Bombay High Court
Case Details
2025:BHC-AUG:15997 1269.94SA+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.SECOND APPEAL NO. 269 OF 1994 1.Dharmaraj S/o Rambhau Chikne age : 24 years, Occ : agriculture, 2.Dnyandeo S/o Nivrutti Chikneage : 37 years, Occ : agriculture, Both r/o Gangawadi, Tahat Talwada, Georai, Dist. Beed. ..APPELLANTS -VERSUS-1.Asaram s/o Kashinath Jadhav age : 11 years, u/g Rambhau Bapurao Bhillare, r/o Antarwali, Tal. Ambad, Dist. Jalna. 2.Motiram s/o Kashinath Jadhav age : 9 years, u/g of Rambhau S/o Bapurao Bhillare, age : 60 years, r/o Antarwali, Tal. Ambad, Dist. Jalna. 3.Kashinath s/o Tukaram Jadhav age : 40 yeas, Occ : agriculture, r/o Gangawadi Tahat Talwada, Tal. Georai, Dist. Beed (died L.Rs.) Savitrabai d/o Kashinath Jahdav age : 34 years, occupation and r/o as above. 4.Shantabai w/o Kashinath Jadhav age : 30 years, occupation and r/o as above (Deleted as per Court's order dated 01.04.2022) 5.Asraji s/o Abaji Khade, age 35 years, occ : agriculture, r/o Savargaon Ghat Tal. Patoda, Dist. Beed, at present Chavanwadi Tahat Talwada, Tal. Georai, Dist. Beed 6.Mahadeo s/o Shankar Khade, age : 12 years, u/g of Paternal uncle, defendant no.5/ Asraji Abadi Khade, occ : and r/o as above
Legal Reasoning
2269.94SA+.odt(Appeal dismissed against Respondent Nos.5 and 6 as per Additional Registrar order dated 07.10.1998)...RESPONDENTS ...Advocate for appellants : Mr. M.M. Patil Beedkar Advocate for Respondent Nos.1, 2 and 3A : Ms.Rekha Chaudhari h/fMr. S. S. Chaudhari ...WITH SECOND APPEAL NO. 271 OF 1994 1.Asaraji S/o Abaji Khade Age : 53 years, Occ : Agri., R/o Savargaonhut, Tal. Patoda, Dist. Beed, at present Chavanwadi, Tahat. Talwada, Tq. Georai, Dist. beed. 2.Mahadeo S/o Shankar Khade Age : 30 years, Occ : Agri., R/o As above. ..APPELLANTS -VERSUS- 1.Asaram s/o Kashinath Jadhav age : 29 years, Occ : Agril, R/o Antarwali, Tal. Ambad, Dist. Jalna. 2.Motiram s/o Kashinath Jadhav age : 27 years, Occ : Agril., R/o As above. 3.Kashinath s/o Tukaram Jadhav Since died through L.Rs. 3A.Savitrabai W/o Kashinath Jadhav Age : 52 years, Occ : Household, R/o Gangawadi, Tahat Talwada, Tal. Georai, District Beed. 3269.94SA+.odt4.Shantabai w/o Kashinath Jadhav age : 48 years, occu : Household R/o As above. 5.Dharmaraj S/o Kashinath Jadhav Age : 42 years, Occ : Agri., R/o As above 6.Dnyandeo S/o Nivrutti Chikneage : 52 years, Occ : Household, R/o As above. ..RESPONDENTS...Advocate for appellants : Mr. S.S. Thombre Advocate for Respondent Nos.1, 2, 3A and 4 : Ms.Rekha Chaudhari h/fMr. S. S. Chaudhari Advocate for respondent nos.5 and 6 : Mr. M.M. Patil Beedkar …CORAM :ROHIT W. JOSHI, J. RESERVED ON : 18.03.2025PRONOUNCED ON : 25.06.2025PJUDGMENT :1.Both these appeals arise out of the same Civil Suit, beingRegular Civil Suit No.865/1980, filed by respondent nos.1 and 2. Theappellants in Second Appeal No. 269/1994 are original defendant nos.3and 4 and appellants in Second Appeal No.271/1994 are defendantnos.5 and 6. The parties will be hereinafter referred to as “plaintiffs”and “defendants” in the body of the judgment. 2.The plaintiffs had filed suit for partition and separatepossession with respect to suit properties comprising of agricultural 4269.94SA+.odtlands and a house property. The plaintiffs were minors when the suitwas filed. Defendant Nos.1 and 2 are father and mother respectively ofthe plaintiffs. The suit was filed by the plaintiffs through one of therelatives, who acted as their guardian. After filing of the suit, maternalgrand-father of the plaintiffs acted as their guardian for the purpose ofsuit. 3.The contention of the plaintiffs in the civil suit was thattheir father, defendant no.1 was addicted to vices. He was not doingany work. As regards mother, the allegation is that she was also notdoing any work. The plaintiffs alleged that their parents were lazypersons and their expenses were beyond their resources. It is allegedthat in such circumstances, the father alienated the suit propertieswhich are Joint Hindu Properties without legal necessity. The plaintiffs,therefore, claimed that the transactions with respect to suit propertyentered into by their father were not binding on them. The learned trialcourt dismissed the suit holding that defendant no.1/father of plaintiffswas Karta of the family and that the suit properties were alienated forlegal necessity and to discharge unpaid debts. The plaintiffs preferredappeal challenging the said decree passed by the learned trial courtdismissing their suit. The learned first appellate court has allowed theappeal holding that defendant nos.3 to 6 have failed to prove legalnecessity. Apart from this, it is also held that the alienations were bad in 5269.94SA+.odtview of the Maharashtra Prevention of Fragmentation andConsolidation of Holdings Act, 1947 (hereinafter referred to as“Fragmentation Act”) and the Maharashtra Resettlement of ProjectDisplaced Persons Act, 1976 (hereinafter referred to as “ProjectDisplaced Persons Act"). 