Dismissed

Narhari Piraji Tipre and Others v. Ramkishan Maroti Bhise and Another

Bombay HC22 Jul 2010SA/484/1989

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for partition, this court upheld the first appellate court's finding that the sale of ancestral land was executed for legal necessity, including repayment of loans and marriage expenses, thereby dismissing the appeal.

What did the court decide?

Second appeal dismissed, confirming the sale deed executed for legal necessity and rejecting the claim for partition.

Narhari Piraji Tipre and Others Vs Ramkishan Maroti Bhise and Another — Partition | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

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SECOND APPEAL NO.484 OF 1989

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1. Narhari s/o Piraji Tipre, age 22 years, occupation agriculture,r/of village Waghala, Taluka Pathri, District Parbhani.

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2. Rama s/o Piraji Tipre, age 17 years, minor, u/g of real mother Lobhabai w/of Piraji Tipre, age 45 years, occup. agril. r/of Waghala, Tq.Pathri,

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3. Narayan s/o Piraji Tipre, age 35 years, u/g of real brother Narhari s/o Piraji Tipare,r/of Waghala, Tq. Pathri, District Parbhani.

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4. Lobhabai w/o Piraji Tipre, Appellants/ aged 45 years, occup.Agril. Original r/of Waghala, Taluka Pathri Plaintiffs (Resp.4 deleted as per the Order of Registrar dated 20.8.006.)

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versus

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1.Ramkishan s/o Maroti Bhise,
age 39 years, occup. Agril.
r/of Waghala, Taluka Pathri
District Parbhani.

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(Since deceased, through
legal heirs as under) :-
1-A.Ashok s/o Ramkishan Bise,
age 45 years, occup. Agril.
r/of Waghala, Tq. Pathri,
District Parbhani.

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`1-B.`	`Baba s/o Ramkishan Bhise` `age 35 years, occup.Agril.` `r/of Waghala, Tq.Pathri,` `District Parbhani.`
`1-C.`	`Shashikalabai w/o Ramkishan` `Bhise, age 60 years, occup.` `household, r/of Waghala,` `Tq.Pathri, Dist. Parbhani.`
`1-D.`	`Suchita d/of Ramkishan Bhise,` `age 18 years, occupation:` `household, r/of Waghala,` `Tq.Pathri, Dist.Parbhani.`
`1-E.`	`Sau. Chaya wo Ramrao Wagh,` `age 26 years, occup.household,` `r/of Pokharni, Taluka and` `District Parbhani.`
`1-F.`	`Sau.Daivshala w/o Ankushrao` `Tambe, age 24 years, occup.` `householod, r/of Ekurkha,` `Tq. Purna, District Parbhani.`
`2.`	`Piraji s/o Gangaram Tipare,` `Respondents/` `age 50 years, occup. Agril.` `Orig. Defts.` `r/of Waghala, Tq. Pathri.`
`-----` `Shri` `Korha`	`-------------------------------------------------` `Mukul Kulkarni, Advocate, holding for Shri A.H.` `lkar, Advocate for the appellants. Shri S.S.`
`Badve` `-----`	`, Advocate for Respondent Nos. 1-A to 1-F.` `-------------------------------------------------`

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Coram : P.R.Borkar, J.
Date : July 22, 2010.

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ORAL JUDGMENT

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01.This second appeal is preferred by
original plaintiffs whose suit bearing R.C.S. No.
56 OF 1979 for declaration that the sale deed

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executed by Defendant No.1 in favour of Defendant
No.1 is not binding on 1/5th shares of plaintiffs
in the suit property and that they were entitled
to partition and separate possession of their
share in the suit land was decree by the learned
Civil Judge, Junior Division, Parbhani on
30.7.1981; which judgment and decree was reversed
by the learned II Additional District Judge,
Parbhani, in Regular Civil Appeal No.104 of 1981
decided on 31.3.1989, thereby dismissing the suit
of the plaintiffs-present appellants.

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02.Briefly stated, the facts giving rise to
this appeal are as under;

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Appellantshereinaretheoriginal

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plaintiffs. Plaintiff Nos. 1 to 3 are the sons of
Respondent No.2 Piraji and Plaintiff No.4 is the
wife of Respondent No.2. Respondent No.1 and 2 are

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original defendant No.1 and 2 respectively.
Respondent No.1 died during pendency of the
appeal and is represented by his legal heirs.
Land bearing survey No.8 admeasuring 16 acres 1

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guntha situated at village Waghala, Tq. Ppathri,
District Parbhani is the ancestral property of
Respondent No.2 Piraji-original defendant No.2. By
sale deed dated 18.1.1975, Piraji sold southern
side 1/2 portion of the said land to Respondent
No.1-Ramkishan for Rs.7000/=. Appellants-

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original plaintiffs filed suit on 26.6.1979
alleging that the sale deed dated 18.1.1975
executed by Respondent No.2 in favour of
Respondent No.1 was executed without any legal
necessity and as such not binding on the shares of
the plaintiffs in the suit property. Plaintiffs-
appellants, therefore, sought declaration that the
said sale deed is not binding on them. and they
also sought partition and separate possession of
their 1/5th share in the suit property.

