Punjab-Haryana High Court
Suresh And Bijender Minor Sons Of Mange ... vs Fateh Singh Son Of Raman And Deceased ... on 5 December, 2013
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.3561 of 1986 (O&M)
and Cross Objection No.9-C of 1987
Date of decision:05.12.2013
Suresh and Bijender minor sons of Mange son of Phula through
their natural guardian Smt. Indrawati, their mother and Sh. Indrawati
widow of Mange, resident of Village Anupgarh, Tehsil and District
Jind.
... Appellants
Versus
Fateh Singh son of Raman and deceased through legal
representatives and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr.Bhoop Singh, Advocate,
for the appellants.
Mr. Gobind Sharma, Advocate,
for Mr. R.K. Gupta, Advocate,
for respondents 12 and 17.
Mr. Sudhir Mittal, Advocate,
for other respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J. (Oral)
1. The following substantial questions of law arise for consideration in the second appeal:-
1. Whether the lower appellate Court was justified in Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -2- holding that the property inherited by the father at a time when his own sons were not born will continue to be separate property, no matter that his father had himself obtained the property only from his male ancestor and on the date of birth of sons, the property took the character of coparcenary ?
2. Whether the lower appellate Court was justified in finding that all the sales were not supported by family necessities, the burden of which was on the defendants-
purchasers ?
2. The appeal is at the instance of the plaintiffs, who filed the suit challenging the sale effected by their father 1st defendant. The plaintiffs' contention was that all the suit properties were joint family properties, of which the plaintiffs were the coparceners. Their father Mange came by larger extent of property from the hands of his father Phula. The latter died in the year 1961. After his death, mutation had been entered referring to the Phula's widow, Mange (son) and three of the daughters of Phula as obtaining equal shares. The plaintiffs would contend that all the properties were joint family properties in which his father Mange had an equal share with his father and only a half share at a notional partition fell to be divided between the widow, son and daughters equally. Consequently, Mange held 6/10th share of joint family interest, while the widow, all Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -3- daughters of Phula had a 1/10th share. The mutation recording the shares of larger extent to the widow and the daughters was not correct. The plaintiffs would contend that the father engaged himself in indiscriminate sales that started in the year 1970 and later a spurt of sales from 25.01.1974 to 25.09.1975. There were 12 sales in dispute where the plaintiffs were contending that the sales had not been for any legal necessity. The plaintiffs would contend that the property held by him was about 189 kanals 13 marlas of land, of which, apart from the shares which he obtained by way of release from his sisters, the major portion of the properties were ancestral properties in his hands and the sales of more than half of the total extent for low or inadequate consideration would not bind the plaintiffs. They were all liable to be interdicted at their instance.
3. The trial Court found that the properties were joint family properties and that the family was joint but held dealing with every item of sale that the sales had been effected by the father for family necessities and, therefore, binding on the plaintiffs. When the plaintiffs preferred the appeal, the lower appellate Court held that at the time when Phula died in the year 1961, Mange succeeded to his father and since the plaintiffs were not born at that time, the property held by him became the separate property of a sole surviving coparcener. Consequently, although all the sales were not valid and they were not supported by any family necessity, the Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -4- plaintiffs could still not claim any right in the properties by virtue of the fact that the father was the separate owner of the property in the manner it inferred on a proposition of law that it expounded.
4. The plaintiffs are in appeal before this Court contending that the lower appellate Court was in error in treating the property as separate property by the fact that the plaintiffs were not born at that time. When the properties survived to the father on the day of death of the grandfather Phula, it was separate property in his status as a sole surviving coparcener but the moment any son was born, his status quo property became a coparcener along with such son and his own interest was subjected to fluctuation. The plaintiffs would contend that the appellate Court had found the sales to be not fully supported by consideration and not supported by any necessity and consistent with its finding, the plaintiffs were entitled to secure the reliefs sought for by them. There is a cross objection by the defendants contending that the items of considerations had been fully proved and brought out in the judgment of the trial Court and the appellate Court was not justified in reversing the finding regarding the binding nature of the sales and the character of sales as for family necessities.