4.As mentioned above, according to the plaintiffs, the suitproperties were their ancestral properties. Defendant No.1 hasalienated the suit properties in favour of defendant nos.3 to 6, exceptthe house property. The contention of the plaintiffs is that the suitproperties are alienated without legal necessity and are therefore notbinding on them with respect to their shares. It is alleged thatdefendant no.1 was addicted to vices and taking advantage of the saidsituation, defendant nos.3 to 6 have entered into transaction withdefendant no.1. As regards defendant no.4, it is stated that he haspurchased the land bearing survey no.95/A admeasuring 9 acres 15gunthas for a consideration of Rs.9,000/-, vide sale deed dated04.06.1975. It is alleged that this consideration is not paid. As regards Survey No.94/A2, it is stated that defendantno.3 has allegedly entered into an oral agreement of sale with respect 6269.94SA+.odtto this property with defendant no.1 and on the basis of the saidalleged agreement, he had fraudulently obtained a compromise decreewith respect to the said property on 08.04.1978 in Regular Civil SuitNo.271/1978. As regards the suit property bearing survey no.267/C-2admeasuring 3 Acres 37 Gunthas and survey no.270/A-2 admeasuring3 Acres 30 Gunthas, the plaintiffs have stated that defendant nos.1 and2 had entered into an agreement of sale with respect to 2 Acres land insurvey no.267/C-2 and entire 3 Acres 30 Gunthas in survey no.270/A-2on 09.05.1980 with defendant nos.5 and 6. It is stated that defendantnos.5 and 6 obtained a compromise decree with respect to the saidproperty against defendant nos.1 and 2 on 29.09.1980 in Regular CivilSuit No.758/1980. Apart from this, there is one house property with respect towhich decree for partition is sought. This house property is notalienated. 5.As regards the compromise decree the plaintiffs haveclaimed that the compromise decrees are not binding on them. 6.Apart from the above, the plaintiffs also alleged that the 7269.94SA+.odttransactions were hit by provisions of Project Displaced Persons Act. 7.Defendant Nos.1 and 2, father and mother respectively ofthe plaintiffs, filed separate written statements of admission. They didnot appear in the suit thereafter. They did not cross-examine anywitnesses of the plaintiffs or other defendants and also did not leadevidence in the matter. 8.Defendant Nos.3 and 4 and defendant nos.5 and 6 filedtwo separate written statements disputing the claim. Defendant Nos.3and 4 denied the allegations that defendant no.1, father of plaintiffswas addicted to vices. They, however, stated that the suit propertieswere ancestral properties and defendant no.1 dealt with the sameacting as Karta for legal necessity. They stated that defendant no.1 wasin need of money for his household expenses and also for improvementover the agricultural lands owned by the family. It is also stated thatdefendant no.1 was also ill and was in need of money for his treatment.The allegation with respect to sale deed dated 04.06.1975 andagreement dated 08.04.1978 being without consideration is denied inthe written statement. 9.Defendant Nos.5 and 6 stated that defendant no.1 hadentered into a registered agreement of sale with respect to the aforesaid 8269.94SA+.odttwo survey numbers with them for consideration of Rs.13,000/-. It isstated that the entire consideration was paid by defendant nos.4 and 5to defendant no.1. They have averred that defendant no.1 was in needof money to liquidate bank loan, for his treatment and for makingimprovements of his agricultural lands. 10.Based on rival pleadings, the learned trial court framedissues in the matter. The plaintiffs’ maternal grand-father entered thewitness box on behalf of the plaintiffs. He is the sole witness examinedby the plaintiffs. He has stated that his son-in-law, defendant no.1 wasaddicted to vices and was not doing any work. He alleged thatdefendant nos.3 and 4, taking unfair advantage of the situationobtained a sale deed and consent decree with respect to two of the suitproperties without parting with consideration. As regards defendantnos.5 and 6, he alleged that they did not pay market value of the suitlands to the deceased defendant no.1. Based on these allegations, herequested that decree for partition be passed in favour of the plaintiffs. 11.The examination-in-chief of PW-1 is silent with respect tocompromise decree dated 29.09.1980 passed in Regular Civil SuitNo.758/1980 between defendant nos.5 and 6 as plaintiffs in the saidsuit and defendant nos.1 and 2 as defendants therein, as alsocompromise decree dated 26.06.1978 arrived at between defendant 9269.94SA+.odtno.4 as plaintiff and defendant no.1 as defendant in Regular Civil SuitNo.271/1978. 12.Defendant Nos.3 and 4 examined themselves, one EknathBorade, who acted as attesting witness in the sale deed dated04.06.1975 (Exhibit- 93) and one Bajirao Punde, Secretary, SevaSahakari Society, Gangawadi. Defendant Nos.5 and 6 examineddefendant no.5, one Balasaheb Joshi, a clerk in Land DevelopmentBank, Georai and one Bhaginath Sonawane, attesting witness to theagreement of sale dated 04.06.1975 and one Bansilal Bhutada,attesting witness to money receipt issued by defendant no.1. 13.After recording the evidence as aforesaid and hearingarguments in the matter, the learned trial court has dismissed the suitagainst defendant nos.3 to 6 holding that defendant no.1 had actedbonafide while alienating the suit properties for legal necessity of thefamily. The learned trial court has, however, passed decree for partitionand separate possession in favour of the plaintiffs with respect toresidential house. It will be pertinent to mention that defendant no.1(father) had expired while the civil suit was pending, and therefore,1/3rd share each is allotted by the learned trial court to the plaintiffsand defendant no.1 in the house property, which was not alienated. 