family is sold by a natural guardian in order to pay off debts of the father of minor plaintiffs, it is not only necessary to prove convincingly the existence of such debts, but it has also to be proved that demands were made by the creditors and there was pressing need for the payment of such debts. In the present case, even the existence of the debts left by deceased Nand Singh is doubtful and there is no iota of evidence worth the name that any creditors were making demands or pressing for the payment of their debts. It was held in Sithaldas v. Chandratan (AIR 1955 Raj 39) (supra) that mere anti-cedency of the father's debts does not authorise a manager other than the father to alienate or burden the estate, There should be further circumstances to show that there was a necessity to pay up the father's debts and that necessity was of a type which entailed either a certain degree of pressure on the estate some danger to be averted or some benefit to be conferred or some other circumstance which would show that the alienation was eminently desirable or urgently called for, to ease the situation existing on the date of transfer.

10. Though it has been held that the sale could not be justified on the ground of payment of antecedent debts, but still there are other grounds taken by the defendant Anand Singh that it was made in order to impart education and maintenance of the plaintiffs. It is admitted by Smt. Chhatra Kanwar herself who had appeared as DW 1 that her husband Nand Singh had died in Smt. 2015 (1958). Nand Singh when he died left two sons and two daughters and Chhatra Kanwar herself. Out of the aforesaid four children, three were minors and one daughter Mool Kanwar had already been married. She admitted that the up-keep and maintenance and the responsibility of the entire house had fallen on her as she was the eldest member of the family. Nand Singh had only left Rs. 1,200 in cash at the time of his death. She was unable to tell as to how much amount was spent by her in a month. She however, admitted that the amount of Rs. 1,200 left by her husband was spent within a period of 1-2 years. After the said amount had been spent up, she used to maintain her livelihood by doing labour work. It has also been admitted that when Nand Singh died, he had left 200 bighas of land. She has also admitted that she was appearing in the courts for giving her statement in many other cases. She also admitted that she had purchased agricultural land at village Mehtabpura though she purchased this land out of the amount of compensation received by her and not by selling the land at Phuleta. She admitted the purchase of land at Mehtabpura about 5 years back for an amount of Rs. 1,950 and she was maintaining herself and her children from the income of such land. Though she stated that this land was purchased out of the amount of compensation money but she could not say as to in which year the amount of compensation was received by her. She vaguely stated that the amount of compensation was received 5 years back but admitted that she was not paid the amount of compensation in cash but was only given bonds. She further stated that she sold the bonds in order to purchase the land. It was within the knowledge of Chhatra Kanwar as to how much amount was received by her as compensation money and in what year and she purchased the land at Mahtabpura by selling the bonds. No evidence has been led by her except her bald statement in this regard and it cannot be believed from her statement that the amount of Rs. 1,950 was paid out of the compensation money. She has also admitted that she had herself shifted to Mahtabpura from village Phuleta. Though she stated that her children were living with Mathura Lal at Sirash and Mathuralal was maintaining them, but this story set up by Chhatra Kanwar cannot be believed. Mathura Lal is a Brahmin by caste and there is no valid reason why children of Chhatra Kanwar who is Rajput by caste would be maintained by Mathura Lal without any rhyme or reason. In the sale deed Ex. 1, there is a clear recital that Chhatar Kanwar the vendor was a 'Pardanasin' lady and there was no major member in the family to took after the agriculture. It was not possible to make proper arrangements for cultivating the land and toss was put In the cultivation and it was also necessary to give education to her children and to maintain them and as such she was in need of money. It was further mention-en that she was to pay of the debts left by her husband and the money was also needed to perform last rites of her deceased husband and after discharging of all the responsibilities the balance of the money can be utilised for the advantage and benefit of the family. It is thus proved from the evidence of Chhatra Kanwar herself and corroborated by recital in Ex. 1 that the money was needed for the maintenance of her own children and for their education and for the benefit of the family. This sale deed was registered on 25-4-60 and agricultural land for an amount of Rs. 1,950 was purchased vide sale deed Ex. Al on 26-6-61. According to the statement of Chhatra Kanwar, Nand Singh had left 200 bighas of land, out of which only 51' bighas and 14 biswas was sold at Phuleta and 25 bighas and 5 biswas of agricultural land was purchased at village Sirash by registered sale deed Ex. A-l dated 26-6-61 and in these circumstances, I see no reason to hold that the alleged transaction of sale was made without any legal necessity. The learned tower Appellate Court has also held that the sale in question was made for the maintenance of the plaintiffs and for the benefit of the family and this proved the legal necessity for making alienation.

11. I do not propose to discuss the rulings cited by Mr. Rastogi in detail as the principle enunciated in those cases that the burden to prove legal necessity lies on the vendee cannot be disputed. However, the question about legal necessity depends on the facts and circumstances of each case. I may also point out a special feature of this case as already mentioned above that there was no pleading at all in the plaint regarding want of legal necessity. In all the cases relied upon by Mr. Rastogi, there was a clear allegation in the plaint that the alienation were made without legal necessity. It was observed by their Lordships of the Supreme Court in Smt. Rani v. Smt. Santa Bala, (AIR 1971 SC 1028) (supra), as under:--

'(B) Hindu Law -- Joint family property -- Alienation -- Legal necessity -- Proof -- Recital in sale deed of legal necessity -- Evidentiary value.

Legal necessity does not mean actual compulsions, it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide 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. Recitals in a deed of legal necessity do not by themselves prove legal necessity. Tha 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.'

12. aS regards the question of taking permission from a competent court of law in this case, I am in agreement with the view taken in Sunamani Dei v. Babaji Das (AIR 1974 Orissa 184) that when the minor and his mother constitute a Hindu joint family, each with a moiety of undivided interest in any immoveable property belonging to the family, in the absence of the father, the mother as natural guardian, can alienate even the minor's half share in the immoveable property under the personal law. Section 8 of the Hindu Minority and Guardianship Act will not apply to such alienation. This view finds support from Smt. Suga Bai v. Hira Lal (AIR 1969 Madh Pra 32) (supra) referred to above. No other point was pressed by the learned counsel for the appellants,

13. In the result, this appeal fails and is dismissed. However, looking to the facts and circumstances of this case, that the plaintiffs were minor, the parties are left to bear their own costs.


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