5. On the first point of law decided by the lower appellate Court that since the interest in all the joint family properties survived to the father on the death of the grandfather in 1961, with Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -5- no other male member, the property became the separate property of the father was correct only to a partial extent. A sole surviving coparcener will have an interest in the property which he could treat as his own without being fettered by any of the restrictions that were placed for management of joint family properties. However, this right will immediately be curtailed on the date of the birth of a male and the property held by the sole surviving coparcener will immediately become liable for fluctuation and be treated as a coparcenary of the father along with his son. The incident of coparcenary is such that the right obtains by birth and the nature of interest held by a coparcener would itself be in a state of flux. Describing Hindu Coparcenary in Mulla's Hindu Law (21st Edition, 2010), the author states:-
"Genesis of Coparcenary.- A coparcenary is created in the following manner: A Hindu male A, who has inherited no property at all from his father, grandfather, or great-grandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A, becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -6- C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of is birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener."
Referring to fluctuating interest, para 214 at page 330 of Hindu Law by Mulla states as follows:-
"214. Undivided coparcenary interest.- The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family."
The lower Appellate Court was, therefore, setting out the law incorrectly by finding that Mange continued to be the separate owner of the property in spite of birth of two sons to him. This is not in consonance with the conception of coparcenary and the finding to that effect that although the family was joint, the property Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -7- was a separate property of the father is set aside and it is held to be the joint family coparcenary property.
6. The powers of the father to sell coparcenary property were not unrestricted. The sales, however, could be effected even without joining the sons (i) for family necessities and (ii) for family benefit. Family necessity has been understood to mean any necessity which creates an obligation to the family to undertake and consequently, any debt contracted by the father even for his personal needs, so long as it was not for immoral or illegal purpose would be taken as supported by necessity. The sales of property which a father could support therefore ought to be for a reason which was a binding necessity. The binding necessity, as we have seen, would include an obligation to discharge an antecedent debt, namely, a debt which is antecedent in point of time to the date of sale.
7. If the sale could be supported for necessity which could include a discharge of a debt which was antecedent to the sale, the burden of proof of proving such necessities would be squarely on the purchaser. The relevant para from Mulla's Hindu Law is reproduced as under:-
"242. Burden of proof of necessity.-Where the manager of a joint Hindu family sells or mortgages joint family property, the purchaser or mortgagee is bound to inquire into the necessity for the sale or mortgage, and Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -8- the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity in fact, or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity."
8. If the burden of proof is on the purchaser, the purchaser is required to prove that he made enquiries and found that at the relevant time, the manager had contracted a debt and there was a need for sale of the property to raise a consideration to discharge that debt. How the debt is really applied may not be an obligation that the purchaser would take but he is bound to show that the debt existed as a matter of fact at the time when the sale was effected and there was a need to discharge the same. A recital in the sale deed could only be corroborative and will not by itself be taken as proof of existence of a debt or pressing need for discharge of the said debt. We will have to examine the existence of the debt and the pressing need for his discharge not merely with reference to the recitals in the sale deed but with reference to the evidence that is available for the same. In this case, the lower Appellate Court has held that all the sales were not supported by family necessities but since the learned counsel appearing on behalf of the respondents has sought to support the finding of the trial Court, I have undertaken the task of seeing whether there is any patent error in the Appellate Court Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 -9- judgment in reversing the decision of the trial Court with regard to the absence of legal necessity for the sales. The issue has been dealt with specifically by the Appellate Court under issue No.4. The lower appellate Court held that there was overwhelming evidence to show that Mange had contracted some loans from private persons through promissory notes and he had also contracted loans for the purchase of cattle and installing tubewell, but there was no evidence on the file that there was any actual pressure to the estate or there was a danger to be averted for the sales to be made or to secure any benefit to the estate. The lower appellate Court was, therefore, posing a question of law correctly that what is required to be proved is not merely the consideration recited in the sale deeds as having been passed to the vendor, but it was required to be shown that the consideration was such that the amount had been utilized for the family necessities. The extent of enquiry for utilization by the purchaser would extend not so much to its application but it certainly would extend upto the stage of satisfaction of the purchaser that the joint family manager had contracted a loan and he had made enquiries that would satisfy himself that the repayment of loan was imminent and that if not paid, there was a danger of pressure in the property that would create a danger of losing a larger extent of property than what was intended to be sold. After all a person can sell a property only if he can thwart a greater danger. A purchaser Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 10 - cannot satisfy himself that contracting a debt itself could be more dangerous than sale of the property. If contracting of debts as made out was only to purchase more properties or for discharge of loans so that a larger extent of properties are not sold then there has to be a proper enquiry and evidence placed before the court that but for the sale, father would have lost all or more of other properties as well.