10269.94SA+.odt14.Aggrieved by the aforesaid decree dismissing their suitagainst defendant nos.3 to 6, the plaintiffs preferred appeal, beingRegular Civil Appeal No.310/1987. The said appeal is allowed videjudgment and decree dated 08.07.1994 passed by the learned 2ndAdditional District Judge, Beed. The learned first appellate court hasheld that defendant nos.3 to 6 had failed to prove that defendant no.1had alienated the suit properties for legal necessity. The learned firstappellate court has observed that appropriate pleadings with respect tolegal necessity were not incorporated in the written statements filed bydefendant nos.3 and 4 and defendant nos.5 and 6 and that in absenceof any pleadings, the evidence brought on record by defendant nos.3 to6 with respect to legal necessity was liable to be discarded. Aggrievedby the said judgment passed by the learned first appellate court,defendant nos.3 and 4 and defendant nos.5 and 6 have filed twoseparate second appeals, being Second Appeal No.269/1994 and271/1994 respectively. 15.Second Appeal No.269/1994 is admitted on 17.08.1994 onthe following substantial questions of law :- "2.That the lower appellate court has erred inreversing the findings recorded by the trial court withrespect to legal necessity for alienating the property bythe defendant no.1. That, it ought to have been seen 11269.94SA+.odtthat the plaintiffs have failed to establish that thedefendant no.1 was addicted to liquor and has furtheralienated the property for his own benefit and not forlegal necessity. 3.That it ought to have been seen that the suit filedby the plaintiffs nos.1 and 2 through their grand fatheris not maintainable at all when their natural guardiani.e. the mother and father are alive and are parties tothe suit. That it ought to have been seen that the suititself filed by the minors through their grand father isnot maintainable and, moreover, the representation bygrand father is mala fide as the representations of theminors through their natural guardian was notconvenient and suitable for the plea raised by theplaintiff. 6.That it ought to have been seen that recitals inthe sale deed executed by the defendant no.1 makes itclear that there was legal necessity to alienate theproperty and as such those recitals ought to be takeninto consideration while considering the question oflegal necessity." Second Appeal No.271/1994 is admitted on 17.08.1994 onthe following substantial questions of law :- "II)It ought to have been held that the details of legalnecessity not be pleaded. Only substance of legal necessity 12269.94SA+.odtis sufficient pleading and the defendants to adduce theevidence, oral or documentary, to substantiate hispleadings in support of his pleadings of legal necessity. V)Whether it is correct to hold that Section 31 of theBombay Prevention of Fragmentation and Consolidation ofHoldings Act, 1947 envisages the disputed agreement ofsale as transfer and the said disputed agreement of salewith delivery of possession is hit by Section 31 of the saidAct ? VI)Whether it is correct to hold that the disputedagreement of sale in favour of Appellants by deceasedKashinath is a transfer within a meaning of Section 12A ofthe Maharashtra Resettlement of Project Displaced PersonsAct, 1976 and possession, if any, given on the basis of suchagreement of sale is not lawful ? 16.Thereafter, vide order dated 14th March, 2024, thefollowing two substantial questions of law came to be framed in boththe appeals:-"(a) Whether the learned First Appellate Court haswrongly observed that, the sale transactions executed infavour of the appellants in both the appeals by originaldefendant No.1 without any legal necessity? (b)Whether the learned First Appellate Court correctlyappreciated the provision under Section 31 of theMaharashtra Prevention of Fragmentation andConsolidation of Holdings Act, 1947 in respect oftransaction between the appellants and original defendantno.1 ? 13269.94SA+.odt17.Substantial questions of law (2) and (6) in Second AppealNo.269/1994, substantial questions of (II) in Second AppealNo.271/1994 and substantial questions of law (a) framed vide orderdated 14th March, 2024 pertain to legal necessity and as such can bedecided together. 18.Substantial question of law (V) in Second Appeal No.271/1994 :- Section 36A of the Fragmentation Act provides that civilcourt will not have jurisdiction to decide the matters, which thecompetent authority under the said Act is authorized to decide. Thecompetent authority under the said Act has authority to decide theissue as to whether a particular transaction is hit by the provisions ofthe said Act. In view of the above, jurisdiction of civil court is clearlybarred to decide the said issue. The findings by the learned firstappellate court that the transaction entered into by defendant no.1 withrespect to suit properties are hit by Section 31 of the Fragmentation Actare clearly without jurisdiction, and therefore, are liable to be quashed. 