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Madan Lal Vs. Smt. Kamla Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 713/1971
Judge
Reported in1982WLN(UC)1
AppellantMadan Lal
RespondentSmt. Kamla Devi and ors.
DispositionAppeal dismissed
Cases Referred & Nagayya v. Changenna
Excerpt:
.....by defendant no. 1 found valid--sale by defendant no. 1 in favour of defendant no. 2 was without legal necessity--hell, no mistake of law is committed.;the adoption of the plaintiff by defendant no. 1 has been found to be valid and, therefore, the plaintiff madhavlal had right in the shop in dispute. as the sale in favour of defendant no 2 by defendant no. 1 was without legal necessity it was not binding. in arriving at the conclusion that the sale was not for legal necessity, no mistake of law was committed.;(b) civil procedure code - finding of fact--sale without legal necessity if based on appreciation of evidence--conclusion neither perverse or unreasonable--held, it cannot be disturbed in second appeal.;the sale was without legal necessity, is based on appreciation of evidence and..........(purchaser) is directed against the judgment and decree dated december 3, 1971 of the additional civil judge, udaipur, by which he affirmed the judgment and decree dated february 15, 1971 of the munsif, kanore.2. the plaintiff madhav lal, who died during the pendency of the appeal and whose legal representatives are respondents no. 1 to 8, instituted suit for declaration and injunction. the case of the plaintiff madhavlal was that there is a shop described in para 2 of the plaint situate at bhinder. this shop is the ancestral properly of the plaintiff. the plaintiff claimed that he was adopted by defendant no. 1 modilal. defendant no. 1 modilal has also died. the shop was sold by defendant no. 1 to defendant no. 2 madam lal on may 4, 1966 for a consideration of rs. 5000/-. the.....
Judgment:

S.K. Mal Lodha, J.

1. This appeal by defendant No. 2 Madanlal (purchaser) is directed against the judgment and decree dated December 3, 1971 of the Additional Civil Judge, Udaipur, by which he affirmed the judgment and decree dated February 15, 1971 of the Munsif, Kanore.

2. The plaintiff Madhav Lal, who died during the pendency of the appeal and whose legal representatives are respondents No. 1 to 8, instituted suit for declaration and injunction. The case of the plaintiff Madhavlal was that there is a shop described in para 2 of the plaint situate at Bhinder. This shop is the ancestral properly of the plaintiff. The plaintiff claimed that he was adopted by defendant No. 1 Modilal. Defendant No. 1 Modilal has also died. The shop was sold by defendant No. 1 to defendant No. 2 Madam Lal on May 4, 1966 for a consideration of Rs. 5000/-. The plaintiff asserted that the sale was without any legal necessity and without consideration. The shop was said to be in possession of defendant No. 3. Kalu as a tenant. Ors the basis of the sale-deed, Madan Lal instituted a suit for eviction against Kalu (defendant No. 3). It was prayed by the plaintiff that the sale-deed dated May 4, 1966 may be declared null and void and defendant No. 2 may he restrained from taking possession of the shop from defendant No. 3 Defendant No. 1 and 3 filed joint written statement. It was admitted by them that the plaintiff was adopted by the defendant No. 1, and that the disputed shop was ancestral one and the plaintiff has a legal right in it. The sale-deed executed by defendant No. 1 in favour of defendant No. 2 was also admitted. Some other pleas were raised by defendants No. 1 and 3, with which I am not concerned in this appeal. Defendant No. 2 filed a separate written statement denying all the allegations made by the plaintiff in the plaint. He denied that the plaintiff was adopted son of defendant No 1 or that he had any right in the disputed shop. It was also denied that the shop was ancestral property.

3. The learned Munsif framed the necessary issues. Issues No. 2 and 4, when translated into English, read as under:

(3) Whether the deceased Modilal had no legal necessity for selling the property?

(4) Whether the shop in question was sold by the deceased Modilal without consideration and if so, what is its effect?

The parties led the evidence. The learned Munsif, by his judgment dated 15-2-1971 declared that the sale-deed dated May 4, 196(sic) relating to shop in dispute is null and void. He also issued an injunction against defendant No. 2 restraining him from obtaining possession of the shop from defendant No. 3.

4. Aggrieved, defendant No.2 filed an appeal. Before the learned Additional Civil Judge, four points were raised. They related to the validity of the adoption of the plaintiff by defendant No.1, ancestral nature of the property, legal necessity & consideration. The learned Additional Civil Judge found (i) that the plaintiff was validly adopted by defendant No. 1; (ii) that the shop in dispute is ancestral property; (iii) that there was no legal necessity for the plaintiff to have sold the shop and (iv) that defendant No. 1 had received sale consideration of Rs. 5000/- from defendant No.2. The learned Additional Civil Judge opined that defendant No. 1 had no right to sell the ancestral property and that defendant No.2 is not the bona fide purchaser of the shop in dispute. In view of this, he dismissed the appeal and maintained the decree passed by the Munsiff on December 3, 1971. Hence this second appeal by defendant No.2 (purchaser).

5. I have heard Mr. M.C. Bhandari for the appellant and Mr. R.L. Maheshwari for the respondents.

6. The only contention raised by the learned Counsel for the appellant is that the learned Additional Civil Judge misdirected himself when he told that the legal necessity has not been proved. According to the learned Counsel for the appellant the legal necessity for the sale of the shop in dispute by defendant No. 1 to defendant No. 2 is proved. In this connection, learned Counsel for the appellant drew my attention to the statement of the plaintiff Madhavlal as PW t & the recital made in the sale-deed dated 4-5-1966 to the effect that the shop has been sold for maintenance and treatment of defendant No. 1 (vendor). I have read the statement of the plaintiff Madhavlal (PW 1). The learned Additional Civil Judge on consideration of Jetharam v. Hazarimal Birad Raj v. Dhinger Mal ILR 1954 Raj. 200 & Nagayya v. Changenna AIR 1957 AP 364 held that the recital in the sale-deed by itself is not sufficient for proving the legal necessity After considering the statements of PW4 Narain, PW 5 Girdharilal, PW6 Kalu Lal, PW7 Ratanlal and D2W 1 Madanlal and the circumstances emerging from the record the learned Addl. Civil Judge recorded a finding that the legal necessity for selling the shop in dispute by defendant No. 1 to defendant No. 2 has not been established and since it was a sale of the ancestral property without legal necessity, it is not binding on the plaintiff. The adoption of the plaintiff by defendant No. 1 has been found to be valid and, therefore, the plaintiff Madhavlal & right in the shop in dispute. As the sale in favour of defendant No. 2 by defendant No. 1 was without legal necessity it was not binding. In arriving at the conclusion that I he sale was not for legal necessity, no mistake of law was committed by the learned Additional Civil Judge. The conclusion that the sale was without legal necessity, is based on appreciation of evidence and that conclusion cannot be said to be perverse or that no reasonable man could come to that conclusion. As in ibis case nothing was shown to re as to how this finding is viti(sic)ted on account of any substantial error of law or of procedure, lam opinion, that this is binding on me in second appeal, as ordinarily the question of legal necessity for alienation of a property is question of fact. The finding on the question of legal necessity recorded by the learned Additional Civil Judge cannot be disturbed in the second appeal.

7. As the only contantion raised by the learned Counsel for the appellant has failed, the appeal deserves to be dismissed.

8. The result is that there is no force in this appeal and it is, accordingly, dismissed with costs.


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