Karnataka High Court
Smt Channabasavva vs Smt Gourawwa on 20 October, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF OCTOBER, 2022
R
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.822/2013 (PAR)
BETWEEN
1. SMT. CHANNABASAVVA
W/O KALLAPPA MANAGIRI,
AGED ABOUT 76 YEARS,
OCC: AGRICULTURE/
HOUSEHOLD WORK
2. SHRI BASAPPA
S/O KALLAPPA MANAGIRI,
SINCE DECEASED BY HIS LRS.,
2(A) SUNANDA W/O. BASAPPA MANAGIRI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
2(B) KALYANKUMAR S/O. BASAPPA MANAGIRI
AGE: 21 YEARS, OCC: STUDENT
2(C) ARVIND S/O. BASAPPA MANAGIRI
AGE: 19 YEARS, OCC: STUDENT
2(D) NAGAVENI D/O. BASAPPA MANAGIRI
AGE: 15 YEARS, OCC: STUDENT
APPLICANTS 2(C) & S(D) BEING MINORS
ARE REP. BY THEIR NATURAL MOTHER AND
MINOR GUARDIAN THE APPLICANT-1
APPLICANTS ARE ALL R/O. TAMBA
TQ: INDI, DT: BIJAPUR
...APPELLANTS
(BY SRI ASHOK R. KALYANASHETTY AND
SRI S.S.MAMADAPUR, ADVOCATES)
AND
1. SMT GOURAWWA W/O IRAPPA ASANGI
AGED ABOUT 41 YEARS, OCC: HOUSE HOLD WORK,
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R/AT TAMBA-586215, TQ. INDI
DIST: BIJAPUR
2. SHRI SHRISHAIL S/O IRAPPA ASANGI
AGED ABOUT 17 YEARS, OCC: STUDENT
MINOR REPRESENTED BY HIS GUARDIAN
AND MOTHER THE FIRST RESPONDENT
SMT. GOURAWWA, R/AT TAMBA-586215
TQ: INDI, DIST: BIJAPUR
3. SMT. GOURAWWA W/O SHRI PUNDALIK KADAKOL,
AGE: 43 YEARS, OCC: HOUSE HOLD WORK,
R/O NAGARAL, TQ:BIJAPUR-586101
4. SMT. SUBHADRA
W/O SHRIMANTH GANAVALAGI,
AGE: 44 YEARS, OCC: HOUSE HOLD WORK,
R/O KEB QUARTERS,
NEAR RAILWAY STATION, GULBARGA-585101
5. SMT. GURUBAI W/O SIDRAYA PUJARI,
AGE: ABOUT 41 YEARS, OCC: HOUSE HOLD WORK,
R/O HOKKUNDI, TQ: BIJAPUR-586101
6. SHRI VITHAL S/O KALLAPPA ASANGI,
AGE: ABOUT 60 YEARS, OCC: AGRICULTURE,
7. SMT. SUBHDRA W/O SHRI VITHAL ASANGI,
AGE: 55 YEARS, OCC: HOUSE HOLD WORK,
8. SHRI KALLAPPA S/O SHRI VITHAL ASANGI,
AGE: 31 YEARS, OCC: AGRICULTURE
9. SHRI PRAVEEN S/O SHRI VITHAL ASANGI,
AGE: ABOUT 25 YEARS, OCC: AGRICULTURE
10. SHRI BEERAPPA S/O MALLAPPA TAGANI,
SINCE DECEASED BY LRS.,
10(A) SMT. SHIVAMMA W/O. BEERAPPA TAGANI
AGE: 52 YEARS, OCC: HOUSEHOLD WORK
10(B) SRI BABURAYA S/O. BEERAPPA TAGANI
AGE: 28 YEARS, OCC: AGRICULTURE
All R/O. WADE, TQ: INDI, DIST: BIJAPUR
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11 . SHRI RAMACHANDRA S/O SHARANAPPA PUJARI
AGE: 66 YEARS, OCC:AGRICULTURE,
R/O TENAHALLI-586215, TQ:INDI
...RESPONDENTS
[BY SRI AJAYKUMAR A.K., ADVOCATE FOR R6 TO R9 & R11;
R1, R3, R4, R5, R10(A), R10(B) SERVED;
R2 IS MINOR REPTD. BY R1]
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD. 28.01.2013 PASSED IN
R.A.NO.96/2010 ON THE FILE OF PRINCIPAL DISTRICT JUDGE,
BIJAPUR, PARTLY ALLOWING THE APPEAL AND MODIFYING THE
JUDGEMENT AND DECREE DTD 17.6.2010 PASSED IN
OS.NO.12/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
INDI AND TO EXCLUDE AN EXTENT OF 16 ACRES OF LAND IN
SUIT SY.NO.703 UNDER EX.D1 IN FAVOUR OF DEF-
RESPONDENT.6 FROM PARTITION AND RESTORY THE
JUDGMENT AND DECREE OF THE SAID TRIAL COURT IN
ENTIRETY.