19.Apart form this, perusal of the plaint averments as alsodeposition of plaintiffs’ sole witness will demonstrate that the plaintiffshave not raised any contention with respect to provisions of the 14269.94SA+.odtFragmentation Act. The findings by the learned first appellate court inthis regard which are recorded in the absence of pleadings andevidence are completely unsustainable. The question of law, therefore,deserves to be answered in favour of the appellants. 20.Question of law (VI) in Second Appeal No.271/1994:- Although it is averred in the plaint that oral agreementbetween defendant no.1 and defendant no.4 as also agreement dated09.05.1980 between defendant no.1 and defendant nos.5 and 6 are badin view of the Project Displaced Persons Act, perusal of deposition ofplaintiffs’ sole witness will indicate that examination-in-chief does notspeak about the transactions being hit by the said Act. No documentaryevidence is produced before the learned trial court to demonstrate thatthe suit properties were covered by the said Act. During the course ofcross-examination of defendant no.5, questions were put to him in thisregard. He has denied suggestions that the suit properties were coveredby the provisions of the Project Displaced Persons Act. It also needs tobe mentioned that the agreement dated 09.05.1980 as also thecompromise decrees in favour of defendant nos.4 and defendant nos.5and 6 speak about some permission for registration of sale deeds withrespect to the suit properties, however, there is absolutely no clarity inthis regard. The evidence on record does not clarify as to permission 15269.94SA+.odtfrom which authority was required for registration of sale deeds.Likewise, it is also not clear as to permission was required under whichlaw. The findings by the learned first appellate court that the agreementdated 09.05.1980 between defendant no.1 and defendant nos.4 and 5and 08.04.1978 between defendant nos.1 and 4 are hit by theprovisions of the Project Displaced Persons Act and therefore,unsustainable having been recorded in the absence of any evidence inthis regard. 21.It will be pertinent to mention that in the appeals filed bythe respondents/plaintiffs, a sale deed dated 19.05.1988 with respectto a land at village Gangawadi, Tq. Georai, Dist. Beed is filed on record,vide application Exhibit-16 and list of document at Exhibit-17.Production of this sale deed dated 19.05.1988 is allowed by the learnedfirst appellate court, vide order dated 27.04.1993. Alongwith the saledeed, the order dated 13.05.1988 issued by the Collector is annexed.The certificate indicates that the Collector has granted permission fortransfer of same land in village Gangawadi under Section 12(4) of theProject Displaced Persons Act. The said document is filed for the firsttime before the learned first appellate court. Permission for leadingadditional evidence as per Order XLI Rule 27 is neither sought norgranted. Even otherwise, the order granting permission does not statethat the village is covered under the provisions of the Act from which 16269.94SA+.odtparticular date. Undisputedly, the first transaction i.e. sale deed withrespect to survey no.95/A is dated 04.06.1975, which is prior to thecommencement of the said Act. The other two transactions are dated08.04.1978 and 09.05.1980 i.e. around 10 years and 8 years prior todate of the said order granting permission. It cannot be said on thebasis of the said document dated 13.05.1988 that the suit propertiesforming subject matter of agreements dated 08.04.1978 and09.05.1980 were covered by the provisions of the Project DisplacedPersons Act as on the date of the said agreements. 22.Questions of law pertaining to legal necessity:- It will be appropriate to decide all questions pertaining tolegal necessity together. The learned first appellate court whilereversing the decree passed by the learned trial court has held that theburden of proving legal necessity was on defendant nos.3 to 6. It is heldby the learned first appellate court that the written statements ofdefendant nos.3 to 6 were lacking any pleadings with respect to legalnecessity. The evidence that is brought on record by defendant nos.3 to6 is discarded on the legal principle that evidence without pleadings isinadmissible. 23.It will, therefore, be necessary to recapitulate the pleadingsof defendant nos.3 to 6 as regards legal necessity. As stated above, 17269.94SA+.odtdefendant nos.3 and 4 and defendant nos.5 and 6 have filed twoseparate written statements. Defendant Nos.3 and 4 have stated thatdefendant no.1 was ill and was, therefore, in need of money fortreatment and also for household expenses. It is also stated thatdefendant no.1 needed money for making improvements over hisagricultural land. As mentioned above, defendant no.3 has purchasedthe suit property from defendant no.1 vide sale deed dated 04.06.1975for consideration of Rs.9,000/- and defendant no.4 has entered intoagreement of sale dated 08.04.1978 with respect to another propertyfor consideration of Rs.13,000/-. 24.As regards defendant nos.5 and 6, they have entered into aregistered agreement of sale dated 09.05.1980 with respect to two suitproperties for consideration of Rs.15,000/-. They have stated thatdefendant no.1 was in need of money for discharging bank loan and forhis treatment and also for making improvements of his agriculturalland. 