High Court

Legal Reasoning

{1} SA 716.99R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 716 OF 19991.Balaji S/o. Shivaji Phawade,Age 22 years, Occ. Agriculture,2.Ajit S/o. Shivaji Phawade,Age 20 years, Occ. Agriculture,3.Sujit S/o. Shivaji Phawade,Age 18 years, Occ. Agriculture,4.Sow Rukhminibai w/o. Shivaji Phawade,Age 38 years, Occ. Household,All R/o. Nargarsoga, Taluka Ausa,District Latur... APPELLANTSVERSUS1.Shivaji S/o. Bajirao Phawade,Age 48 years, Occ. Agriculture,R/o. Nagarsoga, Taluka Ausa,District Latur.2.Namdeo Rajiba Phawade,since deceased through LRs2A Madhuri wd/o. Namdeo Phawade,Age 71 years, Occ. Household,2B Sachin s/o. Namdeo Phawade,Age 46 yeears, Occ. Agri. And Service.2C Navin s/o. Namdeo Phawade,Age 44 years, Occ. Agri and Service.2D Nita w/o. Jayandra Pawar,Age 49 years, Occ. Housewife, {2} SA 716.99R.odtAll R/o. Nagarsona, Tq. Ausa,Dist. Latur... Respondents.Mr. Yuvraj Kakade, Advocate h/f. Mr. V.V. Patil, Advocate for appellant,Mr. B.N. Patil, Advocate for respondent No.2. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 11TH MARCH, 2025. PRONOUNCED ON : 8TH MAY, 2025. JUDGMENT:-1.The appellant (original plaintiffs) impugn the judgment anddecree dated 30.09.1998 passed by the District Judge, Latur, in CRA No.65 of 1994, thereby reversing the judgment and decree dated 24.11.1993passed by Civil Judge (J.D.), Ausa, in RCS No. 274 of 1987. [ For sake ofconvenience, parties are referred as per their original status in suit.)2.The plaintiffs instituted a suit seeking a decree ofcancellation of sale deed and declaration of ownership. It is theircontention that defendant No.1 is father of plaintiff Nos. 1 to 3 andhusband of plaintiff No.4. He is addicted to vices. The agricultural landbearing Survey No, 178/3 to the extent of 5 acres was received bydefendant No.1 in partion between himself and his mother and sisters.On 4.5.1979, he executed sale deed in favour of defendant No.2 forconsideration of Rs. 4,000/-. It was a transaction without legal necessity.Similarly, defendant No.2 had agreed to reconvey the suit land todefendant on payment of Rs. 4,000/-. As such, there was oral agreementof re-conveyance. Therefore, the transaction in question was in the {3} SA 716.99R.odtnature of Vishwas Bainama. Plaintiffs, therefore, prayed for cancellationof sale deed and declaration that they are owners and possessors of suitproperty.3.The plaintiffs claim was refuted by defendant No.2 i.e.purchaser, contending that suit in present form is not maintainable.Defendant No.1 sold out the property and utilized the consideration alsofor purchase of another land. The transaction was bonafide and forbenefit of family. Plaintiffs are proxy. The defendant No.1, has in factfiled the suit in the name of plaintiffs. The suit is collusive.4.The trial court framed issues, based on pleadings of theparties, recorded evidence and finally accepted plaintiffs claim andcancelled the sale deed dated 4.5.1999 and plaintiffs were directed todeposit an amount of Rs. 4,000/- in the court within a period of onemonth.5.Aggrieved defendant No.2 filed Regular Civil Appeal No. 65of 1994 before the District Judge at Latur, who, after evaluation ofevidence and considering the reasoning adopted by trial court, reversedthe decree and dismissed the suit.6.Present second appeal is instituted by aggrieved plaintiffs. Itwas placed for admission before this Court on 9.10.2002. Accordingly, itis admitted on following substantial questions of law :-“1. Whether the lower appellate court, without framing pointfor determination on the point of legal necessity can decidequestion of legal necessity and interfered in the decree {4} SA 716.99R.odtpassed by the trial court;2.When the purchaser has not pleaded and proved thatthere was in fact a legal necessity for defendant No.1 to sellthe property, whether the appellate court can record findingin absence of pleadings.7.The learned advocates appearing for respective parties,advanced their submissions in pursuance to the aforesaid substantialquestions of law. Mr. Y.V. Kakade, learned advocate appearing forappellant would submit that the sale deed was