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3.Respondent No.1 Ramkishan filed Written

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Statement at Exhibit 18 and denied all averments
in the plaint. He contended that the sale deed
was executed by Respondent No.2 as Karta of the
family for meeting house expenses and repayment of
loans. He denied that the sale was not for legal

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necessity and as such not binding on plaintiffs.

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4.Respondent No.2 Piraji filed written

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statement at Exh.9. He made out a case that in

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between Respondents-defendants, there was no
transaction of sale. The amount of Rs.7000/= was

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not received by him towards sale. However,
according to Respondent No.2, he was in financial
difficulties and therefore he had taken loans

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from Respondent No.1 from time to time.
According to Respondent No.1, Respondent No.1 is
money lender from whom he had taken loan of Rs.

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8000/= and Respondent No.2 was demanding repayment

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of the said amount. It was agreed between them
that Respondent No.2 would execute a nominal sale

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deed in favour of Respondent No.1 and hand over
possession of the suit land to him and in turn,
Respondent No.1 would execute a deed of conveyance

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in favour of Respondent No.2. Accordingly,

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Respondent No.2 executed the sale deed in favour
of Resp. No.1 which was nominal and Respondent No.

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1 executed an agreement for re-conveyance in

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favour of Respondent No. 2. The suit Property

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was put in possession of Respondent No.1. It is
alleged that the originally, amount of Rs.2000/=
was taken as loan, but with interest the amount
was shown to be more than what was borrowed.

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05.The appellants-plaintiffs went to trial
with averments in the plaint that it was a sale
transaction, but it was not for legal necessity
and as such not binding on them. The entire
evidence was led on that line.

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06.The trial court accepted the case of the

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plaintiffs-appellants and held that sale deed by
Respondent No.2 in favour of Respondent No.1 was
not for legal necessity and as such was not
binding on the plaintiffs-appellants. The trial
court decreed the suit. As against that, present
respondent No.1 filed first appeal in the District
Court. Before District Court same case, as made

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out in the plaint described above, was pursued.
The District Court did not accept the case that
the sale was not for legal necessity and held that
the sale deed executed by Respondent No.2 was

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binding on the appellants-plaintiffs and,
therefore, allowed the appeal and dismissed the
suit.

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07.Respondent No.2 did not enter into

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witness box nor did he attempt to prove the case
made out in paragraph 2 of his written statement
(Exh.9). The plaintiffs examined no witness to
prove the said case nor they sought any alternate
relief. Unfortunately, this is a second appeal
and by now, much water has flown. Although this
appeal is pending since 1989, the fact remains

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that though the agreement for reconveyance was
placed on record with list Exh.13, remained in
file "D" as no attempt was made to prove the same

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nor Respondent No.2 Piraji filed any suit for
reconveyance of property on the basis of said
agreement. Be that as it may.

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08.This second appeal is admitted 15.12.1989
on ground Nos. III to VI, XI and XII in the

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memo of appeal. For the purpose of convenience,
following substantial question of law is

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reformulated on 21.7.2010.

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"Whether Respondent No.1-purchaser
(original defendant No.1) has proved
that there was legal necessity for which
original respondent No.2 (defendant No.2)
has sold the suit land to him and that he
had made necessary enquiries to satisfy
about existence of legal necessity ?"

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09.Heard Advocate Shri M.S. Kulkarni for the

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appellants and Shri S.S. Badve, Advocate for
Respondents No.1-A to 1-F. Together, both the
Advocates have taken me through entire record and
even through the depositions of the witnesses.

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10.Shri Mukul Kulkarni, learned Advocate for

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the appellants, has taken me through paragraphs 11
to 14 of the judgment of the trial court wherein
aspect of legal necessity is discussed. The trial
court disbelieved the case of defendant No.1
mainly because evidence of Defendant No.1 was not
corroborated by any document when he said that the

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land was sold for repayment of dues of the society
and tahsil office and for performance of marriage

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of appellant No.1. Defendant No.1 stated that the
documents regarding tahsil office dues were placed
on record. Though respondent No.1 examined two

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more witnesses from the society office, so also
one Santaji, their evidence is disbelieved. On
the other hand, the first appellate court for
reasons discussed in details in paragraphs 13
onwards of its judgment, has come to the

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conclusion that the trial court committed error in
disbelieving oral evidence without any reason. In

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fact, original kirdbook and ledger of the

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cooperative society were brought before the court
and inspected.