25.As regards written statement of defendant nos.5 and 6,they have specifically stated that defendant no.1 needed money forliquidating bank loan. It will be pertinent to mention here thatdefendant nos.5 and 6 have examined witness from the bank, who hasdeposed that a loan of Rs.9,000/- was sanctioned in favour of 18269.94SA+.odtdefendant no.1 against mortgage of immovable property on23.03.1973. The witness has stated that sum of Rs.6,000/- wassanctioned for digging well and amount of Rs.3,000/- was sanctionedfor installation of motor. The witness states that sum of Rs.9,000/- wasoutstanding against defendant no.1 in the year 1980. In this regard, itneeds to be considered that according to defendant nos.5 and 6, theyhad entered into registered agreement of sale dated 09.05.1980 withdefendant no.1 for purchase of two suit properties for an amount ofRs.15,000/-. According to their case, a sum of Rs.7,000/- was paid onthe date of execution and registration of agreement i.e. on 09.05.1980and a further sum of Rs.3,000/- was paid on 26.06.1980. DefendantNo.1 has issued receipt accepting payment of the said amount.Defendant Nos.5 and 6 have also examined a witness to prove the saidreceipt. Defendant Nos.5 and 6 have contended that balance amount ofRs.5,000/- was paid on 29.09.1980 before the learned Civil Court whencompromise decree was recorded in Regular Civil Suit No.758/1980.This compromise decree is recorded between defendant no.5 and 6 anddefendant nos.1 and 2, parents of plaintiffs. Perusal of the deposition ofbank witness examined by defendant nos.5 and 6 will reveal that uptoyear 1979, sum of Rs.650/- only was paid towards the loan amount.The witness has further stated that amount of Rs.9,000/- includinginterest was outstanding against defendant no.1 in the year 1980. Thewitness had brought original register along with him in the Court on 19269.94SA+.odtthe date on which his deposition was recorded and has expressedreadiness to file extract of the same on record. In his cross-examination, the statement in the examination-in-chief that loanamount of Rs.9,000/- was claimed against mortgage of property andfurther that amount of Rs.9,000/- was outstanding in the year 1980 isnot disputed. Questions were put to this witness as regards reasons forwhich defendant no.1 – Kashinath could not repay the loan. Apart fromthis, a suggestion was given to the witness that Kashinath was addictedto liquor. The witness has obviously claimed ignorance with respect tothe same. It will be pertinent to mention that in his cross-examination,the witness has stated that the suit properties bearing survey nos.270/Aand 267/C-1 were mortgaged by defendant no.1 on 23.03.1973 withthe bank. 26.In this backdrop, it needs to be mentioned that the learnedfirst appellate court has recorded a finding that the evidence on recorddoes not suggest that defendant no.1 – Kashinath had not received theconsideration mentioned under the transactions. It is also necessary tostate that the learned first appellate court has also recorded a findingthat the plaintiffs had failed to establish that Kashinath was addicted tovices. Having arrived at such findings, the learned first appellate courthas held that pleadings with respect to legal necessity were not proper,and therefore, evidence brought on record by defendant nos.5 and 6 20269.94SA+.odtcould not be looked into. On this count, the transaction betweendefendant no.1 and defendant nos.5 and 6 is held by the learned firstappellate court to be without legal necessity. The relevant observationsof the learned first appellate court recorded in paragraph nos.23 and 24are reproduced hereinbelow :- "23.A number of witnesses are examined by therespondents to prove that the consideration was passed todeceased Kashinath. At the relevant time deceased Kashinath,his wife/respondent no.2 and appellants were living together.The respondent no.2 has denied to have received the amountof consideration by deceased Kashinath. It can be said that therespondent no.2 has colluded with deceased Kashinath. Bethat as it may, there are certain other witnesses examined bythe respondents namely Dharmaraj Exh.80, Dnyandeo Exh.81,Bhagirath Exh. 111 and Bansilal Exh.114. They have adducedspecific evidence that deceased Kashinath had actuallyreceived the amount of consideration as mentioned in thedocuments. The respondent no.2/wife of deceased Kashinathdid not enter into the witness box. The appellants and theirguardian were not present at the time of said transaction.Therefore, this evidence does not lead me to draw the onlyconclusion that the consideration was not passed to deceasedKashinath. 24.The appellants have submitted that deceased Kashinathwas addicted to liquor and gambling. They have adduced theevidence of their guardian Rambhau. On this point there isevidence of appellants and respondents. It is oath againstoath. Therefore, for the time being it can be said that the fact 21269.94SA+.odtof deceased Kashinath failing pray to lust of drinking andgambling is not proved." 