A Sharma, Advocate)
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED Tms THE 29"" DAY OF 0CT0BEE.,.o2oQV1':0%'AA'1; ~
BEFORE
THE. HON'BLE MR. JUSTICE A.NA;NDEBY1§AREDi;Ey
REGULAR SECOND Atér-EAL VNQ.' 258EAoT:2o.o9" }
BETWEEN:
1. Gopal, A _ _«
Aged about 42 yéaros,-. '-
2. Gangargjii'
y€arS,_
3. Manj'z1n{afh:_; " 3 V
:"Ag'e'dA ainout y_e'ar$',
All are rgsadgng 3:7 f A
Be1avatI*12i,.._1.\/I3/vsote:_ "I 'a_11"11<.:T,v
M){'5Gf¢ Dist1i<:;.*' " ...Appe11ants
x "'\faeT1ksataswamy
-810 Sri. Peddaganaiah,
@ Ganga Boyce, Major,
2. Srinivasa
S/o Venkataswamy,
Major,
Both residents of
Belavatha, Mysore Taluk
Mysore District. ,_-.i-R7espo.ndents'~V'if-.,___ ii
(Respondents No.1 to 3 Served)
This Regular Second App.eaAlvis ’tiled under,_SeCtion 100
of Code of Civil Procedure, ‘.’£i9O8V, the judgment and
decree dated l l.’E 1.2008 p_asse.cllin:’ R.lA._l’~§O’;3Vl2/2004 on the
file of the HI Ad_ditiona]._District ct’; Se’s,sions— Judge, Mysore,
dismissing t_he-appeal. and_:’V.«:co.nifi:’mir1g the judgment and
decree date_dl-.,V28.’iT}..l997 passed in O.S’.’No.33l/ “E 990 on the
file ofthe in 1\at:ins’i’ti*.Mys;:;é. ‘
coming on for Hearing
this day, the courtfdeliyet*ed”t.he “following:
T . ,ij'{}}34GMENT
4;’ ” Heard ‘thellearriedl counsel for the appellants. The
. ‘respondeiitswho have been served and remain unrepresented.
_hel;’briet’ facts of the case are as fo11ows:~
Z ‘appellants and the second respondent herein are
2 ii the, sons of the first respondent. The third respondent is the
lgpurchaser of item no.1 of the suit schedule property. The
appellants had filed a suit against the respondents seeking
partition of the suit schedule properties, namely item.*t:o.l,
which was land measuring 2 acres 11 guntas in 1an.d4’l;e’ari:2g;”
Survey No.93, Block No.19; the adjoining landiV_ii:jieVasti:i’ing
acres l gunta in Block No.20 of land b_eairi?n§S.u.riVeyi .i
Block No. 19; the adjoining ~’:Qeasu1i.nig 2, acres
Block No.20 of survey;__No.93Vp,ta.tiiSelaiIathaiVill:ageV,JiMysore;
and item no.2 which ‘anoytheir bearing house
no.”/1 of the were entitled to
onewthird properties, as the properties
They also contended
that sialeiof a registered sale deed dated
29,;l’.’i979 executed respondents no} and 2 was not for a
.i “legai_Vineces’si.ty and it was also contended that the said
* respondents ‘oao no right to execute the sale deed and transfer
the tt.ights of the appellants and therefore, the suit for partition.
The third respondent, who was the purchaser,
contested the suit and set up a plea that the sale was indeed
for a legal necessity of the family and it would be binding on
the appellants. In this background, the trial couit framedithe
following issues namely,
I. .
‘i ‘(ii
Whether the plaintiffs prove the
29.1.1979 executed by
for legal necessi’:y”–..and 2 tithe
plaintiffs?
Whether thelllcouttl’fee’»l:paidie»lO’I1ithe plaint is not
Pf9~F’3F.?
the plaintiffs are barred by
the.i.jd.0cti’ihe of elstoppel}? V
Whether isbarred under Section 51 of the
‘l’ratisfer”of Prolphlerty Act?
‘ relief the plaintiffs are entitled to ‘.7
p the first substantial question of law insofar as
legal necessity of the family has
2 » ithe«..burden having been cast on the plaintiffs to prove that the
lgsale in question in favour of the third respondent was not for a
been taken up as a
substantial question of law, having regard to the fact that the
burden having been placed on the plaintiffs in the facts”–and
circumstances of the case, i.s opposed to the sett.1ed.:’_legal”
position as laid down by several judgments of. ”
as well as this court. The earliest d_veciS-ion?which.’has’pl’ace«dVr i
reliance on judgments ‘of”i_tl’-1e Privy’:
Radhakrishnadas and ;__arzr>rheAr.i’.ivs.’vgi_Ka[ttrcii%2,”ird,lR_if967 SC
5 74 and this legal position’ this court in
severai in the case of
Kishore 1997 KAR 1983. While
referring’itofityet the apex court in the
case rgant 1971 SC 1028, the Supreme
Court has heid as follows:
A ‘.’Legal necessity does not mean actual
ieornpulsion; it means pressure upon the estate
in law may be regarded as serious and
. ‘sufficient. The onus of proving legal necessity
A may be discharged by the alienee by proof of
3 actual necessity or by proof that he made
proper and bonafi.de 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 bv 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 T
attached to the recitals varies according to’V.the .
circurnstances.”
4. In View of the settled legal authority. ii
been framed by the trial court placingatheii*bi11’de1ihim;-sr._ytheve_’i
plaintiff to establish that the
required the plaintiffs toyprovei.t–lie. iwlieireasi the law
is well settled that the cast on the
alienee to Eestablish indeed for legal
necessity. question of law
of the appellants.
Insofariiasii the question of law that is
souigiht to be namely, whether the property in Block
.A No.93 could be held to be the self acquired
“property the first respondent without there being any
pleading or evidence in that regard and whether such a
V.dye.c’l;aration could have been made by the trial court as well
Hlas the first appellate court also is concerned, this again would
have to be answered in favour of the appellants as in the
absence of pleadings or evidence, the court was wifliout
jurisdiction in having arrived at a finding of fact whic-hp”‘
have no basis. This would suffice to al1ow…theu.appea.i ”
favour of the appellant and to remand t-hefinatterfforia’fresh, a
consideration on these issttesi_a–1_one,iiinarneiy,
court was in error in framing blirden on
the plaintiffs to prove necessity, when
the law reqLti.re*d:VVthat whom burden
ought to in the absence of
any tenable for the courts
be1owitc*.,have item no.1 of the suit property was
the gself.acquiredjppropeirty of the first respondent.
_ “AbCo’rdi1igiy, the appeal is allowed. The judgment and
‘decree iiappeilate court as wet} as the trial court are set
A aside’. v.v_’_ii’:r1e matter is remanded to the trial court to refrarne the
i fissttes, in terms as aforesaid and to dispose of the same in
-“accordance with law, after affording opportunity to the parties
to tender evidence, if any, on the reframed issues.
RV
The appeal stands disposed of accordingly.