THIS APPEAL IS COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiffs, who have questioned the
divergent findings of the Courts below in dismissing the suit of the plaintiffs insofar as alienation done by the propositus Kallappa in favour of defendant No.6 under a registered sale deed dated 30.12.1978 vide Ex.D1.
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2. For the sake of convenience, the parties are referred to as per their ranks before the trial Court.
3. The plaintiffs claim to be the wife and son of one Kallappa. Defendant Nos.1 to 4 are also the children of plaintiff No.1 - Chanabasawwa and propositus - Kallappa. The present suit is filed by specifically contending that the suit properties are the joint family ancestral properties belonging to Hindu Undivided Family consisting of plaintiffs and defendant Nos.1 to 4. The plaintiffs have specifically averred in the plaint that defendant No.6 has created a sham and bogus sale deed to an extent of 16 acres out of R.S.No.703 totally measuring 29 acres 31 guntas. The plaintiffs claim that Kallappa never executed a sale deed in favour of defendant No.6 and further specifically pleaded that the signature found on the sale deed is not that of Kallappa. The plaintiffs further pleaded that defendant No.6 at first instance claimed 5 to be the tenant of the suit properties and claimed occupancy rights before the land Tribunal. It is contended that defendant No.6 has given a statement before the Land Tribunal that he is not the tenant of the suit properties. Having failed to establish his tenancy, defendant No.6 has come with a sham and concocted document. It is further pleaded that defendant No.6 has created third party rights by alienating 7 acres of land in favour of defendant No.10. On these set of pleadings, plaintiffs claim that alienation made by husband of plaintiff No.1 and father of plaintiff No.2 and defendant Nos.1 to 4 is not binding on plaintiffs' legitimate share. The present suit is filed alleging that it is only when defendant No.6 started asserting his right over the suit schedule properties in the year 2006, the plaintiffs enquired by securing revenue document and it was only then they realise illegal acts and deeds of defendant No.6. Hence, the present suit.
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4. Defendant No.6 on receipt of summons tendered appearance and filed written statement. Defendant No.6 stoutly denied the entire averments made in the plaint. Defendant No.6 contended that suit properties were infact granted to the husband of plaintiff No.1 and therefore claimed that properties alienated are self acquired properties of Kallappa. Defendant No.6 however stoutly denied the allegation that Kallappa was addicted to vices. Defendant No.6 also disputed the claim of the plaintiffs that alienation was not for legal necessity. Placing reliance on title document i.e., registered sale deed dated 30.12.1978, defendant No.6 contended that he has acquired valid right and title and pursuant to sale deed, family of plaintiffs have lost possession of 16 acres of land. It is further pleaded that sale deed has gone unchallenged for almost 29 years and therefore, a specific plea was raised in regard to limitation by contending that suit is barred by limitation. 7
5. The plaintiffs to substantiate their claim have let in oral evidence and examined plaintiff No.2 as PW.1 and two witnesses as PW.2 and PW.3 and adduced documentary evidence vide Exs.P1 to P13. Defendant No.6 examined himself as DW.1 and adduced documentary evidence vide Exs.D1 to D16. The registered sale deed in favour of defendant No.6 was marked as Ex.D1.
6. The trial Court on examination of oral and documentary evidence answered issue Nos.1 to 4 in the affirmative. The trial Court held that plaintiffs have succeeded in proving that suit properties are the joint family properties. While answering issue No.2, the trial Court held that plaintiffs have succeeded in establishing that document set up by defendant No.6 is a sham document. The trial Court while dealing with issue Nos.1 to 4 has laid more emphasis on the fact that suit properties were the ancestral properties and there was no partition in the family. It is in this 8 background, trial Court proceeds on an assumption that Kallappa had no legal necessity and therefore, he had no occasion to sell the land bearing R.S.No.703 to an extent of 16 acres.