27.The finding by the learned first appellate court withrespect to pleadings in the written statement of defendant nos.5 and 6is obviously incorrect. Defendant Nos.5 and 6 have specifically statedthat the transaction was entered into by defendant no.1 in order toliquidate the bank loan. Although, the name of the bank is notmentioned in the written statement, defendant nos.4 and 5 haveexamined witness from bank, which will clearly indicate that they wereaware about the bank from which defendant no.1 had taken loan. Thiswill also further indicate that they had made enquiry from defendantno.1 about the bank loan. Pleadings by defendant no.5 with respect tolegal necessity as regards outstanding bank loan are sufficient andadequate. 28.Defendant Nos.3 to 6 have also pleaded in their respectivewritten statements that defendant no.1 was ill, and therefore, in needof money for his treatment and also for his household expenses. Thedefendants have placed death certificate of defendant no.1 on record inwhich reasons for death is mentioned as suffering from tuberculosis. Itneeds to be mentioned that the name of ailment is not mentioned inthe written statement, however, it is stated that defendant no.1 was 22269.94SA+.odtindisposed, and therefore, was in need of money for his treatment andhousehold expenses. Defendant no.3 has stated in his examination-in-chief that defendant no.1 was suffering from tuberculosis. He has fileddeath certificate on record indicating the cause of death as tuberculosis.In the cross-examination, a suggestion is given to defendant no.3stating that his contention in this regard was incorrect and that thedeath certificate produced on record was false. Defendant No.5 has alsostated in the witness box that defendant no.1 was suffering fromtuberculosis. The statement made by him was also challenged in thecross-examination. As regards the witness PW-1, he did not stateanything about ailment of defendant no.1. In his cross-examinationwhen questions were put to him in this regard, he denied the same andstated that defendant no.1 was ill for a short period of one or two daysprior to his demise. Both the written statements also recite thatdefendant no.1 was in need of money for his family expenses. In thisregard, it also needs to be mentioned that even according to theplaintiffs, defendant nos.1 and 2 were not doing any work. They havealleged that defendant no.1 was addicted to vices and defendant no.2was a lazy woman who did not do any work. 29.Reference needs to be had to Order VI Rule 2 of the Codeof Civil Procedure. The Order VI Rule 2 provides that pleadings shallcontain statement in concise form of the material facts on which the 23269.94SA+.odtparty may place reliance for its claim or defence. The said provisionalso clarifies that evidence by which material facts are required to beproved need not be pleaded. The pleading by defendant nos.5 and 6are clear and precise with respect to bank loan. The pleading ofdefendant nos.3 to 6 are also adequate with respect to their claim thatdefendant no.1 was unwell, and therefore, was in need of money for histreatment and household expenses. Defendants have led evidence inthe light of these pleadings. The pleadings in the written statements aresufficient and adequate with respect to bank loan and need of moneyfor treatment and household expenses. 30.Purpose of pleadings is only to enable the other side tounderstand the case that is set up by the rival party, which he isrequired to meet during trial. It is well settled pleadings of partiesshould be always be interpreted with flexibility and not rigidity. All thatis required is parties should be aware about the case set up by eachother and they should not be taken by surprise during the course oftrial of the suit. The pleadings in the written statements are sufficient toput the plaintiffs to notice about the case with which the defendantnos.3 to 6 were defending their respective transactions. 31.As regards the ailment of defendant no.1, it needs to bementioned that defendant nos.3 to 6 are not family members of 24269.94SA+.odtplaintiffs and defendant nos.1 and 2. They had, however, produceddocumentary evidence on record showing the cause of death astuberculosis. In this regard, it also needs to be mentioned thatdefendant nos.1 and 2, parents of plaintiffs, who were supporting theplaintiffs did not enter the witness box. The maternal grand-father ofthe plaintiffs did not examine any witness to lead evidence to thecontrary to counter the evidence of defendant nos.3 to 6 regarding theailment of defendant no.1. It also needs to be mentioned that it is thecase of the plaintiffs that defendant no.1 was not doing any work. They,however, contend that he was not doing any work because he wasaddicted to vices. However, the plaintiffs did not examine anyindependent witness to prove the said allegations. The learned firstappellate court has also recorded a finding that the plaintiffs havefailed to prove that defendant no.1 was addicted to vices. Although, itcannot be expected of the plaintiffs to lead negative evidence to bringhome the point that defendant no.1 was not suffering fromtuberculosis, they could have certainly examined independent witnessesto throw light on general health condition of defendant no.1. Likewise,strong adverse inference also was required to be drawn against theplaintiffs and defendant nos.1 and 2 for not examining defendant no.2,who is mother of plaintiffs and was supporting the cause of plaintiffs.The same cannot be said about defendant no.1 because he had diedbefore the evidence of plaintiffs commenced. The fact that defendant 25269.94SA+.odtno.1 was undisputedly not doing any work coupled with the fact thatthe plaintiffs have failed to prove that he was addicted to vices and thefact that his death certificate indicates that he was suffering fromtuberculosis is enough to indicate that defendant no.1 was not workingbecause he was indisposed. The findings by the learned trial court inthis regard are just and proper. The learned first appellate court shouldnot have reversed the said findings. The finding by the learned firstappellate court that the pleadings are insufficient is also incorrect. 