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11.It may be noted here that Respondent No.

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2, who had executed sale deed, has stated that he
had taken loan of Rs.2,000/= from Respondent No.1
and that the amount was increased due to interest

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thereon and as per the case of Respondent no.1
amount of Rs.8000/= was due when the sale deed was
executed. No attempt is made by the plaintiffs to
rebut the said contention. There is no reason why
respondent No.2 should have come with such a case.

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In fact, agreement for sale, the copy of which
remained unproved on record and which is of the
same date as that of the sale deed, shows that the
defence taken by respondent No.2 (deft.No.2) may
have some merits. However, the plaintiffs did not
pursue their case on that line for reasons best
known to them and their advocate in the trial
court.

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12.In order to prove legal necessity,
Defendant No.1-Respondent No.1 Ramkishan examined
himself at Exhibit 41 and stated that respondent

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No.2 sold suit land for repayment of debts of
cooperative society, so also of tahsil office.
There was also debt of one Santaram as defendant
No.2 had obtained an amount of Rs.2000/= on the
basis of land. According to Respondent No.2,
Respondent No.2 also performed marriage of
appellant No.1 for second time by utilising the
amount taken from him. So, the details are given.
It is argued by Advocate Shri Mukul Kulkarni that
Respondent No.1 Ramkishan did not state that he
had made any queries with anybody. But,

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examination-in-chief of Respondent No.1 shows that
he was knowing the details of necessity for which
land was sold and he gave those details.

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13.Respondent No. 1 examined one Dattatraya
Navale as DW-3 at Exhibit 43. He deposed that the
sale was for repayment of loans of tahsil office
and credit society and also for performance of
marriage of appellant No.1. This witness is from
the same village.

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14.Then there is evidence of DW-4 Santram at
Exhibit 44. He stated that he had taken land from
Respondent No.2 on crop share basis and he had
paid Rs.1000/= to Respondent No.2. The land was
given for cultivation for one year only and
thereafter he left the land for which he got an
amount of Rs.1000/= from Respondent No.2. From
the evidence of witness Santram it appears that an
amount of Rs.1000/= was paid by Respondent No.2 to
this witness to get the land released from him.
Santram in his cross examination stated that he

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was in possession of the land in lieu of Rs.

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1000/=. There could not have been oral evidence
regarding such transaction. The fact remains that
Santram was in possession of the property and gave
up possession of the same after one year.

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15.At Exhibits 49 and 56, there is evidence

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of DW-5 Marotrao and DW-6 Tulsiram. Both were
working as Secretary in cooperative credit society
of Waghala. Marotrao had been Secretary since
1979, whereas Tulshsiram was Secretary during the
period 1974 to 1977. Both have stated that
Respondent No. 2 was in arrears of loan of the
society and as on 26.5.1973, he owed Rs,1650/= to
the society towards loan obtained by him. They

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also deposed that on 27.3.1973, defendant No.2
paid entire loan. It is to be noted that the sale
deed is dated 18.1.1975. DW-5 Marotrao stated
that the arrears of s.1650/= were exclusive of
interest and the interest was of Rs.320/=. This
witness being Secretary since 1979, he was in

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possession of record as on the date of his
deposition i.e.17.12.1980 and he deposed on the

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basis of said record as he was knowing business
affairs of the society. DW-5 Marotrao did not
produce copies of books of accounts, but DW-6
Tulshiram had brought original kird and on that
basis deposed that an amount of Rs.400/= was
repaid by defendant No.2 on 21.1.1975 and an
amount of Rs.650/= on 6.2.1975. On 27.3.1975 he
deposited Rs.967/=. According to this witness, the
total amount repaid by deft No.2 is Rs.2017.00/=
including principal amount and interest thereon.

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In cross examination of Defendant No.1
Ramkishan it is brought on record that an amount
of Rs.400/= to Rs.500/= was repaid in tahsil
office.

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16.Considering the facts and circumstances

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of the case, the first appellate court came to the
conclusion that the legal necessity was proved.
The judgment of the first appellate court is well

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reasoned and cannot be termed as perverse. After
giving anxious consideration to the facts,
evidence and documents on record, I hold that
there was legal necessity for which the sale deed

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was executed by defendant No.2 in favour of
defendant No.1. The transaction was entered into
by defendant No.1 for the purpose of satisfying
various loans and also for getting back land from
Santram and also for marriage of appellant No.1.

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17.In the result, this second appeal fails

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and the same is accordingly, dismissed.

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pnd/sa484.89 (P.R.BORKAR, J.)

Narhari Piraji Tipre and Others v. Ramkishan Maroti Bhise and Another

Case brief

What is this about?

What did the court decide?

Narhari Piraji Tipre and Others v. Ramkishan Maroti Bhise and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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