9. In this case, the learned counsel appearing on behalf of the respondents would take me through each one of the sales that had been dealt with by the trial Court, which, according to him, explains and properly appraises respective needs for sale of the property. All but one sale was found by the appellate Court to be not binding.
10. The 1st sale was a sale which was taken on alleged preemption at the instance of the purchaser and the court therefore found that it is not possible for the plaintiffs to interdict such a sale. I will affirm the same and find no reason to upset the said finding. With reference to each one of the sales, it can be noticed that the purchasers have understood that the burden was on them and, therefore, they have attempted to bring fairly a large volume of evidence to support their contentions.
11. Sale No.2 which the trial Court has considered was sale of 6 kanals 18 marlas of land made on 23.04.1974 for a consideration of `5,500/-. The sale was for cash consideration and Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 11 - DW2 had given evidence to contend that the father had purchased a buffalo for `2,500/-. The consideration for the property was more than twice the amount of what he was said to be using for purchase of a buffalo. The major part of consideration was, therefore, cash and there was no proof for the same for any necessity.
12. The 3rd sale was for `6,000/- through a document dated 25.01.1974 again for cash receipt. However, the evidence was that `1,500/- was to be used for discharge of loan to a cooperative society and `1,500/- was to be given to a creditor-Dariya. The creditor himself was examined as DW7 and a document which was said to contain details of the loan was filed as DW7/2. DW9 gave evidence of the alleged loan. DW1 Hari Singh was also examined to say that the balance of sale consideration recited was for purchase of bricks and it was used for construction of a house by the defendants. It will, therefore, be seen that one half of consideration was shown through a document made at that time and the remaining portion of consideration was stated to be for purchase of bricks for construction of house. I would find that the sale consideration has been linked to the loan contracted by the father and established through the evidence of DW1, DW7 and DW9.
13. The 4th sale was a document executed on 18.03.1974 for `5,500/-. There was no recital of any necessity, but the evidence given by DW1 was that he made enquiries and he gathered that Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 12 - `3,000/- had been spent by the vendor for the purchase of an ox and `1,500/- had been spent for purchasing bricks from one Abhay Ram and Ram Kishan. I would find no proof as necessary for the sale made and even the recitals in the sale deed did not support a plea of necessity.
14. As regards the 5th sale, dated 11.06.1973, it was for a consideration of `21,000/-. The entire amount was said to be by way of cash consideration. An attempt was made through the evidence of DW1, DW2 and DW11 to state that it was used for discharge of some mortgage and for other necessities. The evidence of DW11- Lachhman Singh was to the effect that he knew that there had been a loan from Cooperative Bank and that he also knew that he had borrowed from one Sultan to the tune of `1,000/-. The Cooperative Bank loan itself was only `1,100/- as the evidence of DW6-a staff from the Cooperative Bank, would reveal. The consideration was essentially for cash paid and it does not spell out any necessity in the manner canvassed.
15. The 6th sale was on 17.05.1974 for `6,000/- and the consideration recited was for business and for some purchase of cattle. There was no evidence that the father was ever engaged in any business other than agricultural operations. The recitals of consideration was `2,500/- and `3,500/-, both for cash. I do not find any value through the documentary support of DW6/A which Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 13 - spells out some loan for `2,500/- on 25.07.1973. It could not have supported a transaction of sale for `6,000/-. I would find this sale also is not supported by any necessity for sale.