32.The learned first appellate court has also not dealt with thereasons recorded by the learned trial court while dismissing the suitand particularly while recording that defendant no.1 had alienated theproperties in view of the legal necessity. 33.It needs to be mentioned that the transactions from theyear 1975 till the year 1980 are challenged on the ground that thesame were entered into without legal necessity. It is alleged thatdefendant no.1, father was addicted to vices leading into alienation ofthe properties. As against this, the case of defendant nos.3 to 6 -purchasers is that the alienations were for legal necessity because thefather was indisposed and could not do any work as such was unable toarrange for the day today household expenses and was in also debt.Both the courts have concurrently held that the plaintiffs had failed to 26269.94SA+.odtestablish that the father was addicted to vices. Both the Courts havealso concurrently held that the plaintiffs had failed to prove thattransactions were without consideration. The learned first appellatecourt has held that the family had agricultural lands which wereyielding income, and therefore, there was no pressure on the estate foralienation of the properties. The finding by the learned first appellatecourt that agricultural income was sufficient to sustain the family is notsupported by any evidence or even pleading. It is rather contrary to theevidence of the plaintiffs' witness, who is their maternal grandfather,who states that he was taking care of expenses of the children.Outstanding bank loan and outstanding dues of the Co-operativeSociety are duly established by documentary evidence. The finding bythe learned first appellate court is thus completely contrary to theevidence on record since the evidence on record is not taken intoconsideration while recording such finding, the said finding warrantsinterference even though scope of interference in the second appealwith finding of facts is limited. 34.For the reasons aforesaid, it needs to be held thatdefendant nos.3 to 6 have proved that the transactions were for legalnecessity. 35.The learned counsel for the respondents has placedreliance on following judgments :- 27269.94SA+.odt(i)Smt. Rani and another Vs. Smt. Santa Bala Debnath and others (AIR 1971 SC 1028) (ii)Vidyulata w/o Vikrant Patil and another Vs. Uttam s/o Nivrati Langade and others (2022(3) All MR 101) (iii)Haridas Hanmant Kadam Vs. Shankar Shripati Kadam and others(2024 DGLS (Bom) 1811)(iv)Shankarlal Ramprasad Laddha died L.Rs. Chandrabhaga Shankarlal Laddha and others (2009(3) Mh.L.J. 959) (v)Shankarlal Ramprasad Ladha (Died by L.Rs.) Vs. Vasant Chandidasrao Deshmukh and ors (2009(2) All MR 93) Referring to the above cases, she contends that the burdenof proving legal necessity is on the purchaser. There cannot be anydispute with respect to the said well settled legal proposition of law. It,however, needs to be mentioned that the learned trial court has heldthat defendant nos.3 to 6/purchasers have proved that transactionswere for legal necessity. The learned first appellate court has reversedthe findings by the trial court on this aspect. However, learned firstappellate court does not hold that the evidence on record is insufficientto prove legal necessity. The learned first appellate court has ratherheld that the evidence with respect to legal necessity is inadmissible forwant of pleadings in the written statement. As is held above, thepleadings are sufficient with respect to legal necessity for discharge of 28269.94SA+.odtbank loan and also with respect to need for day today expenses andexpenses for treatment. The contentions of the plaintiffs that pleadingsare not appropriate with respect to alleged need for improvement onthe land appear to be correct. However, having regard to the totality ofthe circumstances, as emerging from the pleadings and evidence, itmust be held that the respondents/purchasers have proved that thetransactions were for legal necessity. In this regard, it needs to bereiterated that there is no dispute about the fact that respondent no.1,who was the Karta and his wife, were not working and that theplaintiffs were aged 11 years and 9 years at the time of filing of suit.Whereas, the case of plaintiffs is that respondent no.1, father was notworking as he was addicted to vices, the case of respondent nos.3 to 6is that he was not working since he was suffering from tuberculosis.Both the courts have concurrently held that the plaintiffs failed to provethat defendant no.1 - Karta was addicted to vices. 