IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 570 OF 2006
1. Shrikrishna S/o Panditrao
Bahirath,
Age : 26 years,
Occu. : Agriculture,
R/o Kausadi, Taluka : Jintur,
District : Parbhani
2. Baliram S/o Panditrao Bahirath,
Age : 28 years,
Occupation : Agriculutre,
R/o Kausadi, Taluka : Jintur,
District : Parbhani .. Appellants
(Ori. Deft. 1 and 2)
VERSUS
1. Angad S/o Shivaji Bahirath,
Aged : 11 years, Minor
2. Dnyandeo S/o Shivaji Bahirath,
Aged : 9 years, Minor
3. Seema D/o Shivaji Bahirath,
Aged : 15 years, Minor
All respondents (Original
Plaintiffs 1 to 3) are minors
and under guardianship of
real mother respondent no.4
i.e. Gangubai w/o Shivaji
Bahirath, R/o Kausadi,
Taluka : Jintur
4. Gangubai W/o Shivaji Bahirath,
Aged : 28 years,
Occupation : Agriculture and
Household,
R/o Kausadi, Taluka : Jintur,
District : Parbhani
5. Shivaji S/o Vithalrao Bahirath,
Aged : 32 years,
Occu.: Agriculture,
R/o Kausadi, Taluka : Jintur,
District : Parbhani .. Respondents
(Nos. 1 to 4 -original
Plaintiffs and No.5-
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original Deft. no.3)
Ms. Rajshree N. Reddy h/f. Mr. V.G. Sakolkar for the
Appellants
Mr. R.K. Ashtekar for the Respondents 1 to 4
CORAM : D.G. KARNIK, J.
DATE : 19.08.2008
ORAL JUDGMENT:-
1. This appeal is directed against the
judgment
District
and
Judge,
order dated 7.2.2006
Parbhani dismissing
passed
Regular
by the
Civil
Appeal no. 60 of 2003 filed by the appellants.
2. Respondents 1 and 2 are the sons and
respondent no.3 is unmarried daughter of respondent
no.5. Respondent no.4 is the wife of respondent no.5
and mother of respondents 1 to 3. By a sale deed
dated 8.3.1996 respondent no.5 sold the suit
agricultural land to the appellants. The respondents
1 to 4 filed a suit bearing Regular Civil Suit no.
124 of 2000 challenging the alienation, and for
partition of the suit property alleging that the suit
property was a joint family property of which the
respondent no.5 was only a karta and he had no right
to sell the suit property. Appellants contested the
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(3)
suit contending that the sale was made for legal
necessity. The trial Court decreed the suit holding
that the legal necessity was not proved and that the
respondents 1 to 4 had 1/5th share each in the
property and passed a decree for partition and
separate possession of their share. The appeal filed
by appellants-purchasers was dismissed by the lower
appellate Court. Aggrieved appellants are in appeal.
3. Learned counsel for the appellants
submitted that the sale of the suit property was for
legal necessity.
ig She submitted that there was a
recital in the sale deed that the sale was effected
for repayment of the loan of a bank. The trial Court
ought to have held that there was a legal necessity
for the sale. Mere recital in the sale deed which is
executed just few years prior to the suit about the
existence of legal necessity is not the proof of the
legal necessity. The recital of legal necessity in
the sale deed can at best be used to corroborate any
substantive evidence of legal necessity adduced by
the parties. The weight of the recitals in the sale
deed may increase as time passes and other evidence
of legal necessity vanishes in oblivion by passage of
time. But that is not the case here. For the
purpose of proving that the respondent no.5 was
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(4)
indebted to bank the appellants could have easily
examined an officer of the bank to prove the debt
and/or produced the extract of the loan account of
the respondent no.5 duly certified under the Banker’s
Books Evidence Act. None of these things was done.
The burden of proving the necessity was on the
appellants which they have failed to discharge. The
Courts have accordingly held that the appellants have
not proved the legal necessity. The said finding of
fact is a possible finding of fact based on
appreciation of evidence and not open for challenge
in the second appeal.
4. Learned counsel for the appellants then
submitted that the suit was not for partition of the
whole of the suit property inasmuch as the family
owned one more property which was sold by the
respondent in the year 1988 and that was not included
in the suit for partition. Respondent nos. 1 to 3
who are minors, were not borne in the year 1988 when
the previous alienation was made. They got share in
the joint family property on their birth. They had
no share in the property which was alienated prior to
their birth in the year 1988. Sale made in the year
1988 was made by respondent no.5 as sole surviving
coparcener and therefore respondents 1 to 4 have
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(5)
rightly not included that property in the suit for
partition. In the circumstances the contention that
as the properties sold by the respondent no.5 in the
year 1988 were not included in the suit, it was a
suit for partial partition and as such not
maintainable has no merit.
5. No other point was urged. No question of
law, much less a substantial question of law, arises
in this appeal. The appeal is accordingly dismissed.
(D.G. KARNIK),
JUDGE
arp/1988/570
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