7. The trial Court has drawn adverse inference by placing reliance on the documents pertaining to Land Tribunal proceedings. Referring to these documents, trial Court was of the view that entire burden was on defendant No.6 to prove and establish that he is a bonafide purchaser of land bearing R.S.No.703. The trial Court has also doubted in regard to the genuineness of the document. The trial Court has doubted Ex.D1, which is a registered sale dated 30.12.1978 on the premise that defendant No.6 has not examined the witnesses to the sale deed. Thereafter, referring to Ex.P12, which is a mutation bearing M.E.No.3212, trial Court arrived at a conclusion that since the suit property which was alienated is also ancestral property held that 9 alienation made by Kallappa in favour of defendant No.6 is not proper and therefore, sale would not bind the legitimate share of the plaintiffs. A categorical finding is recorded that the plaintiff has proved that sale deed set up by defendant No.6 vide Ex.D1 is a sham document and that defendant No.6 has failed to prove that he is a bonafide purchaser.
8. Feeling aggrieved by the judgment and decree of the trial Court, defendant No.6 preferred an appeal before the appellate Court. The appellate Court being a final fact finding authority has independently assessed the entire evidence on record. The appellate Court has independently examined the validity and genuineness of the sale deed dated 30.12.1978. The appellate Court bearing in mind the date of the sale deed was of the view that document is 30 years old document and same is produced from proper custody and therefore, appellate Court was of the view that there is a presumption in regard to its 10 genuineness and the same has to be believed unless party disputing the title document establish that the sale deed executed by Kallappa in favour of defendant No.6 is found to be a sham document. The appellate Court has also taken cognizance of the subsequent acts pursuant to alienation done by Kallappa. Referring to mutations, appellate Court found that sale deed was reported to the revenue authority and accordingly, defendant No.6 name was mutated to the revenue records under M.E.No.7806, which is certified on 06.02.1979. Referring to revenue records, appellate Court was of the view that sale deed was acted upon, was given effect to and defendant No.6 asserting absolute right over 16 acres of land has in turn alienated 7 acres of land in favour of defendant No.10.
9. The appellate Court has also recorded a categorical finding that pursuant to alienation, defendant No.6 was found to be in exclusive 11 possession of 16 acres of land and therefore, declined to accept the contention of the plaintiffs that they are in joint possession of entire extent in Survey No.703. The appellate Court was of the view that alienation is made by Kartha of the family and plaintiffs for the reasons best known to them though have claimed that sale dated 30.12.1978 is a sham document, the said document is not challenged in the present suit. It is in this background, the appellate Court was of the view that trial Court has totally misread the entire evidence on record and therefore, erred in granting a decree even in respect of alienated portion. On these set of reasonings, appellate Court was not inclined with the findings and conclusions recorded by the trial Court insofar as 16 acres of land covered under Ex.D1 is concerned. Consequently, appeal is allowed and suit is dismissed in respect of 16 acres of land which was subject matter of alienation vide Ex.D1. 12
10. These divergent findings are under challenge in this appeal.
11. Learned counsel appearing for the appellants/plaintiffs vehemently argued and contended that there is absolutely no material on record to indicate that alienation was for legal necessity. He further contended that there is even no foundation in regard to legal necessity and therefore, plaintiff No.2 and defendant Nos.1 to 4, who are coparceners and have not consented for alienation are not bound by the alienation made by Kartha and therefore, they are entitled to seek share in entire extent in Survey No.703. He would also contend that the appellate Court erred in awarding 1/3rd share in the joint family properties and consequently, erred in upholding alienation to an extent of 16 acres, ignoring that daughters are also to be treated as coparceners and would take independent share in the suit schedule properties. He would vehemently argued and contend 13 that the appellate Court has grossly erred in extending the presumption under Section 90 of the Indian Evidence Act. Admittedly, the document is not 30 years old and therefore, presumption available under Section 90 of the Indian Evidence Act could not be extended in the present case on hand and the presumption one drawn in respect of Ex.D1 is totally erroneous and therefore, it give raise to a substantial question of law in the present case on hand. He concludes his argument by contending that Kallappa never acted as Kartha and he was addicted to vices, the question of examining as to whether the sale was for the benefit of the family could not arise in the present case on hand. If the sale is not for the benefit of the family, then the non alienating coparceners cannot be deprived of enforcing their legitimate share even in the alienated portion and therefore, he would content that judgment and decree of the appellate Court suffers from perversity and the same is contrary to evidence on record.