36.Having held so it needs to be considered that there is onlyone complete transaction of transfer of property i.e. sale deed in favourof defendant no.3. As regards defendant no.4, he claims right over thesuit property on the basis of an oral agreement coupled withcompromise decree, which records that defendant no.4 was placed inpossession and that plaintiffs' father defendant no.1 had agreed not todisturb his possession over the same forcibly. As regards defendant 29269.94SA+.odtnos.4 and 5, they had entered into a registered agreement of sale withdefendant no.1. They have received possession of the property under aseparate document titled as "possession receipt". There is a compromisedecree in their favour in suit filed by them against defendant nos.1 and2. The learned trial court has held that defendant nos.4 to 6 areentitled to protection under Section 53A of the Transfer of Property Act.The finding by the learned trial court is correct with respect todefendant nos.5 and 6, however, since the agreement in favour ofdefendant no.4 is an oral agreement, Section 53A of the Transfer ofProperty Act could not have been invoked. In that view of the matter,the suit will have to be decreed against defendant no.4. It will also bepertinent to mention that defendant no.4 had filed a suit for specificperformance of contract, which is dismissed by the learned trial courtas well as learned first appellate court and in the said suit, counterclaim filed by the plaintiffs for possession is decreed. Defendant no.4has challenged the said concurrent decrees by separate second appeal,which is decided simultaneously by separate judgment. The said secondappeal is also dismissed on the ground of limitation. 37.The original defendant no.1-Kashinath (father of plaintiffs)had died while the civil suit was pending. His daughter Savitrabai wasbrought on record as his legal representative and class-I legal heir. Hisother class-I legal heirs are already on record as plaintiffs (sons) and 30269.94SA+.odtdefendant no.2 (wife). During pendency of present second appeal,Savitrabai (mother of plaintiffs) also expired and her name wasordered to be deleted vide order dated 01.04.2022 since all her legalrepresentatives i.e. sons and daughter were on record. 38.The suit filed by the plaintiffs is liable to be dismissed withrespect to suit property bearing survey no.95/A, 2 acres land in surveyno.267/C-2 and survey no.270-A-2. On death of Kashinath, his sharewill have to be considered to be separated by notional partition as perunamended Section 6 of the Hindu Succession Act. Kashinath wassurvived by two sons, a daughter and widow, therefore, on his demisehis share in the suit properties, will be worked out to 1/4th. This 1/4thshare will be inherited in equal proportion by his four class-I legal heirsmeaning thereby each one will get 1/16th share from 1/4th share ofKashinath. The share of plaintiffs (sons) and defendant no.2 (mother)will be 5/16th each on death of Kashinath. On death of mother, herthree legal heirs will get 1/3rd share each i.e. 5/48th share from her5/16th share. Accordingly, share of plaintiffs will come to 5/12th eachand that of respondent no.3A(daughter) will be 2/12th i.e. 1/16th. 39.In the result, the following order :- ORDER (i)The second appeals are partly allowed. 31269.94SA+.odt(ii)The judgment and decree dated 08.07.1994 passed by thelearned 2nd Additional District Judge, Beed in Regular Civil AppealNo.310/1987 is quashed and set aside. (iii)Regular Civil Suit No.865/1980 decided by the learned CivilJudge, Junior Division, Georai vide judgment and decree dated06.10.1987 is dismissed with respect to :-(a) land bearing survey no.95/A admeasuring 9 acres 15 gunthas ofvillage Gangawadi That Talwada, Tq. Georai, Dist. Beed. (b)2 acres land out of total 6 acres 37 guntha land in surveyno.267/C-2 and 3 acres 31 gunthas land of survey no.270/A-2 ofvillage Gangawadi That Talwada, Tq. Georai, Dist. Beed. (iv)Regular Civil Suit No.865/1980 decided by the learned CivilJudge, Junior Division, Georai vide judgment and decree dated06.10.1987 is partly decreed as under :- (a) Dharmaraj Rambhau Chikne-appellant no.1 in Second AppealNo.269/1994 i.e. original defendant no.3 does not have any right, titleor interest over the suit property bearing survey no.94/A-2admeasuring 5 acres 7 gunthas situated at village Gangawadi ThatTalwada, Tq. Georai, Dist. Beed and shall also not be entitled topossession of the same. 32269.94SA+.odt(b)It is declared that respondent no.1/plaintiff no.1 (AsaramKashinath Jadhav) and respondent no.2 / plaintiff no.2 (MotiramKashinath Jadhav) and Respondent No.3A / original defendant no.1A(Savitrabai Kashinath Jadhav) are entitled to 5/12th, 5/12th and 1/6thshare each respectively in suit property bearing survey no.94/A-2admeasuring 5 acres 7 guntha , 4 acres 37 guntha land in surveyno.267/C-2 and house property situated at village Gangawadi ThatTalwada, Tq. Georai, Dist. Beed and it is directed that partition beeffected and they be placed in separate possession of their respectiveshares. Precept be sent to Collector for partition of agricultural lands. (v)The parties to bear their own costs. 40.Civil Application, if any, stands disposed of. [ROHIT W. JOSHI]JUDGEsga/