High Court

Legal Reasoning

1904-sa-417-1994.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.904 SECOND APPEAL NO. 417 OF 1994Manik s/o Samruta,Age 26 years, Occu: Agriculture,R/o. Halda, Ta. Kandhar,District Nanded.(Now the appellant has became Major, hence guardian is not shown)...AppellantVERSUS1.Tanaji s/o Sambhaji Dhone(Died)Through Lr’sA. Sarjabai w/o Tanaji Dhone,Age 45 years, Occu: Household,R/o. Halda, Taluka Kandhar,District NandedB. Babu s/o. Tanaji Dhone,Age 30 years, Occu: Household,R/o. Warvat, Taluka Kandar,District : Nanded.C. Kesarbai d/o Tanaji Dhone,Age 30 years, Occu : Household,R/o. Warvat, Taluka Kandar,District : Nanded.D. Laxmibai w/o Sadanand Jadhav,Aged 25 years, Occu : Household,R/o. Piprawadi, Tq. Kandhar, District Nanded2.Samruta s/o Manikrao Shinde,Age 57 years, Occu: Agril.,R/o. Halda, Tq. Kandhar,District Nanded....Respondents…Advocate for Appellant : Mr. M. D. NarwadkarAdvocate for Respondent Nos.1a to 1d : Mr. Kedar Warad h/f. Mr. S. V.Warad… 2904-sa-417-1994.odtCORAM :ROHIT W. JOSHI, J.DATE :04th MARCH, 2025ORAL JUDGMENT :-1.The original defendants have preferred the present SecondAppeal challenging decree for partition passed in favour of the plaintiffsin Regular Civil Suit No.153 of 1978 vide judgement and decree dated29.01.1983 which has been confirmed by judgment and decree dated30.06.1992 by the learned Fourth Additional District Judge, Nandedwho has dismissed Regular Civil Appeal No.54 of 1983 preferred by thedefendants, who are the appellants here. 2.The original plaintiffs are sons and daughter of one SambhajiDhone. This Sambhaji Dhone had executed a sale deed dated04.03.1976 in favour of defendant No.1. Since the defendant No.1 wasminor on the date of sale deed, the defendant No.2, his father, acted onhis behalf in completing the sale transaction. The contentions of theplaintiffs in the suit was that the property alienated by SambhajiDhone, their father was an ancestral property which was sold withoutlegal necessity and as such the sale transaction was not binding onthem. The plaintiffs also raised a contention that simultaneously, withexecution of the sale deed there was an agreement of reconveyanceunder which it was agreed that upon payment of Rs.5,000/- the 3904-sa-417-1994.odtproperty alienated would be reconveyed by the purchaser/defendantNo.1 to Sambhaji Dhone. The principal prayer in the suit is forreconveyance of the suit property and alternatively a prayer is madethat in the event the decree for reconveyance is not granted, a decreefor partition and separate possession be granted on the ground that thesale transaction being with respect to an ancestral property withoutlegal necessity, will not be binding on the other coparceners. Thelearned Trial Court has decreed the suit partially by refusing the prayerfor reconveyance for the suit property and instead granting a decree forpartition and separate possession in favour of the plaintiffs.3.After the suit was decided the defendant No.1 arrived at acompromise with the legal representatives of plaintiff No.1 and plaintiffNo.3. However, the matter could not be settled inter se betweenplaintiff No.2 and the defendant No.1. In view of this development, thedefendant No.1 preferred first appeal being Regular Civil Appeal No.54of 1983. In this first appeal plaintiff No.2 was arrayed as respondentNo.1 and the original defendant No.2, father of the defendant No.1 wasarrayed as proforma respondent No.2. Vide judgment and decree dated30.06.1992 the learned first appellate Court was pleased to dismiss theappeal confirming the findings recorded by the learned trial Court. 4904-sa-417-1994.odt4.Being aggrieved by the aforesaid, the present Second Appeal hasbeen filed. The Second Appeal came to be admitted on the followingsubstantial questions of law :-“(i) When three deeds for reconveyance is held to be not therethen how the decree for partition be granted when the sale-deedbecomes absolute raises substantial question of law.(iii) That, the plaintiffs when loss their right, due to conveyancedeed then the decree for partition cannot be granted.(iv) That, the suit when is not for partition and separatepossession of property seeking declaration alongwith that saleabout same property is not binding or be declared as null andvoid, neither the relief a partition nor recovery of possession canbe granted.(v)That, the suit filed was for specific performance andrecovery of possession on that basis, the relief of specificperformance is refused, therefor, the recovery of possession isrefused, therefore, the recovery of possession is not available,even by way of partition as the property does not remain jointfamily property.” 5904-sa-417-1994.odt5.The questions are overlapping to a certain extent and therefore itwill be appropriate to decide all of them together. It is a well settledprinciple that a Karta of a joint Hindu family has right to deal with jointHindu family property including the authority to alienate the same.However, this authority is not absolute but it comes with a rider thatthe Karta can alienate joint Hindu family property only in cases of legalnecessity, discharge of debt or for general interest of the family. In thepresent case it is not in dispute that the suit property was an ancestralproperty. It is also not in dispute that father of the plaintiffs lateSambhaji Dhone was Karta of the family. In such circumstances,Sambhaji Dhone could have alienated the property only in case ofabove mentioned contingencies. It also needs to be mentioned that inthe event a sale by Karta is not for legal necessity or for similar needs,the sale will nonetheless be good to the extent of his share in theancestral property.6.It may also be mentioned that the legal position is well settledthat in case an alienation by Karta is assailed by other co-perceners, it isnecessary for them to allege that the alienation was not for legalnecessity and once such allegation is made, it is for the purchaser toprove that the alienation was infact for a legal necessity. 