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12. Learned counsel appearing for defendant No.6 repelling the contentions canvassed by the counsel appearing for the plaintiffs would contend that Kallappa admittedly was the Kartha of the family. The recital in the sale deed would clinch the entire controversy. Referring to the recital would contend that the alienation was infact for legal necessity. He would take this Court through Article 109 of the Limitation Act and would contend that the sale deed was of the year 1978, while suit is filed in 2007. The plaintiffs' family have lost possession way back in 1978. There are sub-divisions. The portion that was alienated is assigned a new number, while the portion retained by the plaintiffs' family is also assigned the new number. If possession was lost in 1978, it was incumbent on the part of plaintiff No.2 to question the sale deed within twelve years. To buttress his argument, he has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of 15 K.C. Laxmana v. K.C. Chandrappa Gowda1. Referring to the principles laid down by the Hon'ble Supreme Court, he would contend that if there is alienation by one of the coparcener without the consent of the other coparceners in the family, it is open for the non-alienating coparceners to question the sale deed within a period of twelve years. In the present case on hand, the alienation made by Kallappa in favour of defendant No.6 has gone unchallenged and the present suit is filed in 2007, after lapse of 29 years. Therefore, he would contend that the present suit is squarely hit by Article 109 of the Limitation Act. Hence, he would contend that the judgment and decree of the appellate Court would not warrant any interference.
13. Heard the learned counsel appearing for the plaintiffs and learned counsel appearing for defendants. I have given my anxious consideration to the records and I have also given my anxious 1 (2022) 6 Scale 315 16 consideration to the divergent findings recorded by the Courts below.
14. Learned counsel appearing for the plaintiffs have placed reliance on the judgment rendered by the Co-ordinate Bench of this Court in RSA No.1653/2021.
15. The present suit is filed by widow and son of one Kallappa. The husband of plaintiff No.1 has alienated 16 acres in Sy.No.703 out of total extent measuring 29 acres 31 guntas through registered sale deed dated 30.12.1978 vide Ex.D.1. Pursuant to the alienation, defendant No.6's name is mutated and on account of alienation, there are sub-divisions in the land bearing Sy.No.703. The same is evident from the documents produced by the plaintiffs themselves. Even in the schedule, the plaintiffs have referred the Sy.No.703 as 703/1, 703/2B1, 703/2B2 and 703/2A. Remedies and Rights of Non-alienating Coparcener
16. The portion that was retained by Kallappa is assigned as 703/1 and the portion, which was 17 purchased by defendant No.6 was numbered as 703/2. In Sy.No.703/2, there are further sub- divisions on account of alienation by defendant No.6 in favour of defendant No.10. These significant details would clinch the entire controversy between the parties. Though this Court has absolutely no cavil to the proposition laid down by the Co-ordinate bench of this Court in the judgment cited by the learned counsel appearing for the plaintiffs, the said principle would not come to the aid of the plaintiffs in the present case on hand. It is a trite law that where there is an alienation of joint family ancestral property, the non-alienating coparceners need not challenge the sale deed, but however, it would be incumbent on the part of non-alienating coparceners to seek partition on the ground that there is an alienation of joint family property. Article 109 of the Limitation Act would come into play. If the family has lost physical possession of an ancestral property pursuant to sale deed and if the alienation is 18 admittedly made by the Kartha or Manager of the family, then Article 109 of the Limitation Act contemplates a remedy enabling the non-alienating coparceners to question the alienation by seeking formal declaration by filing partition suit.
17. The principles relating to the right of Hindu coparcener in case there is alienation of ancestral properties and same is exhaustively dealt with by the Division Bench of this Court in the case of Ganapati Santaram Bhosale vs. Ramachandra Subbarao Kulkarni2. The Division Bench of this Court while examining the alienation of ancestral property held that in a suit for partition by Hindu coparcener, it is not necessary to seek setting aside the alienation and it would be sufficient to seek share and possession thereon for declaration that he is not bound by alienations.
2 ILR 1985 KAR 1115 19
18. That necessarily does not mean that non- alienating coparcener have to question the sale deed. All that is required is to seek a relief of declaration that the alienation made by coparcener is not binding on his/her independent legitimate share in the ancestral land. This doctrine of not binding emanates from the fact that the coparceners have right by birth and independent of their father's rights. It is more than trite that where alienation is by Kartha for the benefit of the family, a coparcener who is not a party to the sale deed or is not a consenting witness to the sale deed is still bound by the alienation.