16. The 7th document was executed on 15.04.1974 for `2,235/- and the evidence to support this case was brought through DW1 and DW6. DW6's evidence, I have set out referred to three payments for the loan contracted to the extent of `1,100/-. The 1st defendant is reported to have repaid `675/- on 25.12.1973, `325 on 12.06.1974 and `300/- on 25.09.1974. No transaction comes near the date of sale under P15. It is, therefore, difficult to connect any of these loan transactions to the sale.
17. The 8th sale deed is Ex.P11 dated 25.07.1973. The consideration recited was cash paid for `7,000/-. The evidence, however, through DW11 was that there had been a mortgage in his favour for `2,500/- and it was discharged. I would find that the mortgage was discharged on 13.06.1973 itself and on the date of sale, there had been no subsisting mortgage to discharge. There was no recital that the consideration was for a discharge of loan which had already taken place for cash but not recited on that deed. In fact, it would show that the entire consideration was through cash and not for discharge of any loan.
18. The 9th sale was a document dated 21.12.1973 for `5,000/-. It refers a cash consideration of `5,000/- received on two Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 14 - dates, namely, `2,500/- on the date of agreement and `2,500/- on the date of sale. DW11, DW12 and DW13 were all examined to support the consideration for the sale, but none of them takes us anywhere to support the need, for, sale for DW11's evidence refers to a mortgage as discharged through sale. We have already seen that the mortgage was redeemed on 13.06.1973 itself and, therefore, P6 cannot be connected to the same. The evidence of DW13 made reference to a loan of `950/- from Sultan and this could hardly be supported to a sale of property for `5,000/-. Then this cannot also be supported by any necessity.
19. The 10th sale on 12.09.1973 was in favour of Partap Singh under P9 for `4,000/-. The reference was to necessity for sinking a tubewell and for discharge of loan to the Cooperative Bank. The loan to Cooperative Bank as spoken to by DW4 does not come anywhere about the time when amount had been paid to the society. Of the three payments, one payment was the most proximate, namely on 25.09.1974 for `300/- as having been paid. A sale for `4,000/- could not support a debt for discharge of such a small amount.
20. The 11th sale under Ex.P10 was dated 25.09.1975 for a consideration of `4,600/- and the evidence was DW9 claimed that his own debt of `2,400/- was repaid and DW23 said that his loan of `2,500/- had been repaid. No details of the loans are revealed nor Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 15 - any document brought to support such a claim. I would not, therefore, find any support for the Ex.P10 as well.
21. The 12th sale was dated 10.11.1973 for `1,500/-. The whole sale was for cash consideration.
22. From the survey of all the documents and examination of all the evidence, I find no support for sustaining any of the sales except Ex. P14 viz., Sale Deed No.1685, dated 25.01.1974, where a property has been sold for `6,000/-. I find the support through other documents and the evidence only for this transaction and I will uphold only this sale deed. All other sale deeds cannot be said to be for any family necessity. The decision of the lower appellate Court regarding the want of necessity for sales is confirmed.
23. All the sales effected except P14 are set aside. The plaintiffs shall have the right of recovery of the properties from the respective purchasers through a decree for recovery of possession on condition that the respective sale consideration is deposited by the plaintiffs for the credit of the respective purchasers. Interest for the consideration is set off by the benefit of enjoyment of the properties. The restoration of benefit by way of refund follows the principle enunciated under Section 31 of the Specific Relief Act. The judgments of the courts below are set aside and the second appeal is allowed with costs. Counsel's fee `10,000/-. The cross objection is Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.3561 of 1986 (O&M) and Cross Objection No.9-C of 1987 - 16 - dismissed except for one sale which is preserve under Ex.P14 in favour of respondents 5 and 6.
(K.KANNAN) JUDGE 05.12.2013 sanjeev Kumar Sanjeev 2013.12.13 10:41 I attest to the accuracy and integrity of this document chandigarh