HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.484 of 2010 ===================================================== Mukhlal Pandit, Son of Late Jai Govind Pandit. Resident of Fouzadari, Police Station-Pirpainti, District- Bhagalpur.-----Respondent/Appellant. Versus 1. Amar Nath Tiwary, Son of Balram Tiwary, Resident of Pathal Khani, Police Station-Pirpainti, District-Bhagalpur- Appellant/Respondent. 2. Balram Tiwary, Son of Hari Prasad Tiwary, Resident of Pathal Khani, Police Station-Pirpainti, District-Bhagalpur. 3. Binod Tiwary, Son of Balram Tiwary. 4. Rakesh Tiwary, Son of Balram Tiwary. Both Resident of Resident of pathal Khani, Police Statio n-Pirpainti, District-Bhagalpur- ---------------------Respondents/Respondents.
Legal Reasoning
and for the benefit of the family. In such a case it is well settled by now that the burden of proof lies on the purchaser to show that the sale in question has been made for legal necessity and for the 5 Patna High Court SA No.484 of 2010 (9) dt.24-01-2013 5 / 6 benefit of the family and mere mention of the said fact in the deed itself will not be conclusive in case of denial of the said fact by the plaintiff. In absence of the proof of the said fact by cogent evidence the sale will not bind the interest of the other coparceners. In the present case the appellate court has come to the categorical finding that the defendant purchaser has failed to establish the existence of legal necessity for the execution of the sale deed and except the statement in the written statement and its corroboration by the defendant purchaser himself in his deposition no other evidence has been adduced to establish the same. In that view of the matter, the finding by the appellate court that the sale would not be binding upon the other coparceners and would be valid only against the interest of the vendor Balram Tiwary cannot be interfered with. It is also admitted position that the other defendants who are also coparceners have not appeared to contest the claim of the plaintiff and in this view of the matter the plea of bar of the suit for partial partition cannot be sustained when it has been raised by a stranger to the joint family. The suit property is admittedly a joint family property and in presence of Balram Tiwary as defendant in the suit, his daughters cannot be said to be necessary party. The decision relied upon by the appellant in the facts and circumstances of the case is not applicable to the facts of 6 Patna High Court SA No.484 of 2010 (9) dt.24-01-2013 6 / 6 this case.
Arguments
====================================================== Appearance : For the Appellant/s : Mr. Uday Chand Prasad For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 9 24-01-2013 Heard the learned counsel appearing on behalf of the appellant in support of this appeal. 2. The defendant no.2-purcahser is the appellant in this appeal assailing the judgment and decree of reversal by which the dismissal of suit has been set aside. 3. The undisputed facts between the parties are that the suit property was the joint family property of Balram Tiwary and his sons out of whom one son Amar Nath Tiwary was the plaintiff in the suit and Balram Tiwary and his two sons Binod Tiwary and Rakesh Tiwary were impleaded as defendants besides the present 2 Patna High Court SA No.484 of 2010 (9) dt.24-01-2013 2 / 6 appellant who was purchaser of the suit properties. The case of the plaintiff is that the suit properties have been wrongly sold by his father Balram Tiwary in favour of the defendant no.2 (appellant in the present appeal) and the said sale deed was only a fictitious sale deed with a condition that the sold land would be returned back to Balram Tiwary when the sale money would be refunded back. It is further case of the plaintiff that Balram Tiwary refunded the money back to the defendant no.2 Mukhlal Pandit but he did not return back the land. The plaintiff has specifically pleaded that the father Balram Tiwary had not taken money from Mukhlal Pandit for the benefit of the family, and therefore, the interest of the plaintiff and his brothers would not be affected by the said sale. The relief, therefore, has been prayed for declaration that the sale deed in question will not bind the plaintiff and his two brothers and decree for partition be passed for 3 shares of the plaintiff and his two brothers, and 1 share to the defendant nos. 1 and 2. 4. The defendant no.2 alone contested the suit by stating that the sale deed had been executed by Balram Tiwary as Karta and representative of his family for legal necessity and for the benefit of the family, and therefore, the suit for the relief as prayed by the plaintiff cannot be granted. 5. The trial court dismissed the suit. The appellate 3 Patna High Court SA No.484 of 2010 (9) dt.24-01-2013 3 / 6 court on reappraisal of evidence has come to the finding that the defendant no.2 Mukhlal Pandit could not establish that the sale was made by Balram Tiwary for legal necessity and for the benefit of the family, and on the basis of this finding the appellate court has come to the conclusion that the sale deed in question would be effective to the extent of the share of Mukhlal Pandit alone, accordingly, the appellate court decreed the suit allowing the plaintiff to have 1/4th share in the suit property and further allowing the defendant no.1 Balram Tiwary and the defendant no.2 to have 1/4th share together. 6. Learned counsel appearing on behalf of the appellant in this appeal has firstly submitted that admittedly Balram Tiwary is joint with his sons and the property sold by him to the Mukhlal Pandit by sale deed is joint family property. It has been further urged that in the sale deed it has been specifically mentioned that the sale was being made for meeting the domestic expenses and this fact has also been reiterated by the appellant in his deposition. On this basis, it has been canvassed by the learned counsel that the legal necessity is fully proved, and therefore, the suit property could not be available for partition as the same has become the exclusive property of the appellant. It has been next submitted by the learned counsel that it has come in evidence that 4 Patna High Court SA No.484 of 2010 (9) dt.24-01-2013 4 / 6 the other properties of the family have been sold by Balram Tiwary but those sales have not been assailed at any time. It has been thus contended that the sale deed in favour of the appellant be also accepted to be for legal necessity and for benefit of the family. Learned counsel has also pointed out that the suit filed by the plaintiff is bad for partial partition as the other properties of the family have not been included as suit properties. The reliance was placed by the learned counsel on the decision reported in AIR1992 Calcutta 223. It has been next submitted that the suit filed by the plaintiff is also bad for non-joinder of the parties because the 5 daughters of Balram Tiwary have not been impleaded as parties in the suit for partition. 7. After considering the submissions of the learned counsel for the appellant and on perusal of the judgments of both the courts below, it is manifest that the suit property has been purchased by the defendant-appellant from Balram Tiwary who is admittedly father and Karta of the family. The plaintiff has not denied the execution of the sale deed but has chosen to avoid the same on the ground that the sale was not made for legal necessity
Decision
8. In the result I find that no substantial question of law arising for consideration in this appeal, which is, accordingly dismissed. Nitesh/- (V. Nath, J)