Alienation by Karta; Section 3 and Article 109 of Limitation Act
19. The material on record clearly demonstrates that Survey No.703 has undergone sub- division post alienation. That clearly establishes that alienee has taken possession of the property pursuant to sale deed executed by Karta. Therefore, under Article 109 of the Limitation Act, the relevant point is the date when the alienee takes possession of the 20 property alienated. If the suit is barred under Article 109 of Limitation Act, Section 3 of the Limitation Act puts an embargo on the Court not to entertain a suit if it is found to be barred by limitation. Where the bar of limitation appears on the face of the proceedings, the Court is bound under Section 3 of the Limitation Act to go into question of limitation on its own accord, although not raised by the party. It is also more than trite that where the claim is time barred on the allegations contained in the plaint itself, there is no reason why the plea of limitation should not be upheld even if raised before the appellate Court. Equally where an appellate Court finds that a suit in Court below was instituted after prescribed period of limitation, it is the duty of the appellate Court to dismiss the suit, although defendant had not set up a plea of limitation. It is not competent to a party to waive a plea of limitation so as to absolve the Court from its duty to dismiss the suit instituted after period of limitation. Therefore, even on this count, the 21 plaintiffs' suit is liable to be dismissed under Section 3 of the Limitation Act as the reliefs sought in the present suit are found to be barred under Article 109 of the Limitation Act.
20. If the plaintiffs are aware of sub-division of the suit land and if plaintiffs' family has retained portion after alienation in the very survey number, it clearly indicates that the plaintiffs are well aware of the alienation made by Karta. The fact that plaintiffs' family lost possession in the year 1978 can be gathered from the material on record.
21. Now the difficulty in the present case is that the alienation is of the year 1978. The alienation is between two agricultural families. When a farmer mobilizes funds and acquires agricultural land, the Courts ought to be sensitive enough to protect his right, if non-alienating coparcener had not immediately filed a partition suit having lost possession pursuant to alienation. Therefore, Article 22 109 of the Limitation Act has to be pressed into service in the present case on hand. The question of limitation can be considered at any stage of the proceedings. Under Section 3 of the Limitation Act, the Courts are conferred with the power to scrutinize the pleadings and find out as to whether the relief that is sought is barred by limitation. Where the suit is expressively barred by limitation, the Courts need not wait for defendant to set up a plea of limitation. There is a duty caste on the Court to independently look into the relief and examine as to whether the suit is in time or barred by limitation. Therefore, dehors the pleadings in the written statement, even this Court under Section 100 of CPC can take cognizance of plea of limitation. In the present case on hand, it does not even require a roving inquiry. The plaint averments itself clearly indicate that the plaintiffs have clearly stated in the plaint that Kallappa has sold a portion way back in 1978. Therefore, if alienation by Kallappa is dated 30.12.1978 and the suit is filed in 23 the year 2007, the present suit is squarely hit by Article 109 of the Limitation Act and therefore, this Court is of the view that the suit itself is not maintainable.
Burden of proof against alienee to prove legal necessity; Proof of legal necessity; When alienations are challenged after considerable length of time
22. This Court has to also take note of the principles laid down by the Hon'ble Apex Court in the case of Chheddi Lal Yadav vs. Hari Kishore Yadav3. If a party acquires title based on a registered document and if the document has gone unchallenged for almost 29 years and if there is further alienation by the transferee, thereby creating third party right, the question that needs to be examined by this Court is as to whether those rights can be negated at the instance of the family members, who have conveniently chosen to squat 3 (2018) 12 SCC 527 24 over for almost 29 years for the reasons best known to them.
23. It is not only alienation, but the family has virtually lost over physical possession, which was quite tangible and visible to the family members for almost 29 years. If at this juncture, a transferee is called upon to prove legal necessity, it would be harsh on the transferee at this stage to expect that he would be having material on record to demonstrate that alienation was for the legal necessity. If family members have kept quiet for 29 years, an inference has to be drawn, that alienation was by the Kartha and it presupposes that the alienation was for legal necessity. The sale deed also indicates that the sale was on account of financial constraints. To counter the recitals in the sale deed, no attempts are made by the plaintiffs and no credible evidence is placed except examining one witness as P.W.2 and oral evidence of witness cannot negate valuable rights accrued under registered sale deed for valuable sale consideration. 25
24. The Division Bench judgment rendered by this Court in the case of Ganapati Santaram (Supra) has dealt with in regard to proving the legal necessity. The Division Bench has held that burden of proving the legal necessity is on alienee. The Division Bench was of the view that the recitals in the deed are not sufficient and independent evidence has to be let in by the alienee. The principles laid down by the Division Bench casting burden on the alienee has to be examined in the light of fact and circumstances of a case. If alienation is challenged by non-alienating coparceners after lapse of considerable time, the Courts have to take into consideration the rights of the alienee which stood crystallized by passage of time and therefore, it becomes quite essential to ascertain and accept the recitals in the sale deed indicating that alienation was for legal necessity.