6904-sa-417-1994.odt7.In the present case, the plaintiffs have alleged that alienation ofthe suit property by their father Sambhaji was not for any legalnecessity. The defendant/purchaser has failed to discharge the burdenof proving legal necessity. The learned Courts have recorded properfindings in this regard. The learned Courts have therefore rightly heldthat the sale deed executed by Sambhaji Dhone was not binding on theplaintiffs and therefore the plaintiffs were entitled to a decree forpartition and separate possession with respect to their share in the suitproperty.8.The learned Advocate for the appellant/purchaser referred to thefindings recorded by the learned Courts as also to the evidence onrecord, however, he was not able to point out any legal need ornecessity for which the sale transaction had taken place. In myconsidered opinion the findings by the learned Courts that the saletransaction was not for any legal necessity or for discharge of debt orfor general welfare of the family is just and proper and does notwarrant any interference.9.The learned Advocate for the appellant next contends that theprayer for partition and separate possession could not have beengranted, since the plaintiff had not sought cancellation of the sale deed. 7904-sa-417-1994.odtIn my considered opinion, the submission lacks merit. It is well settledthat while coparceners in a family challenge alienation of ancestralproperty by a Karta they can do so by seeking a decree for partition andseparate possession. The legal position in this regard is settled by acatena of judgments by the Hon’ble Supreme Court and almost all thelearned High Courts. The learned Advocate for the respondent is rightin placing reliance upon judgment dated 21.12.2023 passed by thisCourt in Second Appeal No.588 of 2005, wherein it is held that a co-parcener is entitled for partition and separate possession of his share inancestral property and for that there is no need to seek declaration tothe effect that the sale deed by Karta is not binding on him to theextent of his share.10.In that view of the matter the contention raised by the learnedAdvocate for the appellant deserves rejection and is rejectedaccordingly.11.The next contention by the learned Advocate for the appellant isthat a prayer for reconveyance of the property was also made by theplaintiff and since reconveyance is not granted, it implies that the salehas become absolute. He therefore contends that decree for partitioncould not have been passed by the learned trial Court. I am afraid that 8904-sa-417-1994.odtthe contention is misconceived. The sale is not binding on thecoparceners since it is not for the legal necessity. The said argumentmay hold good qua Sambhaji Dhone who had sold the property,however, the said argument will not hold good as against thecoparceners who have not joined him in the sale transaction. In thatview of the matter, substantial questions of law framed by this Courtare answered against the appellant. The decree for partition passed bythe learned trial Court is just, proper and legal. The learned FirstAppellate Court was also justified in dismissing the appeal.12.Although, a question of law in regard to the shares was notframed while the appeal was admitted, the learned Advocate for theappellant sought leave to contend that shares of parties were notproperly drawn by the learned trial Court and the learned firstappellate Court also lost site of this aspect of the matter that the sharesare not correctly drawn. In fairness and to his credit, the learnedAdvocate for the respondent did not object to immediate hearing onthese questions of law. Therefore, with the consent of the learnedAdvocate for the respondent additional question was framed beforecommencement of hearing of the appeal on merits and the parties areheard finally on the said question immediately with the consent of thelearned Advocate for the respondent. The substantial questions of law 9904-sa-417-1994.odtwhich is framed today is as under:-“(i) Was the sale deed executed by Sambhaji Dhone valid tothe extent of his share in the coparcenary property i.e. suitproperty ?(ii) Have the learned Courts computed the shares of theparties correctly ?13.It is undisputed position on record as it emerges from the plaintitself that Sambhaji Dhone had two sons, Mansing and Tanaji i.e.plaintiff Nos.1 and 2. There were thus three coparceners in the family.A sale deed executed by Karta, although without legal need ornecessity, is good and valid to the extent of his share. The sale deedexecuted by Sambhaji Dhone was therefore valid to the extent of his1/3rd share. Sambhaji, Mansing and Tanaji, the three coparceners had1/3rd shares each in the suit property. Therefore, Tanaji, plaintiff No.2 isentitled to 1/3rd share in the suit property as against 4/9th shareawarded by the learned trial Court and the learned first appellateCourt. To that extent the decree needs modification. 14.In the result, the appeal is partly allowed. 15.The decree passed by the learned Civil Judge, Junior Division, 10904-sa-417-1994.odtKandhar in Regular Civil Suit No.153 of 1978 stands modified to theextent that the plaintiff No.2-Tanaji Sambhaji Dhone is entitled to 1/3rdshare in the suit property. Clause (2) in the operative order and decreedated 29.01.1983 in the said Civil Suit stands modified accordingly. [ROHIT W. JOSHI J.] Narwade/