challenged by theplaintiffs firstly on the ground that it sans legal necessity, secondly, it wasnot a transaction of out and out sale and thirdly, there was oralagreement of re-conveyance. The trial court accepted the case ofplaintiffs holding that transaction was not legal, as it sans legal necessity.Mr. Kakade would submit that the appellate court reversed the wellreasoned judgment and decree without framing necessary point fordetermination as to legal necessity, on which point trial court hadcancelled the sale deed. He would further submit that in absence of pointfor determination, the appellate court could ot have reversed the decree.He would further urge that there is no pleading in written statement filedby defendant no.2 as to existence of legal necessity to defendant No.1. Insupport of his submissions, Mr. Kakade, relies upon the folowingjudgments :-1. Malluru Mallappa Through LRs vs. Kuruvathappa and others, CivilAppeal No. 1486 of 2020 dated 12th February, 2020.2. Vinod Kumar vs. Gangadhar, (2015)1 SCC 391.3. B.V. Nagesh and others vs. H.V. Srrenivasa Murthy. Civil Appeal No.8259 of 2010 dated 24.09.2010. {5} SA 716.99R.odt8.Per contra, Mr. B.N. Patil, learned advocate for respondentNo.2 submits that the present suit is filed seeking relief of cancellation ofsale deed. The plaintiffs have not claimed relief of partition and separatepossession. The cancellation of sale deed has been sought on the groundthat defendant No.1/Karta had no legal necessity to alienate suit landand secondly, transaction was towards security, or at the most, it was aconditional sale. Mr. Patil would submit that the defendant No.2 not onlypleaded about existence of legal necessity but also led clear evidence thatdefendant No.1 utilized sale consideration received under impugned saletransaction for purchase of another land, from one Kashinath LimbajiRaut. According to Mr. Patil, present suit is apparently collusive,instituted by defendant No.1 in the name of plaintiffs. Mr. Patil wouldfurther submit that unless it is shown that prejudice caused to plaintiffsbecause of non framing of a specific point for consideration by appellatecourt, the well reasoned judgment cannot be disturbed. In support ofcontentions, Mr. Patil relies upon the following judgments :1.Santosh Hazari vs. Purushottam Tiwari 2001(2) Mh.L.J.786.2.Nedunuri Kameshwaramma vs. Sampatil Subba Rao reported inAIR 1963 SC 884.3.Mohd. Ahmed vs. Karamat Hussain and others 2016 SCC on lineAll 2926.4.Mrugendra Indravadan Mehta and others Vs. AhmedabadMunicipal Corporation 2024 SCC online 849.5. Vasantha through LRs vs. Rajalakshmi @ Rajaram through LRS.(2024) 5 SCC 282. {6} SA 716.99R.odt9.Having considered the submissions advanced, and thesubstantial questions of law as framed, the first and foremost issue thatrequires consideration in this second appeal is, whether the appellatecourt could have delve into the issue of legal necessity without framingspecif point for consideration.10.It could be observed that, suit is filed for cancellation of saledeed and not for partition and separate possession on the basis of right ofplaintiffs in coparcenary property. It is true that plaintiffs haveincorporated the plea that sale deed was without legal necessity andtherefore, trial court has accordingly rendered its finding; the appellatecourt found that the suit in such a form would not be maintainable. Ifplaintiffs wanted to seek relief as regards to their right in ancestralproperty, it was obligatory for them to seek declaration that sale deed isnot binding upon them to the extent of their share. Even alternative pleahas been raised by plaintiffs that there was oral agreement of re-conveyance. They could have sought enforcement of such agreement ofre-conveyance on refund of consideration amount.11.In this background, the appellate court framed first point forconsideration, as to whether the suit in present form is maintainable andrecorded negative finding. Secondly, appellate court has recordedelaborate reasons while declining to accept the plaintiff’s case that suchtransaction was without legal necessity. It is apparent that suittransaction