25. The right of Kartha to sell an ancestral property is beyond cavil vide several judgments rendered by the Apex Court. Existence of legal 26 necessity depends upon the facts of each case. The Kartha enjoys wide discretion in his decision over existence of legal necessity and as to in what way such necessity can be fulfilled. What were the compelling reasons in 1978 cannot be assessed in 2007. Therefore, alienee cannot be now called upon to explain the existence of legal necessity in 2007. Where a long period of 29 years has elapsed since sale took place, it is not reasonable to expect such full and detailed evidence of the circumstances, which gave rise to the sale. Though lapse of time does not affect the question of onus of proof regarding necessity, but it might give rise to a presumption of acquiescence, or save the alienee from adverse inference arising from scanty proof. The recitals in the sale deed vide Ex.D.1 in the present case on hand in regard to existence of legal necessity is admissible in evidence and therefore, the presumptions in the present case on hand are very much permissible to fill in details which have been obliterated by time. 27
26. The recitals as to legal necessity in documents are not by themselves proof of facts asserted, provided sale deed is challenged at or near the time of execution, when independent evidence is available and alienee is in a position to place on record the material relating to legal necessity. But if by lapse of time, all those tangible evidence, which were available at the time of execution of sale deed may not be available to the alienee when alienation is questioned by the transferee's family after lapse of time. In such a case the recitals in the sale deed depicting legal necessity is clear evidence of the representation to the alienee as to the existence of the necessity and if the circumstances are such which would probabilise the case of alienee that alienation by the Kartha was for legal necessity, then recitals in the sale deed coupled with the circumstances would be sufficient evidence to support the deed.
27. It is a trite law that a recital consistent with the probability and circumstances of the case, 28 assumes greater importance and cannot lightly be set aside; for it should be remembered that the actual proof of necessity which justified the sale deed is not essential to establish its validity. It is only necessary that a representation should have been made to the purchaser that such necessity existed, and that the alienee should have acted honestly and made proper enquiry to satisfy himself of its truth. Therefore, recitals in the sale deed after lapse of time would play significant role when proof of actual enquiry has become impossible.
28. The legal necessity cannot be confined to payment of Government revenue and debts or maintenance of coparceners and members of their families or marriage expenses of male coparceners and daughters or performance of necessary funeral or family ceremonies. The above incidents relating to legal necessity are not the only indices for concluding as to whether alienation was indeed for legal necessity. The plaintiffs have also not placed any 29 credible evidence to indicate that Kartha, who was compelled to alienate a portion of the land was not prudent enough in assessing the situation, which warranted alienation of a Joint Family ancestral property. Therefore, the transaction in the present case on hand has to be regarded and presumed that it was for legal necessity and for the benefit of the family. What was the precise nature of the things, which compelled the Kartha to alienate a portion cannot be expected for alienee to demonstrate, that too after lapse of 29 years. The plaintiffs in the present case on hand to counter recital in regard to legal necessity have failed to prove that the alienation made by Kallappa was found to be imprudent. Therefore, the alienation made by Kartha would bind the plaintiffs and the sale deed executed by Kartha in favour of defendant No.6 does not get vitiated.
29. Therefore, I am of the view that the judgment and decree rendered by the appellate Court is in accordance with law and does not suffer from any 30 infirmity. This Court has also taken note of the fact that no serious prejudice is caused to the plaintiffs. The plaintiffs' family have still retained around 33 acres of land. Therefore, if share is granted in remaining 33 acres, no prejudice will be caused to the plaintiffs. On the contrary, if the alienation is negated at this juncture, it would cause serious prejudice to transferee whose rights have stood crystallized by passage of time. Therefore, no substantial question of law arises for consideration.
Accordingly, the Appeal is dismissed.
In view of disposal of the main matter, I.A.No.2/2013 filed for stay does not survive for consideration.
Sd/-
JUDGE Srt/RSP