is dated 4.5.1979 and within a period of ten days, i.e. on15.3.1979, defendant No.1 purchased another land from one Kashinathfor a consideration of Rs. 3,000/-. It is apparent that considerationamount received under sale deed dated 4.5.1979 was utilized for {7} SA 716.99R.odtpurchasing another land. Defendant No.2 in his deposition explainedthat defendant No.1 had expressed his wish to purchase land fromKashinath, which was sold to him by his grandfather. Therefore, it isdifficult to hold that transaction in question was without legal necessityor it was made by defendant No.1 for satisfying the vices. The appellatecourt has rightly observed that the defendant No.1 neither stepped intothe witness box nor put up his defence. Entire sale transaction is soughtto he challenged by plaintiffs without seeking relief of partition andseparate possession to the extent of their share. In this background,there is every reason to accept the defence put forth by defendant No.2that this is a collusive suit instituted in the name of plaintiffs bydefendant No.1 for cancellation of sale deed. It can be observed that saletransaction would be binding against share of defendant No.1, even if itis held to be without legal necessity. Hence, relief of cancellation of salecannot be granted. In this context, reference can be given to thejudgment of this Court in the matter of Shridhar Bajirao Pawar vs.Bajirao Dhondiba Pawar reported in 2016(6) ALL M.R. 280.12.In this background, merely because specific point forconsideration was not framed, the judgment delivered by the appellatecourt cannot be vitiated. Learned advocates appearing for respectiveparties appears to have elaborately advanced their submissions beforeappellate court on point of legal necessity. The appellate court has alsorecorded adequate reasons while declining to accept contention ofplaintiffs. The reasoning recorded by the appellate court depictsconscious application of mind. The trial court has accepted plaintiffs caseobserving that evidence as to legal necessity is insufficient. However,important evidence in form of sale deed in respect of purchase of land by {8} SA 716.99R.odtdefendant No.1 within ten days after impugned transaction was ignored.13.So far as another contention of plaintiff as to independentagreement of re-conveyance, apparently, trial court has not specificallyframed issue in that regard nor plaintiffs established existence of any oralagreement independent of contents of sale deed. Even they failed toshow their readiness or willingness to act upon such oral agreement. Thetrial court predominantly granted relief of cancellation of sale deed onthe ground that transaction in question was without legal necessity andtherefore, it is declared as invalid. Therefore, even on second count,plaintiffs failed to establish their case by leading cogent and reliableevidence.14.The second question of law is framed under the premise thatdefendant No.1 has not pleaded about legal necessity, however, factremains that he has specifically denied contention of the plaintiffs thatsale deed was without legal necessity in para. 3. In para.6, he hasspecifically pleaded that sale transaction was for legal necessity andbenefit of family. However, suit has been instituted by defendant No.1 incollusion with plaintiffs. It is further pleaded that defendant No.1 is ateacher and pretended that he wanted to pay off certain loans and alsodeal with some family issues. Therefore, there is no foundation incontention that defendant No.2 failed to plead about legal necessity.14.As observed above, when evidence on record clearlydemonstrates that defendant No.1 utilized the consideration amountreceived out of transaction in question for purchase of another land, nofurther evidence was required to establish legal necessity. Plaintiffs’ {9} SA 716.99R.odtcontention that defendant No.1 addicted to vices and transaction wasmade by him for immoral purposes does not find support from theevidence on record. In that view of the matter, the judgment of theappellate court need not be disturbed. Hence, second appeal standsdismissed.[S.G. CHAPALGAONKAR, J] grt/-